In early 2010, the United States Court of Appeals for the Third Circuit, based in Pennsylvania, considered in two different cases whether students can be punished in school for statements they make online outside of school.
In J.S. v. Blue Mountain School District, an eighth grader created a false MySpace page that made fun of her principal. She used his actual photo and included vulgar confessions of made-up sexual encounters between the principal and students. The Court held that that school officials could not discipline students for off-campus speech on the Internet.
In a similar case, Layshock v. Hermitage School District, a high school senior created a false MySpace page for his principal that included descriptions of alcohol and illegal drugs possession in his school office. Though the page was created off campus and outside of school time, a three judge panel of the Third Circuit found that this page created a disruption at school and therefore the administration could discipline the student. The entire Third Circuit sitting together reversed the three-judge panel, and found that the MySpace profile made outside the school is protected by the First Amendment, and the school could not punish him.
Please write blog post of at least 500 words that answers this question:
Does the First Amendment of the United States Constitution permit schools to punish students for statements they make outside of school on the internet?
In your answer, please focus on three or more of following topics, and refer to the resources below:
- Describe the meaning of the freedom of speech during the time of its protection with adoption of the Bill of Rights. Use historical evidence from the time period.
- Describe how Supreme Court cases, such as Tinker, Bethel and Morse, interpreted the Founding era meaning of free speech as applied to school environments.
- Are students completely free to publish anything they want online if they are off school campus or is there room for school officials to discipline off campus behavior considered out of bounds on campus?
- To what degree could off campus vulgar Facebook, Twitter, MySpace or other social networking speech disrupt learning or compromise safety on a school campus?
- What could be some possible scenarios if school officials could discipline off campus behavior unrelated to school functions?
- Should school officials be able to regulate off campus Internet speech if the speech harasses other students?
- Does the size of the audience matter when considering the discipline of online student speech? In other words, if a large majority of students at school will see the speech away from school, should that be factored in to judging it as punishable behavior?
Morse v. Frederick – An 18-year-old high school student displayed a banner that said “BONG HiTS 4 JESUS” across the street from his school during a parade. The Principal suspended him. The Supreme Court held that the school could punish the student for displaying the banner–which promoted illegal drug use–at a school-supervised event.
Bethel School District v. Fraser - An 18-year-old high school senior gave a speech at school nominating a classmate for student body vice president. His speech was filled with sexual references, but no obscenity or curses. The Supreme Court found that the suspension was permissible, and the school’s policy did not violate the First Amendment, because the speech contained lewd and vulgar and offense terms.
Tinker v. Des Moines Independent Community School District- In 1965, two students wore black armbands to protest the Vietnam War, even though the school had adopted a policy that banned the wearing of black arm bands. The two students were suspended. The Supreme Court held that the school could not punish the students, without any evidence that the arm bands interfered with school discipline. Tinker remains the Supreme Court’s primary test to deal with student-speech cases.
Madison’s Resolution for Amendments to the Constitution (June 8, 1789)
The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
Debates in the House of Representatives
The Congressional Register (August 15, 1789)
The next clause of the 4th proposition was taken into consideration, and was as follows: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances shall not be infringed.”
Mr. SEDGWICK: Submitted to those gentlemen who had contemplated the subject, what effect such an amendment as this would have; he feared it would tend to make them appear trifling in the eyes of their constituents; what, said he, shall we secure the freedom of speech, and think it necessary at the same time to allow the right assembling? If people freely converse together, they must assemble for that purpose; it is a self-evident unalienable right which the people possess; it is certainly a thing that never would be called in question; it is derogatory to the dignity of the house to descend to such minutiae—he therefore moved to strike out “assemble and.”
Mr. BENSON: The committee who framed this report, proceeded on the principle that these rights belonged to the people; they conceived them to be inherent, and all that they meant to provide against, was their being infringed by the government.
Mr. SEDGWICK: Replied, that if the committee were governed by that general principle, they might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased, that he might get up when he pleased, and go to bed when he thought proper; but he would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, under a government where none of them were intended to be infringed.
Mr. TUCKER: Hoped the words would not be struck out, for he considered them of importance; beside, they were recommended by the states of Virginia and North-Carolina, though he noticed that the most material part proposed by those states was omitted, which was, a declaration that the people should have a right to instruct their representatives; he would move to have those words inserted as soon as the motion for striking out was decided.
The committee then proceeded to the 5th proposition. Art. I. sect. 10. between the 1st and 2d paragraph insert “no state shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases.”
Mr. TUCKER. This is offered, I presume, as an amendment to the constitution of the United States, but it goes only to the alteration of the constitutions of particular states; it will be much better, I apprehend, to leave the state governments to themselves, and not to interfere with them more than we already do, and that is thought by many to be rather too much; I therefore move, sir, to strike out these words.
Mr. MADISON Conceived this to be the most valuable amendment on the whole list; if there was any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments; he thought that if they provided against the one, it was as necessary to provide against the other, and was satisfied that it would be equally grateful to the people. Mr. LIVERMORE had no great objection to the sentiment, but he thought it not well expressed. He wished to make it an affirmative proposition; “the equal rights of conscience, the freedom of speech, or of the press, and the right of trial by jury in criminal cases shall not be infringed by any state.” This transposition being agreed to, and mr. Tucker’s motion being rejected, the clause was adopted.