Social Media Update
Karen Haase Harding H di & Shultz Sh lt (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase
J.S. v. Blue Mountain Sch. Dist.
J.S. v. Blue Mountain Sch. Dist. Middle School Student made fake MySpace profile for principal • Included photo from school website • Initially public; then limited • Students could only access off campus • Student suspended for 10 days; parents sued d
J.S. v. Blue Mountain Sch. Dist. Third Circuit • “off “ ff campus speech h th thatt causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographic technicality in order to be regulated pursuant to Tinker.” • Dissent: i no one would take profile fi seriously
Layshock v. Hermitage Sch. Dist
Layshock v. Hermitage Sch. Dist High School Student made fake MySpace profile for principal • Included photo from school website • Other students created similar and more offensive ff i profiles fi • Students only accessed off campus • Student suspended for 10 days; placed l d iin alt. l sch, h banned b d ffrom extracurriculars, no commencement
Layshock v. Hermitage Sch. Dist Third Circuit • No nexus under Tinker • No evidence of disruption • School Didn’t Meet Bethel Sch. Dist. v. Fraser – no relationship between expression and school
J.S. and Layshock Inconsistent Third Circuit granted en banc rehearing Oral Argument June 3, 2010 Decision issued June 13, 2011 The Bottom Line? Schools lost both cases
J.S. and Layshock Key legal points • School can’t punish off-campus speech because it is vulgar, inappropriate or even criminal • School S can only punish i off-campus ff p that is substantiallyy speech disruptive
What About the Staff? “We recognize that vulgar and offensive speech such as that p y in this case – even made in employed just – could damage the careers of teachers and administrators and we conclude only that the punitive action taken by the school district violated the First Amendment free speech rights i ht off JS.” JS ” i.e. “We don’t care”
Doninger v. Neihoff (2ndd Cir. Cir 2008) Student posted on personal blog School prohibited her for running for class office b/c conduct on the blog was unbecoming for class officer & post created a risk of disruption Ct N Ct: No Fi Firstt A Amendment d t violation i l ti No need to consider p propriety p y of other possible discipline
Kowalski v. Berkeley Co Schs (4th Cir. Ci 2011) Student created MySpace group harassing another student Creator of the page received • 10 10-day day suspension from school • 90-day “social suspension” Ct speech Ct.: h caused d substantial b t ti l disruption, p , therefore discipline p appropriate
Fulmer v. Swidler (Pa. 2003) Middle school student created Teacher Sux Sux” website “Teacher • Compared math teacher to Hitler • Had picture of her decapitated • Asked for contributions toward hit man Teacher sued Jury awarded $500,000 Similar Si il suit it by b principal i i l settled ttl d
D.C. v. R.S. (Cal. 2010) High school student posted on victim’s website • I want to rip out your f-ing f ing heart and feed it to you. • I've I' wanted t d to t kill you. • If I ever see yyou I'm ggoing g to pound p yyour head in with an ice pick. Family sued; defendant said just a joke Court: not protected speech
Sauerhaft v. Bd. Of Ed. (NY 2009) Student e-mailed peer on school acc’t: • FATTYFATTYFATTYFATTY fatty f tt mcfatfat wow you are one fat f**k and everyone hates h t you • Show me yyour tits • You you fat f**k I want to have sex with you in the middle of the night …. Recipient sued claiming violation of Title IX and § 1983
Social Media Update
Karen Haase Harding H di & Shultz Sh lt (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase