Lewd, but not too lewd: discipline for off-campus speech probably depends on degree of offensivness

The blog has been off for a while, but now guest blogger Tim Gilsbach, starts off with the first a series of new entries.  This one brings to mind Justice Stewart's remark that he knows pornography when he sees it by showing that offensive speech is, apparently, no less subjective.  For educational agencies, this lack of bright line clarity, means an honest, well-documented, entire-circumstances approach is required for any discipline, and that school lawyers will continue to be busy with speech disputes.  And now, onto Tim's entry. . . .

 In two recent cases, the different federal district courts in Pennsylvania have considered on-line speech by students regarding facility members that occurred off campus, but nonetheless impacted the school setting. However, the courts reached differing conclusions on whether the speech was protected under the First Amendment, leaving school districts to guess when they can or cannot discipline the student for the conduct. A review of these two cases is illustrative of the problem.

First, in the case of Layshock v. Hermitage School District, 496 F. Supp. 2d. 587 (W.D. Pa. 2008), in the Western District of Pennsylvania, a student at home created an on-line parody profile of his high school’s principal on Myspace.com. On the profile, the student attached the principal’s picture, which he copied and pasted from the district’s webpage. The profile also included a question and answer portion of answers the site claimed came from the principal, including answers that indicated that the principal kept a keg behind his desk, smoked a “big blunt” and referenced a “big hard on” as his last date. The profile also described the principal’s sister as a “big whore” and “big steroid freak.” The profile also indicated that the principal was too drunk to remember his own birthday. The profile was shared with other students at the high school and eventually was seen by most, if not all, of the students at the high school. At the same time, there were three other Myspace profiles of the principal that were also unflattering and contained even more vulgar and offensive statements and, apparently, were created by other students. The principal spent a significant amount of time the week of the postings addressing this issues and the resulting disruptions they caused within the school, but could not identify which the four posting he spent time addressing. The student was disciplined for violating various provisions of the student handbook in form of a ten day suspension. 


The Layshock court noted that district could limit speech where it interferes with the learning environment, but noted that it was much more limited in its ability to address speech that occurs outside the school setting or as the court put it outside the school yard. The court went on to explain that when dealing with conduct outside the school setting, the same standard applies as would in the case of any other public official attempts to regulate speech, which imposes strict limits on the ability to regulate. Accordingly, the court held that the speech was protected and, thus, the District violated the student’s rights under the First Amendment by disciplining him.


In the case of J.S. v. Blue Mountain School District, a case decided by the Middle District Court of Pennsylvania, another judge reached the opposite conclusion. 


In J.S., the student created a MySpace profile that indicated the principal was a pedophile and sex addict. Just as in Layshock, the student created this profile outside of school and also used the principal’s picture from the district’s webpage. The student in J.S. was also disciplined and claimed First Amendment Protections. The court started with the proposition that, simply put, lewd, vulgar, indecent and plainly offensive speech are not protected in the school setting. The court further indicated that the difference between off-campus and on-campus speech has become more blurred with advent of the internet and other technology. In addition, the court looked at the Layshock case and explained that the profile in that case was far less vulgar or offensive that the one in the case before it. Thus, the court found the speech was not protected and that the student could be disciplined without offending First Amendment right. 


It is expected that the Third Circuit Court of Appeals will be called upon to sort out these two cases, or similar cases, at some point. However, for now it appears that students are free to be lewd without discipline in this context, so long as they don’t get too lewd, and leaving school personnel to guess when speech is lewd but so lewd as to not be protected speech. 


The BONG HiTS 4 JESUS decision, issued June 25, 2007, holds that a public school principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. Morse v. Frederick, at page 8. Schools “may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.” Morse, at page 2. The decision is both clear and limited in holding nonsensical speech about illegal drugs can be prohibited in public schools.

The Supreme Court characterized the speech at issue, “Bong hits 4 Jesus” written on a 14 foot banner, as “cryptic,” perhaps offensive to some, funny to others, and meaningless to many. According to the student, it was just “nonsense meant to attract television cameras.” Morse at 6. And it was not political. Morse at 8. It nonetheless had an unmistakable message of some sort about drug use. “Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs.” Morse at 7. Accordingly, the banner, unfurled during a school activity, and its speech were not protected by the First Amendment. 

Analysis follows.

In the line of student speech case precedent, this case is more on the side of Fraser, which involved a student’s “elaborate, graphic, and explicit sexual metaphor,” than Tinker, which addressed a silent anti-Vietnam war protest involving black arm bands. Gibberish, even elaborate gibberish, involving either lewd and indecent speech or illegal drug use, is not protected. The Court appears to be creating categories of prohibited student speech, a point criticized in the dissent, that should be easy for school officials to apply in theory.

But in practice, the decision does not give guidance in the event student political speech, or perhaps just non-gibberish speech, includes illegal drug references, for example, “The President smoked dope, so can I” to support decriminalization. Justice Breyer wrote at 3, that he “cannot find much guidance in today’s decision.” Indeed, what if, as he rhetorically asks, the next banner instead reads “Bong hits 4 decriminalization?” Will the Court apply Tinker’s substantial disruption inquiry in that instance, or will the Court take a Fraser-Morse categorical approach? 

The Court hinted at this tension while discussing the case precedent, noting student speech can be subject to either Tinker’s or Fraser’s analysis, but declined to say which test applies and when. Morse at 8-11. As Justice Thomas, in his concurring opinion at 9-10, sees it, “our jurisprudence now says that students have a right to speak in schools except when they don’t. . .” and so Tinker should just be overruled. On this First Amendment issue, Justices Thomas and Alito stand far apart. Justice Alito’s concurring opinion draws a line up front by stating his view that political and social speech would likely be protected even if combined with drug references. Given the case precedents and divergent views on the current Court, the lack of wider guidance is not surprising.

Such guidance will have to wait for another, and surely inevitable, day. And given how the Justices align (or not) on the issue, that will likely be quite an interesting read.