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SCOTUS for law students: Student speech and the Internet (sponsored by Bloomberg Law)

Few things are more challenging for the Supreme Court than applying old rules to new technology.  The question of whether and under what circumstances public schools may punish Internet communications by students outside of school may soon present that challenge to the Justices.

At their private Conference on January 13, the Justices will consider whether to review two cases pitting student free speech claims against the authority of public school administrators to maintain order and discipline for a safe learning environment; the Court could announce whether it will hear the cases as soon as that afternoon.

For law students, the issues are important in classes on education law, First Amendment, perhaps cyberspace law and juvenile law, and courses studying the inner workings of the Supreme Court – especially those that study the role that conflicting rulings among the federal appeals courts play for the Justices.

If the Justices agree to take up the issue, the outcome will be important not only for school administrators, parents, and students, but also for those practicing education law and, perhaps more broadly, for free speech analysis under the First Amendment.

A decision by the Justices not to grant review, however, may demonstrate that the Justices have passed in light of the difficulty of determining when different federal appeals courts are actually in conflict over an issue. More on this point later.

One factor that may influence the Court’s choice of whether to hear the appeals is that the Justices do not seem fond of cases involving new technology. Just last June, in Brown v. Entertainment Merchants Association, Justice Scalia noted the “challenges of applying the Constitution to ever-advancing technology,” as the Court struck down a California law restricting sale of violent video games to minors. And from time to time, some Justices have appeared to wrestle during oral argument with understanding the mechanics of different technologies.

The two petitions in fact involve three cases. In one petition, Blue Mountain School District v. J.S., school officials are seeking review of two different decisions issued by the en banc U.S. Court of Appeals for the Third Circuit. In the first decision, the Third Circuit ruled, by a vote of eight to six, that a middle school in the district improperly suspended an eighth grader for ten days for creating a fake MySpace profile of the principal. The profile – which included profanity and a vulgar message purportedly from the principal – was created on her home computer on the weekend and used a fictional name for the principal but displayed a real photograph of him.

The same petition is also an appeal in the case of Hermitage School District v. Layshock, in which a senior at a Pennsylvania high school was suspended for similar conduct. Using his grandmother’s computer, outside of school, the student created a fictitious profile of the high school principal on MySpace, posting a real photograph and describing the principal in insulting ways and as engaged in a substantial amount of drinking and drugs. The Third Circuit ruled that the school violated the student’s free speech rights.

In the other petition, Kowalski v. Berkeley County Schools, a West Virginia high school student asks the Court to review a decision by the Fourth Circuit upholding her suspension for creating a discussion group on MySpace where students posted comments suggesting that a classmate had herpes. The discussion group was created from the student’s home computer after school hours.

The legal issue in all three cases turns on the Supreme Court’s 1969 ruling in Tinker v. Des Moines Independent Community School District.  In that case, the Court ruled that students had a right to free speech in school, such that school officials could not interfere with student expression unless “it is necessary to avoid material and substantial interference with schoolwork or discipline.” In Tinker, the Justices found that there was no disruption from a small group of students wearing black armbands to school to protest the Vietnam War.

Fast forward forty years to a new world in which students communicate instantly with methods that did not exist when Tinker was decided — tweets, instant messages, YouTube videos, and social media Internet pages. Add to this mix growing societal concern over bullying; while the problem has existed as long as there have been schools, the impact is more immediate and more potent when the message may be disseminated quickly and widely through the Internet or other electronic means.

What sets the new cases apart from Tinker is that the communication took place outside of school. Should a school be able to discipline a student for communication that took place in the student’s home on the student’s own time? And if so, what legal standard should apply?  So far, lower federal courts have wrestled with how to apply the Tinker standard to out-of-school speech. The result is that some student discipline has been upheld, while other punishments have been overturned.

But is this a conflict among the federal appeals courts?  Or have the federal courts simply differed on the case-by-case factual question of when out-of-school speech threatens to disrupt, or actually disrupts, school functions? The answer to these questions is critical to whether the Supreme Court may decide to hear the cases.  Petitions that present a genuine conflict on the meaning of the law among federal appeals courts are a high priority for review by the Supreme Court:  after all, it is the only court that can resolve these conflicts, thereby eliminating the problems that can arise when laws are interpreted inconsistently in different parts of the country.   For this reason, however, many petitions assert the existence of a circuit conflict, even when the disagreement among the lower courts is not so obvious or direct. The Justices – and their law clerks who screen the petitions – must therefore ascertain whether a conflict is sufficiently direct and significant to warrant the Court’s scheduling of oral argument to resolve it.

In the Kowalski case, the Fourth Circuit used the Tinker standard but found that the MySpace discussion group did disrupt school functions. By contrast, although the Third Circuit also applied the Tinker standard in both the Layshock and J.S. cases, it found that there was no school disruption attributable to the student speech.

These outcomes seem to turn on each court’s perception of the facts of the case. But in their petition seeking review of the Third Circuit rulings, the school districts assert that there is a deep division in lower federal courts over whether Tinker is the correct standard for out-of-school speech, and – if so – how it should apply.

A second Supreme Court ruling is also implicated in some of the off-campus speech cases, and the federal courts have wrestled with the application of that decision in much the same way. In Bethel School District v. Fraser, the Justices ruled that school officials could punish speech in school that was vulgar or lewd and inappropriate for the age of students who were listening.  Bethel poses the same problem as Tinker: how does it apply to out-of-school speech that is vulgar? Lower courts have come to different conclusions on that question as well.

Even if the differences among the student speech cases are somewhat factual in nature, federal courts and school officials are struggling with these issues and might welcome clarification from the Supreme Court.  Circuit conflict or not, sometimes the Supreme Court is the only place to go for clarity on an issue that has enormous practical impact, such as in the day-to-day operations of public schools.

Recommended Citation: Stephen Wermiel, SCOTUS for law students: Student speech and the Internet (sponsored by Bloomberg Law), SCOTUSblog (Jan. 7, 2012, 4:01 PM),