ABA Journal - July 2009

THE NATIONAL PULSE
No More Pencils, No More Facebooks
Schools and students battle over out-of-class Internet files

BY WENDY N. DAVIS

WHEN HE WAS A HIGH school senior, Justin Layshock created a fake profile of Eric Trosch, his school’s principal, on MySpace.

The parody, published in 2005, called Trosch a “steroid freak” who enjoys “chick flicks and porno movies.” It said Trosch liked Playboy but preferred Penthouse and was “too drunk to remember” his birthday, according to a version posted on the Smoking Gun website.

The school was not amused. Authorities of the Hermitage School District, based in western Pennsylvania, said that Layshock, then 17, violated the disciplinary code by engaging in “harassment of a school administrator,” using “obscene, vulgar and profane language” and posting the school-owned picture of Trosch without authorization. Layshock was suspended for 10 days.

He sued the school for allegedly violating his First

Amendment rights. In 2007 a federal district court in

Pittsburgh ruled in Layshock’s favor. Judge Terrence

McVerry said the school had no authority to discipline

Layshock for off-campus speech.

“The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web. Public schools are vital institutions, but their reach is not unlimited,” McVerry wrote in Layshock v. Hermitage School District.

The school appealed and as of this spring the case was pending before the 3rd U.S. Circuit Court of Appeals at Philadelphia, which heard oral arguments in December.

Blogger Avery Doninger with her mother, Lauren, and attorney Jon Schoenhorn.

WORLDWIDE FORUM

LAWSUITS LIKE LAYSHOCK’S ARE PLAYING OUT ALL OVER the country, as students who once might have published underground newspapers or simply sent handwritten notes to friends are now broadcasting their opinions on sites like Facebook and MySpace.

The emergence of these sites has left courts struggling to figure out the limits of students’ First Amendment rights in the digital era, where the Internet allows anyone to become a publisher and instantaneously reach

a vast, potentially global audience.

In addition to Layshock’s case, the 3rd Circuit also is considering a student’s appeal in a lawsuit where a federal court based in Scranton sided with school administrators. In that case, J.S. v. Blue Mountain School District, a 14-year-old student from Orwigsburg, Pa., was suspended for parodying her principal on MySpace.

Schools argue that they should have the authority to discipline online speech, regardless of whether students were at home or at school when they made the comments. That’s because even when students post to MySpace from a home computer, those statements are accessible on school grounds by anyone with a computer or smartphone.

“An underground newspaper is likely to have a limited impact because it’s just distributed in the community. But electronic communications go out to the world,” says Sean A. Fields, associate counsel for the Pennsylvania School Boards Association, which filed an amicus brief in Layshock.