We have been following the trend against free speech rights of students and the disciplining of students for speech outside of school. This includes the opinion in Doninger v. Niehoff with then Judge Sotomayor. Now, the Third Circuit has handed down a major victory for free speech in rejecting a parody on MySpace as the basis to discipline two teenagers in Pennsylvania. The case is J.S. v. Blue Ridge Mountain School District, 2011 U.S. App. LEXIS 11947 (June 13, 2011).

The fake website was created to mock middle school principal, James McGonigle.

Here are the facts given by the court:

J.S. was an Honor Roll eighth grade student who had never been disciplined in school until December 2006 and February 2007, when she was twice disciplined for dress code violations by McGonigle. On Sunday, March 18, 2007, J.S. and her friend K.L., another eighth grade student at Blue Mountain Middle School, created a fake profile of McGonigle, which they posted on MySpace, a social networking website. The profile was created at J.S.’s home, on a computer belonging to J.S.’s parents.

The profile did not identify McGonigle by name, school, or location, though it did contain his official photograph from the School District’s website. The profile was presented as a self-portrayal of a bisexual Alabama middle school principal named “M-Hoe.” The profile contained crude content and vulgar language, ranging from nonsense and juvenile humor to profanity and shameful personal attacks aimed at the principal and his family. For instance, the profile lists M-Hoe’s general interests as: “detention, being a tight ass, riding the fraintrain, spending time with my child (who looks like a gorilla), baseball, my golden pen, fucking in my office, hitting on students and their parents.” Appendix (“App.”) 38. In addition, the profile stated in the “About me” section:

HELLO CHILDREN[.] yes. it’s your oh so wonderful, hairy, expressionless, sex addict, fagass, put on this world with a small dick PRINCIPAL[.] I have come to myspace so i can pervert the minds of other principal’s [sic] to be just like me. I know, I know, you’re all thrilled[.] Another reason I came to myspace is because – I am keeping an eye on you students (who[m] I care for so much)[.] For those who want to be my friend, and aren’t in my school[,] I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife who looks like a man (who satisfies my needs ) MY FRAINTRAIN.

Id. Though disturbing, the record indicates that the profile was so outrageous that no one took its content seriously. J.S. testified that she intended the profile to be a joke between herself and her friends. At her deposition, she testified that she created the profile because she thought it was “comical” insofar as it was so “outrageous.” App. 190.

What is most striking about the case is that McGonigle was not satisfied with the most obvious response: call the parents and have a meeting at school. Most parents (including this parent) would have punished their children severely for such a disrespectful act. Instead, McGonigle went to the police to seek criminal charges against these children. That’s right, criminal charges. When police told him that such charges probably would not hold up, he proceeded to take disciplinary action. The very interest of McGonigle in criminally charging these teens shows a distinct lack of judgment and perspective.

What is equally noteworthy is the rather forced arguments of “disruption” made by the school in court:

The School District asserted that the profile disrupted school in the following ways. There were general “rumblings” in the school regarding the profile. More specifically, on Tuesday, March 20, McGonigle was approached by two teachers who informed him that students were discussing the profile in class. App. 322. Randy Nunemacher, a Middle School math teacher, experienced a disruption in his class when six or seven students were talking and discussing the profile; Nunemacher had to tell the students to stop talking three times, and raised his voice on the third occasion. App. 368-73. The exchange lasted about five or six minutes. App. 371. Nunemacher also testified that he heard two students talking about the profile in his class on another day, but they stopped when he told them to get back to work. App. 373-74. Nunemacher admitted that the talking in class was not a unique incident and that he had to tell his students to stop talking about various topics about once a week. Another teacher, Angela Werner, testified that she was approached by a group of eighth grade girls at the end of her Skills for Adolescents course to report the profile. App. 415-16. Werner said this did not disrupt her class because the girls spoke with her during the portion of the class when students were permitted to work independently. App. 417-18.

The School District also alleged disruption to Counselor Frain’s job activities. Frain canceled a small number of student counseling appointments to supervise student testing on the morning that McGonigle met with J.S., K.L., and their parents. Counselor Guers was originally scheduled to supervise the student testing, but was asked by McGonigle to sit in on the meetings, so Frain filled in for Guers. This substitution lasted about twenty-five to thirty minutes. There is no evidence that Frain was unable to reschedule the canceled student appointments, and the students who were to meet with her remained in their regular classes. App. 352-53.

The Court rejects the use of school policies as vague and the arguments of the school as misrepresentations or misinterpretations. However, judges write in dissent in favor of disciplining students for speech outside of school. Judge D. Michael Fisher warns that the opinion “allows a student to target a school official and his family with malicious and unfounded accusations about their character in vulgar, obscene, and personal language. I fear that our Court leaves schools defenseless to protect teachers and school officials against such attacks and powerless to discipline students for the consequences of their actions.” There appears little concern over officials using their authority to limit free speech under vague school policies.

Another case of discipline resulted in a reversal by the district court. This involved Hickory High School senior Justin Layshock who created a parody that said his principal smoked marijuana and kept beer behind his desk.

We have seen a steady erosion of the free speech rights of students in the last decade. The Supreme Court accelerated that trend in its Morse decision. Former JDHS Principal Deb Morse suspended Frederick in 2002 during the Olympic Torch Relay for holding up a 14-foot banner across from the high school that read “Bong Hits 4 Jesus.” The case ultimately led to the Supreme Court which ruled in Morse v. Frederick ruling in 2007 for the Board — a decision that I strongly disagreed with and one that has encouraged over-reaching by school officials into protected areas. Frederick, however continued to litigate, claiming among other things that his first amendment speech rights were violated under the Alaskan Constitution.

For a copy of the Morse decision, click here.

Civil libertarians hoped that Obama would appoint someone with a strong commitment to free speech and student rights. However, he appointed Sonia Sotomayor who was heavily criticized on the Second Circuit for her role in the Donniger case where she ruled against high school student Avery Doninger who contested her punishment for posting an objectionable message on an Internet site about Lewis Mills High School. When she objected to the cancellation of a school event in vulgar terms, school officials barred her from running for Senior Class secretary. In Doninger v. Niehoff, the Second Circuit upheld the right of school officials to punish students for out-of–school speech in a major blow to both the first amendment and student rights.

Once again, I find this conduct highly disturbing and worthy of punishment by the parents and a parent-teacher meeting. Such sites can also be grounds for civil action if defamatory. However, this trend toward regulation of speech outside of school is a direct threat to free speech. It is also part of a broader claim of authority to discipline teachers for their own private conduct outside of school.

Here is the opinion: 084138p1

Source: WNEN as first read on Reddit