Cyberbullying & the Law: Free Speech’s Next Frontier

[WSJ_law_blog]

Remeber J.S.? Probably not. She’s an eighth-grader in Pennsylvania who was suspended for creating a fake MySpace page depicting her principal as a pedophile and a sex addict. In September, U.S. District Judge James M. Munley upheld the constitutionality of the suspension.



Munley, distinguishing the Supreme Court’s decision in Tinker v. Des Moines — the landmark First Amendment case that struck down a school ban on armbands to protest the Vietnam War — relied instead on other cases, such as Bethel School District v. Fraser, where the justices held that “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”

But like the more publicized MySpace-related case — the criminal case against Lori Drew — cyberbullying in the school context is just as unsettled an area of law as cyberbullying by adults. Indeed, it turns out that J.S. v. Blue Mountain School District is one of a pair of school & speech cases now making its way through the 3rd U.S. Circuit Court of Appeals. Each involves students who were disciplined for ridiculing their principals with fake MySpace pages. Here’s a story from the Legal Intelligencer.

In the other case, a Western District of Pennsylvania judge ruled that school officials violated the First Amendment by suspending a student for off-campus speech. In Layshock v. Hermitage School District, U.S. District Judge Terrence F. McVerry found that school officials went too far when they suspended Justin Layshock for creating a fake profile of Hickory High School’s principal that said he was a “big steroid freak,” a “big *******” and a “big *****” who smoked a “big blunt.”

Judge McVerry concluded that Layshock’s prank took place off campus and that none of the in-school events amounted to a true disruption of school activities. As a result, he said, the school had no power to discipline Layshock for creating the Web site.

The Layshock case came up for oral argument yesterday before a three judge panel. Anthony G. Sanchez of Andrews & Price reportedly urged the judges to overturn McVerry’s ruling, arguing that the Internet has “blurred the lines as to what constitutes on-campus and off-campus.” Sanchez argued that Supreme Court precedent, such as Morse v. Frederick, supported extending the school’s power to punish conduct that took place in a student’s home — as was the case in Layshock — because Layshock used the school’s Web site to obtain the principal’s photo and had clearly designed the site with the school community as his target audience.

Sanchez reportedly urged the judges to look beyond Supreme Court precedent, saying lower courts have upheld the right of school officials to discipline students for throwing eggs at a teacher’s home and for selling drugs off campus.

One of the judges responded, “There’s no constitutional right to throw an egg.”