First Amendment Shielding of Vulgar, Demeaning Internet Expression by Students

2011 U.S. App. LEXIS 11994

"A Win for Students’ Off-Campus Expression"

By Martha McCarthy

Chancellor’s Professor and Chair, Educational Leadership & Policy Studies,Indiana University

On June 13, 2011, the Third Circuit en banc rendered decisions in Layshock v. Hermitage School District (2011 U.S. App. LEXIS 11994) and J.S. v. Blue Mountain School District (2011 U.S. App. LEXIS 11947), which had been eagerly anticipated for more than a year. The appeals court en banc held in both cases that school districts cannot punish students for expression that originated outside school and did not create a substantial disruption of the school environment. The recent rulings were precipitated by opposing Third Circuit panel decisions regarding the school district's authority to discipline students for posting vulgar and disparaging mock profiles of their principals on MySpace.

Layshock’s First Amendment Claim

Justin Layshock, a high school senior, used his grandmother’s computer to post the
parody of his principal, whose profile picture was copied from the school’s website. The vulgar parody linked the principal to drugs, alcohol, and prostitutes. The MySpace profile was widely viewed by students outside school and even by some in the school’s computer class, and Layshock accessed the profile once at school. Several classmates subsequently posted similar profiles, which the principal found demeaning. The principal contacted the police about filing defamation or harassment charges, but no criminal or civil charges were filed. Layshock’s was the least vulgar of the students’ postings, but he was the only student punished. Layshock originally was suspended for 10 days, placed in an alternative education program for the remainder of the year, barred from extracurricular activities, and prohibited from participating in the school’s graduation ceremony, but these disciplinary actions, except for the suspension, were rescinded in exchange for the parents withdrawing their motion for a preliminary injunction. Layshock and his parents challenged the suspension, and the district court granted summary judgment to the Layshocks. The Third Circuit panel affirmed in February, 2010. Applying the disruption standard established in Tinker v. Des Moines Independent School District (503 U.S. 503 (1969)), the appellate panel agreed with the district court that Layshock could not be punished for posting the parody because it did not trigger a substantial disruption of the educational process.

The full Third Circuit Court of Appeals vacated the panel ruling and reheard this case along with J.S. in June 2010 and recently again affirmed the district court’s grant of summary judgment to Layshock on his First Amendment claim. Acknowledging that the parody was not disruptive and thus not excluded from constitutional protection under Tinker, the school district contended that Layshock’s expression was lewd and vulgar, which is not constitutionally protected under the Supreme Court’s ruling in Bethel School District v. Fraser (478 U.S. 675 (1986)). However, the Third Circuit declined to apply Fraser to off-campus lewd and vulgar speech, reasoning that Fraser applies only to student expression occurring at school. Applying Tinker instead, the Third Circuit required the expression to be linked to a school disruption to justify disciplinary action. The court seemed to rely heavily on an earlier Second Circuit decision, Thomas v. Board of Education (607 F.2d 1043 (2d Cir. 1979)), in which the appeals court struck down disciplinary action against students for off-campus distribution of a satirical magazine with some vulgar language as there was no evidence of an adverse impact on the school. The only connection with the school was that students had done some work on the publication in school after hours and stored copies of the publication in a classroom closet. The Third Circuit found the relationship between Layshock’s conduct and the school to be far less than the students’ connection to the school in Thomas. The court concluded that “it would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities , to reach into a child’s home and control his/her actions there to the same extent that it can control” conduct in school-sponsored activities (p. *28). The Third Circuit reasoned that in cases where disciplinary action has been allowed, students’ Internet expression has caused a substantial disruption of the school.

J.S’s First Amendment Claim

In the second case, two eighth grade female students were suspended for posting on MySpace a parody of their principal created on the weekend at home. These students also used the principal’s picture from the school’s website. The principal was depicted as a sex addict and pedophile who enjoyed “hitting on students and their parents” among other things (p. *4). J.S. originally made the profile public but then limited it to about 20 friends, and no students viewed the profile at school because MySpace was blocked on school computers. The principal was upset and threatened legal action against the families, but after contacting the police he did not file charges. J.S. and her friend were suspended and barred from school functions for 10 days for posting the profile. School authorities asserted that the profile caused a disruption at school (e.g., teachers having to quiet their classes, staff having to alter their schedules to address the issue, students decorating J.S.’s locker when she returned from her suspension). J.S. and her parents brought suit, and the district court granted the school district’s summary judgment motion on all claims. The court specifically noted that Tinker’s disruption standard did not govern this case because there was no substantial disruption at school. However, the court reasoned that the students could be disciplined under Tinker for expression invading the rights of others, specifically the principal’s rights in this case. Moreover, the court found the vulgar and offensive expression to be unprotected based on Fraser. A divided Third Circuit panel affirmed the district court’s judgment for the school district, concluding that although the incidents of alleged disruption were unpersuasive, school authorities could reasonably forecast a future disruption from the continued posting of the profile.

On the substantive First Amendment question, the Third Circuit en banc by an eight-to-six vote reversed the district court’s grant of summary judgment to the school district, finding a violation of the student’s expression rights. The appeals court relied on the Tinker disruption standard, and in contrast to the appellate panel, the full Third Circuit was hesitant to allow an assessment of possible future disruption to justify disciplinary action against J.S. The court noted that under Tinker, the mere apprehension or fear of disruption was not sufficient to curtail students’ right to silently protest governmental policies by wearing black armbands. The full Third Circuit reasoned that there was no way to know that a disruption would have resulted if the principal had not acted swiftly against the students. As in Layshock, the en banc Third Circuit in J.S. held that Fraser does not authorize schools to punish off-campus lewd and vulgar expression and further held that student expression interfering with the rights of others cannot be curtailed under Tinker unless linked to a school disruption.

Other Claims

The Third Circuit en banc found the parodies in both cases so outrageous that no one would believe that they were serious. However, the appeals court affirmed the courts below in rejecting the parents’ Fourteenth Amendment claims that the schools’ imposition of discipline for off-campus expression interfered with their liberty rights to control the upbringing of their children. The schools’ actions did not force or prevent the parents from disciplining their children. Also, the Third Circuit did not find the schools’ policies pertaining to the use of technology to be unconstitutionally vague or overbroad.

In both cases, there were concurring opinions. Two justices wrote separately in Layshock to emphasize that Tinker’s disruption standard does apply to students’ off-campus speech that disrupts the school. Conversely, four judges signed a concurrence in J.S., contending that Tinker does not apply to off-campus expression at all. There was no dissent in Layshock, but 6 of the 14 judges dissented in J.S., arguing that school authorities produced sufficient evidence of a school disruption to satisfy Tinker and justify the discipline imposed on J.S. for her off-campus expression.


These recent Third Circuit decisions represent a win for students in terms of constitutional protection of their off-campus electronic expression. Also, the court made the most definitive statement to date confining the application of Fraser to expression that occurs at school. While endorsing Tinker’s disruption standard to govern students’ off-campus expression, the Third Circuit judges were not in agreement on the reach of Tinker in this regard. It remains to be seen whether other courts will follow a majority of the Third Circuit in equating off-campus creation and distribution of print material that was at issue in Thomas to off-campus Internet expression that potentially reaches the entire student body.

The Third Circuit distinguished these two cases from the recent Second Circuit opinion involving disciplinary action against a student for her vulgar blog entries from home that school personnel reasonably could forecast would be disruptive; the court found school authorities immune from liability for their actions in this unsettled area of law (Doninger v Schwartz, 2011 U.S. App. LEXIS 8441, 2d Cir., April 25, 2001). The Third Circuit reasoned in part that the student’s disqualification to run for class office in Doninger was a less significant punishment than the suspensions in Layshock and J.S., a conclusion some might question. The Third Circuit also considered the student’s vulgar urging of classmates to criticize school authorities in Doninger to be more detrimental to the school than the posting of fictitious parodies on MySpace.

The Third Circuit’s endorsement of students’ off-campus electronic expression rights may encourage additional harassment and defamation suits initiated by students and school personnel to challenge demeaning and vulgar student Internet expression. Also, public schools may be motivated to strengthen their Internet acceptable use policies and to become more assertive in reaching out to parents regarding the potential negative impact of their children’s harmful expression via social networks. And there undoubtedly will be more First Amendment challenges to MySpace and Facebook postings, with a range of possible judicial opinions. Some courts may follow the Third Circuit in siding with students’ expression rights, whereas others may back the schools or agree with the Second Circuit that the law is too unsettled for liability to be assessed against school authorities. As technology becomes increasingly integrated into daily life, clear guidance on the legality of electronic expression is needed, so it seems likely that the Supreme Court eventually will have to render an opinion on this volatile topic.