Justices leave questions on online student speech unanswered

In refusing to take two cases today, the U.S. Supreme Court leaves many unanswered questions in the digital-age issue involving students who were punished for their off-campus, online postings.

The justices avoided the opportunity to clarify when school officials may punish students for online expression they create away from school, refusing to review cases out of Pennsylvania and West Virginia: Blue Mountain School District v. J.S. and Kowalski v. Berkeley Count Schools.

The Blue Mountain petition actually dealt with two separate cases out of Pennsylvania — one involving middle school students (including student J.S.) and another concerning a former high school student named Justin Layshock, who faced punishment for online comments about his principal in the Hermitage School District. In both Pennsylvania cases, the full 3rd U.S. Circuit Court of Appeals had ruled in the students’ favor — by a sharply divided 8-6 vote in Blue Mountain and unanimously in Layshock. With the high court’s refusal to hear an appeal, those rulings stand for now as good news for student expression online in the 3rd Circuit, which includes Pennsylvania, New Jersey and Delaware.

The 4th Circuit, however, ruled against former student Kara Kowalski, who created a MySpace discussion page that included highly offensive statements that another student was a slut who had herpes. So that ruling stands in West Virginia and the states that circuit, Virginia, Maryland, North Carolina and South Carolina.

Last year, the high court also refused to hear a similar case out of the 2nd Circuit. A common reason that the Court grants review is to resolve circuit splits. For some reason the justices decided to leave the split as is.

That means important questions remain:

  • Do school officials even have jurisdiction over purely off-campus expression?
  • What is enough of a connection between an off-campus, online posting and school activities to trigger school jurisdiction?
  • When does online, off-campus student speech create a reasonable forecast of substantial disruption of school activities?
  • Can school officials discipline off-campus, online student speech because it invades the rights of other students?
  • Can school officials discipline students for off-campus, online speech simply because it contains vulgar and lewd language?

Until the Supreme Court decides to step into these matters, we simply don’t know.

Meanwhile, Frank LoMonte, director of the Student Press Law Center, says it may have been a good thing that the Court didn’t review the cases.

“It has been very, very difficult for courts to set aside their revulsion over the specific speech in front of them and see beyond that to the larger constitutional issue,” he said.

“Just as the Court made an ill-considered First Amendment ruling in the Morse [Morse v. Frederick (2007)] case out of sympathy for the particular school administrator, I think the temptation would have been irresistible to do violence to the First Amendment so that the students in these cases didn’t escape unpunished. The speech by these students was in no way representative of the creative and substantive ways in which student bloggers, journalists and artists are using the Web every day, but those students’ rights could have suffered real and permanent damage had the Court taken up these cases.”

Nancy Willard, director of the Center for Safe and Responsible Internet Use, said she would have welcomed clarification from the high court.

“Unfortunately, due to a lack of clarity on these issues, school administrators feel as if they are in a ‘damned if you do, damned if you don’t’ situation when dealing with off-campus hurtful student speech,” Willard said. “Guidance … would have been helpful.

“However, I do not see a conflict between these 3rd and 4th Circuit cases. These decisions are all based on the application of the substantial disruption standard to the facts. The critical aspect to look at is who was targeted by the off-campus speech.”

David L. Hudson Jr. is the ombudsman for the Newseum’s Institute First Amendment Center.

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