Federal Courts & Off-Campus Speech

CORRECT ME IF I’M WRONG (CMIIW!): A DOUBLE STANDARD IN THE FEDERAL COURTS? R. Stewart Mayers, Ed.D. EDUCATION LAW ASSOCIATION 61st Annual Conference, 2015 INTRODUCTION The history of social media traces back to the 1950s. However, the introduction of the first smartphone in 2007 began a revolution in how people communicate. Abruptly, the ability to distribute text and images to a worldwide audience from nearly anywhere and at nearly anytime became commonplace. Suddenly, the Tinker1 schoolhouse gate seemed to become a far less distinct landmark between “on campus” and “off campus.” Neither the courts nor public schools were prepared to handle the fallout from this new technology. In December of 2005, a western Pennsylvania high school student, Justin Layshock,2 created a MySpace profile in the name of his principal, Eric Trosch. Layshock created the profile using his grandmother’s computer at her home. The only school resource used was Mr. Trosch’s photograph that Layshock had copied from the school’s official website. Layshock’s unflattering profile (along with three other unauthorized, more vulgar profiles) upset Mr. Trosch who, the following January, suspended Layshock for “disruption of the normal school process” and “harassment of a school administrator via computer.”3 Layshock and his parents filed suit in the federal court, Western District of Pennsylvania, against the school, principal Trosch, and the superintendent claiming an abridgement of Layshock’s right to free expression. During mid-March 2007, an 8th grader identified in court records as “J.S.”4 with help from a classmate, created a fake profile of their principal, Mr. McGonigle, in retaliation for his sanctioning of J.S. for violations of the school’s dress code. J.S.’s profile was vulgar, suggesting the principal was a pedophile. Like Layshock, J.S. copied McGonigle’s photo from the school’s official website without authorization and used it in the profile. Layshock prevailed in the trial court, the decision of which was upheld by a 3-judge panel of the 3rd Circuit Court of Appeals. J.S.’s free expression claim failed before the federal district court for the Middle District of Pennsylvania the judgment of which was affirmed by a different 3-judge panel from the Third Circuit. The two cases were both granted rehearing before the 3rd Circuit en banc. The court decided the profiles were parody, and therefore enjoyed the protection of the first amendment. Despite both students ultimately prevailing, not all of the sitting judges were in agreement with the outcomes. Since 2008, numerous teachers have found themselves in “hot water” because of speech that occurred off campus, after hours, and did not involve the use of any school resources. Some teachers have posted insensitive, rude, or racially charged comments about their students. A Massachusetts administrator referred to her students as “germbags”5 and in one teacher’s post, students in North 1 Tinker v. Des Moines, 393 U.S. 503 (1969). 2 Layshock v. Hermitage School District No. 07-4465, 650 F.3d 205 (3rd. Cir 2011). 3 Id. at 210 4 J.S. v. Blue Mountain School District 650 F.3d 915 (3rd Cir. 2011). 5 Facebook and Teachers: Still a potentially dangerous combination for your career. http://blogs.ajc.com/get- schooled-blog/2010/08/23/facebook-and-teachers-still-a-potentially-dangerous-combination-for-your- career/?cp=3 1 Carolina were referred to as “chitlins.”6 In January of 2015, a Duncanville, Texas teacher was removed from the classroom when school officials discovered she had tweeted racial epithets and profanities on her Twitter account.7 The school district immediately placed the teacher on unpaid administrative leave. By the end of the week, the teacher had resigned. Almost without exception, teachers pay for their social media postings with their jobs. Students may refer to adults as pedophiles and their speech is “parody” that couldn’t possibly cause a “material and substantial disruption” of the educational process. A teacher refers to students as germbags and this indiscretion has been considered grounds for taking away her/his livelihood. This paper will compare the federal courts’ approach to and reasoning in these cases to address the question, have the federal courts created a double standard in its handling of social media use by students and teachers? The 3rd Circuit Court of Appeals, sitting en banc, asserted that “… a student’s free speech rights outside the school are coextensive with the rights of an adult.”8 If that be true, why are federal courts using such seemingly different standards when asked to determine the extent of First Amendment protection each deserves? A SHORT HISTORY OF SOCIAL MEDIA In the 1950s, a group referred to as “phone phreaks” created a primitive type of network that permitted primitive coded communication employing otherwise rarely used portions of the telephone network.9 A decade later, CompuServe became the first major internet service provider (ISP) in the United States. The first email was delivered in 1971 and 1978 witnessed the launch of the first virtual community.10 The first instant messaging system was introduced in 1988. The following year, a British engineer, Tim Berners-Lee began work that would culminate with the launch of the World Wide Web (WWW).11 The decade of the 1990s has been named by social media historians the “Dawning of Social Media.” During the 1990s, the internet boasted the creation of its one millionth website, Blackboard, an online instructional platform was founded, and the first recognizable social media site, Six Degrees, began service. Before the decade of the 1990s concluded, Google began operations.12 During the first decade of the new millennium, social media became a major force in revolutionizing communication. Friendster, the first modern social networking site began operations in 2002.13 A year later, MySpace and business-oriented LinkedIn were started. In 2004, Facebook opened 6 Charlotte teachers face action because of Facebook postings in Charlotte Observer, http://www.heraldonline.com/news/local/article12241319.html 7 Duncanville ISD suspends high school teacher without pay because of “reprehensible” tweet, http://thescoopblog.dallasnews.com/2014/11/duncanville-isd-apologizes-for-high-school-teachers-reprehensible- offensive-tweet.html/ ; http://www.wfaa.com/story/news/education/2014/11/09/racial-tweet-has-duncanville- teacher-in-twitter-storm/18784711/. 8 J.S., 650 F.3d at 932 9 A Brief History of Social Media retrieved from http://copybrighter.com/history-of-social-media 10 The Brief History of Social Media retrieved from http://www2.uncp.edu/home/acurtis/NewMedia/SocialMedia/SocialMediaHistory.html 11 Id 12 Supra note 7 13 The History and Evolution of Social Media retrieved from http://www.webdesignerdepot.com/2009/10/the- history-and-evolution-of-social-media/ 2 operations and was primarily marketed to college students. The same year the photo-sharing site Flickr and a news-oriented site Digg came into existence. In 2005, another news-oriented social media site Reddit and the high school version of Facebook began operations. The following year, Twitter was founded.14 The history of the smartphone dates back to 1993 when IBM first introduced the Simon smartphone. The Simon featured a 4.5” by 1.5” black-and-white screen and allowed the user to make phone calls, add contacts, create task lists, check e-mail, and use the few third-party apps then available.15 The Blackberry entered the market in 2002 and the Palm Treo 600 was introduced in 2003. The year 2007 was a watershed moment in the history of social media. That year, Apple introduced the first iPhone. A short time later, Google introduced the android operating system.16 These latest phones are, of course, powerful computers that fit into one’s pocket. Although the history of tablet computers traces back to 1963 with the Rand Tablet, the 2010 introduction of the iPad, followed soon thereafter by other tablets such as the Samsung Galaxy Tab, the BlackBerry PlayBook, the Fusion Garage JooJoo and the Cisco Cius revolutionized computing and, by extension the world of social media.17 As a result of the introduction of easily portable devices, the use of social media exploded. In 2007, Facebook boasted 58 million users. The following year, that number nearly tripled to 145 million users. By 2012, Facebook had over one million users for the first time. That number increased by another 25% a year later.18 This explosion in the number of social media users overnight created issues for school administrators previously unimagined. The speed at which portable computing technology has evolved has far extended the courts’ ability to address the issues these technologies have created. TINKER, PICKERING AND THEIR PROGENY To understand the courts’ task of providing a legal framework for analyzing claims rooted in student and teacher social media speech and school officials’ resulting frustration in identifying workable strategies for addressing problematic social media speech, it is necessary to re-examine what the courts have already said about student and teacher speech in general. Any discussion of student speech begins with Tinker v. Des Moines19 and for teacher speech the starting point is the Court’s opinion in Pickering v. Board of Education of Township High School District 205.20 Student Speech and the First Amendment 14 Supra note 7 15 IBM Simon: World’s First Smartphone is now 20 years Old retrieved from http://www.androidauthority.com/ibm-simon-birthday-134255/ 16 A Brief History of Smartphones retrieved from http://www.techhive.com/article/199243/a_brief_history_of_smartphones.html 17 http://www.zdnet.com/article/the-history-of-tablet-computers-a-timeline/ 18 Facebook: 10 years of Social Networking, in Numbers retrieved from http://www.theguardian.com/news/datablog/2014/feb/04/facebook-in-numbers-statistics 19 393 U.S.

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