Off-campus online speech deserves protection

If preserving the First Amendment is something important to you, as it should be, then there is a case in the 3rd U.S. Circuit Court of Appeals worth watching.

The question concerns whether in this age of Facebook, Twitter and other social networking Web sites, should schools be permitted to discipline students for online speech when it occurs away from the school.

In 2005, while a high school senior in the Hermitage School District in western Pennsylvania, 17-year-old Justin Layshock created a fake Facebook profile parodying the high school principal. He was suspended for 10 days and, with help from the American Civil Liberties Union, sued the school district.

In 2007, a federal judge sided with Layshock and ruled that school districts cannot discipline students for off-campus speech.

The school district appealed and oral arguments were held in December (read the briefs in the case at http://www.aclupa.org/legal/legaldocket/studentsuspendedforinterne.htm).

School officials argue that they have the right to regulate online off-campus speech because the speech can be accessed at the school.

U.S. District Judge Terrence McVerry rejected that argument: "The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web."

While that would seem to be the correct decision in a free society, not all judges agree.

The 2nd U.S. Circuit Court of Appeals in New York, including Supreme Court nominee Judge Sonia Sotomayor, ruled last year in Doninger v. Niehoff that schools had the authority to regulate off-campus online speech because that speech can disrupt the functioning of the school. While Sotomayor did not write the opinion, she signed onto its conclusions.

Separation of school and state would make such legal arguments moot. However, that is not likely to happen anytime soon.

Until then, though, the courts need to protect the free speech of students. After all, as the Supreme Court ruled 40 years ago, students do not give up their free speech at the schoolhouse gates.

If the speech is truly troublesome, there are alternatives.

"When students misbehave off campus, there are ample remedies in the real-world legal system," Frank LoMonte told ABA Journal. He is the executive director of the Student Press Law Center in Arlington, Va. "If the speech is threatening, there are police for that. If it's libelous, there are courts for that. And it's short of both of those things, there are phone calls to parents."

While children might not have complete freedom before reaching the age of majority, there is no compelling reason for the state to curb their freedom of speech.

Let's hope the 3rd U.S. Circuit Court of Appeals proves wiser than the 2nd Circuit and Sotomayor. Additionally, either the Supreme Court or the U.S. Congress should move to protect the online speech of students from overzealous government school administrators.