Facebook/MySpace and the First Amendment

So you are convinced your algebra teacher is the worst teacher ever.  Why not vent your frustration with a condemnatory Facebook group or a fake MySpace profile?

Two Third Circuit cases that came out earlier this month point out the unsettled nature of the law of Freedom of Speech in the context of internet postings by students attacking school administrators.  Both cases involved MySpace postings; a Magistrate Judge’s opinion from Florida involving similar facts and Facebook also came out earlier this month.  Although handed down on the same day, February 4, 2010, Layshock v. Hermitage School District, 2010 WL 376184, and Snyder v. Blue Mountain School District, 2010 WL 376186 reach opposite and seemingly inconsistent results.  They also point out the lack of any real direction from the Supreme Court on point.

Both opinions review the same major Supreme Court cases, so let’s begin there.  We start all the way back in 1969 with the Vietnam protest case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503.  Students who wore black arm bands to protest the Vietnam War were suspended from school and the Supreme Court upheld their First Amendment argument and held that expression may not be suppressed in a school setting unless it would “materially and substantially disrupt the work and discipline of the school.”  The Court also stated, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Finally, the Court also made it clear that the school environment was “unique” and had to be factored in to any First Amendment argument.

Next in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) the Court upheld the suspension of a student who had delivered a speech using “an elaborate, graphic, and explicit sexual metaphor.”  Therein the Court distinguished Cohen v. California, 403 U.S. 15 (1971) in which it overturned the conviction of a man who wore a jacket with an obscene draft protest to a courthouse.  The Fraser court stated, the “First Amendment gives a high school student the classroom right to wear Tinker’s armband but not Cohen’s jacket.”

[I’ll skip Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) which is distinguishable by the fact that the speech in question was in a school-sponsored newspaper.]

Of course, the best-known recent case is “BONG HiTS 4 JESUS,” Morse v. Fredrick, 551 U.S. 393 (2007).  Recent, yes, but still having nothing to do with the internet and social network spaces.  In Morse the Court upheld the suspension of a student who refused to remove the aforementioned Bong/Jesus banner because “special characteristics of the school environment, and the government interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse.”  The Court found a “school environment” even though technically the event took place outside the “school house gate.”

There being little in the way of Supreme Court guidance, the Third Circuit panels also turned to a Pennsylvania Supreme Court case and two Second Circuit cases, all involving internet postings.  In J.S. v. Bethlehem Area School District, 807 A.2d 847 (2002) the Pennsylvania Supreme Court upheld the punishment of a student who created a web page at home that was aimed as his algebra teacher and explained why she should be killed, even soliciting money to pay a hitman.  Students and parents were frightened by the site and the teacher was badly frightened and took medical leave.  In Wisniewski v. Board of Education of Weedsport Central School District, 494 F.3d 34 (2d Cir. 2008) the suspended student created an image, again from home, of a pistol firing a bullet at a teacher’s head, complete with splattered blood.  The court applied Tinker in affirming the suspension.  In Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008) the Tinker disruption seemed to be smaller but the punishment was lighter: the student was prohibited from running for the office of senior class secretary.  Her internet posting had urged others to contact the administrative office to complain about the cancellation of an event.  Apparently her posting caused to students to get “all riled up,” a sit-in was threatened (but apparently never took place) and the phone lines were clogged by callers..

Let’s look at the facts in the two cases that were just decided.  In Layshock the student used his grandmother’s computer to create a very unflattering fake MySpace profile of his principal.  Word of the profile “spread like wildfire” through the student body and the student also showed it to other students on a classroom computer.  Apparently because the school’s IT person was on vacation, the school could not shut down the profile and school computer use was disrupted and computer classes were cancelled.  In Snyder two students also created a fake MySpace profile of the school principal, but the profile, unlike Layshock’s which seemed to stress the principal’s obesity, suggested that the principal was a pedophile with interests in his own students.  The obscenity-laden profile was also created outside the school.  The profile was initially accessible to anyone but was then set to be seen by only some twenty-two students with “friend” status; the school’s computers were set to block MySpace so anyone viewing the profile would have had to do so at home.

With these fairly similar sets of facts the two Second Circuit panels reached opposite conclusions.  In Layshock the court found that the profile did not create “foreseeable and substantial disruption to the school,” and upheld the First Amendment claim.  But the Snyder court, stating that it was simply applying the Tinker rule, found the requisite substantial disruption, noting in the process that a well-founded belief in future disruption could also trigger the quick removal of a violative web page as well as punishment for the poster.  In addition, the court made clear that off-campus speech would fall under the Tinker test in any situation in which the disruption would occur on campus without any need to “satisfy any geographical technicality.”

So what were the disruptions?  The Snyder court looked at them at length, but in sum there were (1) two teachers had to quiet down their classes because they were talking about the MySpace profile; (2) an administrator had to attend meetings between the principal and the two offending students and as a result a substitute had to be found for her proctoring assignment; and (3) two students decorated the lockers of the guilty students on the day they returned from suspension, thereby creating a “buzz and a stir in the eighth grade hallway.”  More importantly, it appeared that some students may have taken the pedophile accusations seriously, causing concerns.

The dissent sums up my concerns about the Snyder holding, “I believe that this holding vests school officials with dangerously overbroad censorship discretion.”

So what can we learn from these two apparently inconsistent cases?  It seems that a Facebook or MySpace page created outside the school environment, i.e. on a home computer can be treated as in school speech but only if it passes the four decades old Tinker test by creating a foreseeable risk of campus disruption.  The cases finding that the internet-based speech was entitled to First Amendment protection seem to fall into the category of harmless parody (the Layshock principal was fat; the Garber teacher was “the worst teacher I ever met”) as opposed to postings which suggested danger or violence (J.S’s call for a hitman and death threat; Wisniewski’s depiction of teacher being shot).  The Layshock principal was merely mocked as fat, the Snyder principal was depicted as a pedophile and a danger to other students, creating fear in the minds of some students and parents.  Until the Supreme Court says otherwise, that is all the guidance we have.

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