Rulings Leave Online Student Speech Rights Unresolved
By David Kravets
February 4, 2010
Do American students have First Amendment rights beyond the schoolyard
The answer is yes and no, according to two conflicting federal appellate
decisions Thursday testing student speech in the online world.
"Ultimately, the Supreme Court is going to have to decide if there ever
is a time students have full-fledged First Amendment rights," said Frank
LoMonte, executive director of Virginia-Based Student Press Law Center.
He's one of the attorneys in the cases the 3rd U.S. Circuit Court of
The U.S. Supreme Court has never squarely addressed the parameters of
off-campus, online student speech, but might soon. So far, lower courts
appear to be guided by a 1969 high court ruling saying student
expression may not be suppressed unless school officials reasonably
conclude that it will "materially and substantially disrupt the work and
discipline of the school."
In that landmark case, the Supreme Court said students had a First
Amendment right to wear black armbands to protest the Vietnam War. But
that precedent, which addressed on-campus speech, is now being applied
to students' online speech four decades later.
One of the cases favoring student speech decided Thursday concerns a
senior and honors student. In 2005, the Pennsylvania high school student
was suspended 10 days after he created a mock MySpace profile of his
The profile said the principal took drugs and kept beer at his desk. A
federal judge overturned the suspension, ruling last year the fake
profile was not created at school and did not create a "substantial
disruption" at school.
"Public schools are vital institutions, but their reach is not
unlimited," U.S. District Judge Terrence McVerry of Pennsylvania ruled.
On appeal, the 3rd Circuit agreed, saying Thursday "the reach of school
not without limits." (.pdf)
The other case decided Thursday, by a different three-judge panel from
the same circuit, went against a 14-year-old Pennsylvania junior high
student. She mocked her principal with a fake MySpace profile. The 2007
profile insinuated the principal was a sex addict and pedophile.
She was suspended for 10 days. Her parents sued, citing the child's
First Amendment rights.
On appeal, the the 3rd Circuit noted that teachers complained that,
among other things, the profile disrupted the classroom because students
were talking about the profile rather than paying attention to class.
"We decline to say that simply because the disruption to the learning
environment originates from a computer located off campus, the school
should be left powerless to discipline the student
(.pdf) the three-judge circuit panel wrote.
Dozens of similar cases scatter the federal courts. LoMonte, of the
Student Press Law Center, said the only other appellate decision on the
matter concerns a Connecticut high school junior punished for calling
school officials "douchebags" in her blog.
The 2nd U.S. Circuit Court of Appeals last year upheld her punishment of
being forbidden to run for a class office. The court reheard the case
last month <http://www.splc.org/newsflash.asp?id=2009> . A decision is