PA Appeals Court Weighs Punishment For Students' Online Parodies

crimeandpunishment writes "Is it a student's right to free speech or a school's right to discipline? A US Appeals Court in Pennsylvania heard arguments Thursday on a case that could have far-reaching implications. The issue involves the suspension of two students, from two different Pennsylvania school districts, for web postings they made on their home computers. The students posted parody profiles on MySpace that mocked their principals. The American Civil Liberties Union argued on behalf of the students."

Tinker

[cappp]

The ACLU page gives more details about the cases including:

In one case, student Justin Layshock used his grandmother's computer to post a mock profile of his principal on MySpace, using the principal's name and picture to pretend it was the principal. The profile said things like the principal was "too drunk to remember" his birthday and has been drunk many times; was a "big steroid freak" and belonged to "Steroids International," in the past month smoked a "big blunt" (I'm guessing most of you don't need me to explain what blunt means in a footnote, like the court did!), and took "pills"; does not have a "big dick," is a "big fag" and is "transgender."

Justin's principal was displeased (go figure!) so he suspended him for 10 days, kicked him out of all interscholastic activities, removed him from AP classes and stuck him in a class with low-performing students. The ACLU sued and got Justin back into classes pretty quickly.

and:

In the other case, student J.S. used her parents' computer to post a mock profile of her principal on MySpace, not using his name but including his picture and suggesting he was a principal in Alabama. The profile said things like the principal was a "tight ass," "wonderful, hairy expressionless, sex addict, fagass put on this world with a small dick"; spent time with his child who "looks like a gorilla"; likes "fucking in [his] office" and "hitting on students and their parents"; and loves "sex of any kind," being a "dick head," and his "darling wife who looks like a man." J.S.'s principal wasn't pleased either, so he suspended J.S. for 10 days.

Oh, one more difference: the judges. Six different judges on the two cases. Justin won his case 3-0. J.S. lost her case 2-1. So four appeals court judges thought that the schools violated the students' rights. Two judges, one of whom was district court judge specially assigned to hear the case, thought otherwise.

It’s a tough one. The courts have found repeatedly that children don’t enjoy complete constitutional rights, especially within the context of schooling. However they do have some degree of first amendment right – as long as that doesn’t prove to be a disruption. The court is supposed to apply the Tinker Test (derived from Tinker v. Des Moines Independent Community School District which can be found http://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independent_Community_School_District [wikipedia.org]) – which comes down to an assessment of whether behaviour “"materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.” There are subsequent cases that further refined the Tinker standard, which can be read about at the wiki page, but they all repeated the general rule that students do not enjoy unabridged free speech.

So the question for us really is whether the creation of those fake profiles could be counted as disruptive to discipline in the operation of the school. There are, of course, compelling points on both sides. The question of defamation and the extreme damage accusations of paedophilia causes are also relevant.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Simple

[characterZer0]

Homeschooling parents to not have to deal with an outside authority figure overstepping his bounds. The parents have a right to discipline their own children, regardless of the time and place of the transgression.

Re:Accusations of pedophilia?!?!

[Troy Roberts]

Sorry, you are wrong. Libel and Slander are not criminal offenses. They are civil offenses and this gives the principle a cause of action. So, he can sue.

Re:Accusations of pedophilia?!?!

[morgan_greywolf]

BTW--Pennsylvania is not one of them.

Re:Accusations of pedophilia?!?!

[silentcoder]

Actually - it wasn't libel.
The Jerry Fallwell case against Hustler failed on EXACTLY these grounds. Fundamental to the law is that "if there is no reasonable chance that anybody would take the claims seriously - the jury is REQUIRED to find the publisher INNOCENT."

It is ONLY possible to be guilty of libel if the people familiar with the target would reasonably BELIEVE the claims. Since the school board themselves have testified that "nobody took the claims seriously" - it is therefore absolutely NOT libel.

I don't LIKE the nature of this parody, but it IS in fact protected parody under U.S. law and the student acted entirely within her first amendment rights.

Re:Accusations of pedophilia?!?!

[nbauman]

intentionally misrepresenting someone as something that is patently false is libel or slander depending on how it is done. This is a criminal offense.

What country are you from? First of all, libel is not a criminal offense in the U.S. (or most other democratic countries). Libel hasn't been a criminal matter since the American Revolution.

Libel is a civil offense, and the subject of the libel is limited to suing for damages in civil court.

Second of all, intentionally misrepresenting someone for purposes of satire and parody is specifically protected by the First Amendment and the Supreme Court. If the claims are so outrageous that no reasonable person would believe them, there's no libel. The more outrageous the claims, the weaker the case for libel.

The leading case is Hustler Magazine, Inc. et al. v. Jerry Falwell. Falwell sued Hustler for an advertisement parody that portrayed him as having had a drunken sexual encounter with his mother in an outhouse.

http://www.firstamendmentcenter.org/speech/arts/topic.aspx?topic=parody_satire [firstamendmentcenter.org]

As the judge said in TFA, you can make it a teachable moment. People in the U.S. have a right to satirize figures of authority. Satire can be painful, but that's the price we pay for a free society.