As the principal...

- How would you discipline J.S. and K.L.’s behaviour?

The First Amendment and Online Speech

The First Amendment: - consists of the rights to freedom of speech, press, assembly and to petition the government for a redress of grievances, and the implied rights of association and belief

Right to Free Speech and Online Speech- The regulation of online speech treads on delicate constitutional territory.

•18 Mar 2007•J.S. and K.L. create a fictitious profile on McGonigle••

J.S. v. Blue Mountain School District

18 Mar. 2007• J.S. and K.L.

create a fictitious profile on Principal McGonigle on MySpace

19 Mar. 2007• MySpace

profile setting is changed from public to private

20 Mar. 2007• A student

notifies McGonigle

22 Mar. 2007• J.S. and K.L.

were both given a ten-day out-of-school suspension

28 Mar. 2007• J.S. and her

parents filed 42 U.S.C. 1983 civil rights action against the School District, Superintendent Romberger, and Principal McGonigle.

29 Mar. 2007• District Court

denied temporary restraining order and/or preliminary injunction

11 Sep. 2008• The District

Court granted summary judgment motion on all claims made by J.S. towards the School District

6 Oct. 2008• J.S.'s Notice of

Appeal

9 Apr. 2010• Third Circuit

Order for En Banc Rehearing of J.S.'s Appeal

3 Jun. 2010• The full Third

Circuit Court of Appeals hears the arguments of the case

17 Jan. 2012• School District

appeals the ruling of Third Circuit Court to the US Supreme Court.

SNYDER V. BLUE MOUNTATIN SCHOOL DISTRICT

•March 18, 2007 - J.S. and K.L., two eighth grade students at Blue Mountain Middle School, created a fictitious profile on MySpace.com using J.S.’s home computer for their school principal, James McGonigle.

• Although the profile identified him as “m-hoe=].” and did not disclose his real name or the name of the school, it contained his photograph taken from the official school website.

• The profile violated the School District's Acceptable Use Policy (“AUP”)

•The MySpace profile was initially set to public and could be accessed by anyone who had the URL or searched for it before being set to private.

•McGonigle was notified about the profile by a student.

- March 22, 2007 - J.S. and K.L. and Guers were both given a ten-day out-of-school suspension that did not allow them to attend any school functions.

- March 28, 2007 - “J.S. and her parents filed this 42 U.S.C. § 1983 civil rights action against the School District, Superintendent Romberger, and Principal McGonigle.”

o ten-day suspension violated J.S.'s First Amendment free speech rights, her due process rights, her rights under Pennsylvania state law,

O her parents' Fourteenth Amendment substantive due process rights.

o J.S. and her parents filed a motion for a temporary restraining order and/or preliminary injunction, which the District Court denied on March 29, 2007. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 3:07cv585, 2007 WL 954245 (M.D.Pa. Mar. 29, 2007).

- September 11, 2008 - The District Court granted summary judgment motion on all claims made by J.S. towards the School District

- June 3, 2010 The full Third Circuit Court of Appeals hears the arguments of the case

o 2011 - Third Circuit Court rules in favour of J.S. (& Layshock (v. Hermitage School District), another similar case ongoing at the same time).

- January 17, 2012 - School District appeals the ruling of Third Circuit Court to the US Supreme Court.

o US supreme court declines to hear the case.o Third Circuit Court ruling of 2011 stands.

The Cases that Contributed to the

Decision

Tinker Standard: Substantial Disruption

- Student speech rights could be restricted only if they: - substantially interfered with the work of the school

or - impinged upon the rights of other

students

Application of Tinker to Speech Acts

- With the internet being a “borderless medium” and having the ability to be “everywhere at once”, can speech created off campus become on-campus speech?

Geographic Standard:

- “Was the speech deliberately designed to take place beyond the schoolhouse gate” (Gower 2013)

- If yes, it is protected by the First Amendment

- School authorities cannot discipline behavior that happens off-campus. “[T]heir authority confined to the school environment” (Gower 2013)

Foreseeability Standard

- This standard addresses the “borderless nature of the Internet.

- If the speech originated off-campus “creates a foreseeable risk of substantial disruption within a school” and “materially and substantially disrupt the work and discipline of the school” (Gower 2013), then school administrators can discipline.

“Sufficient” Nexus Standard

- Is a “sufficient nexus” to the school environment is established”?

- Speech created off-campus “that is aimed at specific school and/or its personnel is brought onto the school campus or accused at school by its originator, the speech will be considered on-campus speech” (Gower 2013).

Purposeful Direction and Dissemination Standard

- Where did the speech originate and how was it disseminated?

The Standards

Tinker: speech acts

Exceptions to Tinker:

Fraser: vulgar, lewd, obscene, and plainly offensive speech

Morse: limited school speech

Hazelwood: school-sponsored

speech

The Opinion of the Court

I. First Amendment rights- J.S.’ off-campus behaviour created an effect at the school.- J.S.’ speech was extremely vulgar and lewd and invaded the rights of M.

II. & III. Fourteenth Amendment & Pennsylvania Law

- in loco parentis; school has authority to enforce behaviour so as to not interfere with the safety of or educational processes of the school.

- the suspension decision by McGonigle did not interfere with J.S.’ parents to make their own decisions regarding their child.

- J.S.’ was an enrolled student at the time of offense and when her actions created an effect at school

IV. Overbroad and Vagueness of Policy - Computer use and code of conduct is clearly outlined in the School

Handbook- Policies did not violate J.S.’ first amendment, therefore it did not

overstep the Constitution- McGonigle enforced the appropriate and stated punishment of a level-

four offense

First Decision

• The District Court for the Middle District of Pennsylvania ultimately determined that J.S.’s punishment did not violate the First Amendment and granted Blue Mountain summary judgment for three reasons.

1.Tinker did not apply because it was not a political speech

2.The school did not violate J.S.’s First Amendment rights because J.S.’s profile was “vulgar, lewd, and potentially illegal speech that had an effect on campus.”

3.sufficient nexus between J.S.’s off-campus action and its on-campus effect

The first decision was overturned

Upon Appeal to the Ninth Circuit

Due to the fact that the offense occurred off-campus and was only brought on-campus due to M.’s request, the Court found that J.S.’ first amendment rights were violated and reversed the previous ruling to in favour of J.S.

Decision

The District Court granted summary judgment in favour of the School District.

Upon appeal by J.S.’ the Ninth Circuit Court reversed the decision and ruled in favour of J.S.

Taking into consideration the Snyder ruling, Tinker Test and

Fraser Standard and past presentations, create an

effective and acceptable internet use policy governing student

access to and use of school

networks and email?

Application