Citizens, including students, are guaranteed the constitutional right of freedom of speech . […] the question becomes, how should administrators balance students’ First Amendment rights with the school’s responsibility to regulate student speech that is disparaging to staff members or coaches or disruptive to the educational environment or team dynamics? The phenomenon of social media in its various forms; Facebook, MySpace, Twitter, among others has presented school administrators and coaches with a new twist on an old issue: criticism by students and student athletes in the scholastic setting. Instead of sending hate mail to the coach, or posting a caricature of the principal in the cafeteria, students now can quickly disseminate, to a vast authence, public criticism of school officials, complete with pictures and video. Citizens, including students, are guaranteed the constitutional right of freedom of speech.
Therefore, the question becomes, how should administrators balance students’ First Amendment rights with the school’s responsibility to regulate student speech that is disparaging to staff members or coaches or disruptive to the educational environment or team dynamics? In the summer of 2011, the U.S. Court of Appeals for the Third Circuit wrestled with the competing interests of “safeguarding students’ First Amendment rights and protecting the authority of school administrators to maintain an appropriate learning environment” in the case of J. S. v. Blue Mountain School District,T\\e case involved a student who was suspended for creating a fictitious MySpace profile regarding her middle school principal. The student’s parents sued the school system on her behalf for violating her First Amendment right to free speech . Facts of the Case
J.S. was an eighth grade student with no history of disciplinary problems until she was disciplined for dress code violations by her principal, James McGonigle. J.S. responded by creating a fake MySpace profile of the principal on the social networking web site, from her home on her parents’ computer. The profile used McGonigle’s official photograph from the school web site, but did not identify him by name, or location. The profile was described by the court as disturbing, vulgar, and offensive, portraying McGonigle as a bisexual pedophile, and containing profane language directed at the principal and his family. In her deposition, J.S. testified that she intended the profile to be a joke, and she thought it was comical because it was so outrageous.
Initially the profile was public and could be viewed by anyone. The following day J.S. made the profile private, after several students made comments to her at school, so it could only be viewed by 22 of her friends online. McGonigle learned of the profile from another student, and after a subsequent investigation, J.S. was suspended for 10 days for violations of the school disciplinary code, specifically for making false accusations about a staff member and using the school web site photo of McGonigle without permission. After her suspension, J.S. sued the school district for violating her First Amendment rights by punishing her for off campus online speech.
Courts have long recognized the far reaching authority of school officials to govern student behavior and have been reluctant to interfere in resolving conflicts that arise in the regular operation of school systems. The U.S. Supreme Court has attempted to balance the comprehensive authority of school officials and the protection of students’ free speech rights in the special context of the educational environment. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” ( Tinker v. Des Moines Independent Community Sch. Disi, 1969). The U.S. Supreme Court in Tinker established that school officials will only be justified in prohibiting student expression if they can demonstrate that the student’s conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school. In a series of later cases, the Supreme Court held that the general rule in Tinker is subject to several narrow exceptions in which the school may restrict student speech without a significant fear of disruption in the academic setting. School officials may regulate profane and “plainly offensive” speech in school (Bethel Sch. Dist. v. Fraser, 1986).
Student speech may also be restricted during school sponsored activities such as a school newspaper Hazelwood Sch. Dist. v. Kuhlmeier, 1988). The Supreme Court most recently restricted student speech advocating illegal drug use at a school sponsored and supervised event [Morse v. Frederick, 2007). These narrow exceptions do not directly address the issue of off campus Internet use that specifically targets school personnel; therefore, courts have been divided as to how to apply these guiding cases. The issue before the Third Circuit was whether the school district violated J.S.’s right of freedom of speech when it suspended her for her speech on the Internet. Using Tinker and its later exceptions, the appellate court wrestled with the question of how off campus generated social media targeting school officials should be characterized. Previously, the District Court for the Middle District of Pennsylvania granted summary judgment in favor of the school district, holding that J.S.’s lampooning of her principal did not cause a “substantial.