Justin Layshock v. Hermitage Sch Dist

Filing 28

ELECTRONIC AMICUS BRIEF on behalf of Amicus Appellees/Cross-Appellants PA Ctr for the First Amendment and Student Press Law Ctr in 07-4465 and 07-4555, filed. Pages: 26, Words: 5242, Manner of Service: mail, Certificate of Service dated 06/03/2008. [07-4465, 07-4555] (Filed with Consent of All Parties) (EMA) [Entered: 06/18/2008 04:40 PM]

Received and Filed
07-4465 & 07-4555
06/03/08
Marcia M. Waldron,
Clerk

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
DOCKET NOS. 07-4465 AND 07-4555

JUSTIN LAYSHOCK, a minor, by and through his parents, DONALD
LAYSHOCK and CHERYL LAYSHOCK,
Appellees/Cross-Appellants,
v.
HERMITAGE SCHOOL DISTRICT; KAREN IONTA, Superintendent; ERIC
W. TROSCH, Principal, Hickory High School; CHRIS GILL, Co-Principal,
Hickory High School, in their official and individual capacities,
Appellants/Cross-Appellees.
On Appeal from the judgment and the Order of the United States District Court for
the Western District of Pennsylvania dated July 10, 2007 at Docket No. 2:06-cv00116
BRIEF FOR AMICI CURIAE
The Student Press Law Center
The Pennsylvania Center for the First Amendment
Filed in Support of Appellees/Cross-Appellants, Seeking Affirmance
Joanna J. Cline (Pa. Id. No. 83195)
Brian A. Berkley (Pa. Id. No. 200821)
Joshua B. Hirshey (Pa. Id. No. 91736)
Emmett M. Hogan (Pa. Id. No. 206501)
PEPPER HAMILTON LLP
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103
[phone]
Counsel for Amicus Curiae
The Student Press Law Center

Frank D. LoMonte (Ga. Id. 456505)
Michael C. Hiestand (Wash. Id. 33913)
Adam Goldstein (N.Y. Bar., Adm. Sept. 2003)
THE STUDENT PRESS LAW CENTER
1101 Wilson Boulevard, Suite 1100
Arlington, VA 22209-2211
[phone]
Robert D. Richards (Pa. Id. 50077)
Clay Calvert (Cal. Id. 155130)
PENNSYLVANIA CENTER FOR THE
FIRST AMENDMENT
The Pennsylvania State University
308 James Building
University Park, PA 16802
[phone]

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... iii
IDENTITY OF THE AMICI CURIAE, STATEMENT OF INTEREST, AND
SOURCE OF AUTHORITY TO FILE .....................................................................v
SUMMARY OF ARGUMENT .................................................................................1
ARGUMENT .............................................................................................................3
I. SUPREME COURT PRECEDENT PROHIBITS SCHOOL OFFICIALS
FROM PUNISHING OFF-CAMPUS STUDENT SPEECH.................................3
II.
THIS COURT SHOULD FOLLOW OTHER FEDERAL COURTS
THAT HAVE DECLINED TO ASSESS OFF-CAMPUS STUDENT SPEECH
UNDER THE STANDARDS DEVELOPED FOR ON-CAMPUS STUDENT
SPEECH .................................................................................................................7
A.
Other Appellate Courts Have Recognized The Supreme Court’s
Distinction Between On-Campus And Off-Campus Speech..............................7
B.
District Courts Likewise Have Declined To Extend School Authority
Beyond The School Context. ............................................................................11
III. J.S. V. BETHLEHEM AREA SCHOOL DISTRICT CONFLICTS WITH
APPLICABLE FEDERAL PRECEDENT AND SHOULD NOT BE ADOPTED
....................................................................................................................12
IV. GRANTING SCHOOL OFFICIALS THE POWER TO PUNISH OFFCAMPUS SPEECH WILL INEVITABLY CHILL LEGITIMATE STUDENT
EXPRESSION ......................................................................................................15
V.
EVEN IF TINKER WERE TO APPLY TO LAYSHOCK’S SPEECH,
APPELLANTS STILL VIOLATED THE FIRST AMENDMENT....................22
CONCLUSION........................................................................................................26

CERTIFICATE OF SERVICE AND FILING ........................................................27
COMBINED CERTIFICATION .............................................................................28

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TABLE OF AUTHORITIES

Page:

Cases:

Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)……...3-4
Doninger v. Niehoff, No. 07-3885 (2d Cir. May 29, 2008)…………..9-10
Emmett v. Kent School District No. 415,
92 F. Supp. 2d 1088 (W.D. Wash. 2000)…………………………….12
Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988)………………………4
J.S. v. Bethlehem Area School District, 569 Pa. 638 (2002)…………12-13
Klein v. Smith, 635 F. Supp. 1440 (D. Me. 1986)……………………11
Morse v. Frederick, 127 S.Ct. 2618 (2007)…………………………..2, 4-5
NAACP v. Button, 371 U.S. 415 (1963)………………………………19
Porter v. Ascension Parish School Board,
393 F.3d 608 (5th Cir. 2004)………………………………………….10-11
Shanley v. Northeast Independent School District,
462 F.2d 960 (5th Cir. 1972)………………………………………….25
Thomas v. Board of Education, Granville Central School District,
607 F.2d 1043 (2d Cir. 1979)…………………………………………7-9, 17-18, 25
Tinker v. Des Moines Independent Community School District,
393 U.S. 503 (1969) ………………………………………………….1, 3, 17
Wisniewski v. Board of Education, 494 F.3d 34 (2d Cir. 2007)………9

Other Authorities:
Indictment in Internet Suicide, The Washington Post,
May 16, 2008 at D02…………………………………………………21

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Clay Calvert, “Off-Campus Speech, On-Campus Punishment:
Censorship of the Emerging Internet Underground,”
7 Boston Univ. J. of Sci. & Tech. L. 243 (2001)……………………..23

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IDENTITY OF THE AMICI CURIAE,
STATEMENT OF INTEREST,
AND SOURCE OF AUTHORITY TO FILE

This Amicus Curiae Brief is respectfully submitted by the Student
Press Law Center and the Pennsylvania Center for the First Amendment
(collectively, “Amici”).
The Student Press Law Center (the “SPLC”) is a nonprofit, nonpartisan organization which, since 1974, has been the nation’s only legal assistance
agency devoted exclusively to educating high school and college journalists about
the rights and responsibilities embodied in the First Amendment to the Constitution
of the United States. The SPLC provides free legal advice and information, as well
as low-cost educational materials for student journalists on a variety of legal topics.
Because the SPLC’s work focuses in part on issues relating to the
First Amendment rights and responsibilities of high school and university students,
their parents, and the authority and constitutional limits imposed on school district
and government officials, the SPLC has a special interest in the potential
consequences of the decision of the United States District Court in this matter,
which substantially implicate issues of censorship of off-campus speech in public
high schools and universities.

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The Pennsylvania Center for the First Amendment (the “PCFA”)was
established by the Pennsylvania State University in 1992 to promote awareness and
understanding of the principles of free expression to the scholarly community and
the general public. The PCFA’s goals support the University’s outreach mission of
providing the Commonwealth and the nation with education, research and service.
Faculty members involved in the PCFA have published books and articles on First
Amendment topics. The PCFA regularly tracks issues related to student
expression, and the research generated from those projects is presented annually at
national education law conferences. Additionally, the PCFA provides expert
testimony to courts and legislative bodies grappling with First Amendment issues.
Pursuant to F.R.A.P. 29(a), this Brief is being filed without a motion
seeking leave of Court, because the Appellants and the Appellees have consented
to its filing.

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SUMMARY OF ARGUMENT
The right of free expression is the life-blood of a free society. To
safeguard it, the First Amendment provides that the power of the government shall
intrude upon the expression of citizens in only the rarest circumstances; absent
such circumstances, the agents of the state may not touch the speaker or the
speech, no matter how disfavored. An individual’s status as a high school student
does not destroy these basic rights. Students “are ‘persons’ under our
Constitution,” entitled to “fundamental rights which the State must respect.”
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 511
(1969).
To be sure, courts interpreting the First Amendment have held that the
constitutional rights of public school students in the school environment are not coextensive with those of adults in other settings. But even the well intentioned goal
of maintaining a school environment conducive to learning does not give school
administrators an unlimited license to reach beyond the schoolhouse gate to punish
students for speech made away from school grounds and outside the context of the
school environment.
The administrators of the Hermitage School District—Appellants
here—did exactly that. They punished Justin Layshock for speech, in the form of a
posting to a non-school website, that took place after school hours, on his

grandmother’s personal computer, using a private (i.e., not school-owned) Internet
service provider. The District Court ruled as a matter of fact that such speech was
off-campus, and Appellants do not make any viable challenge that conclusion.1
Rather, Appellants and Amicus Pennsylvania School Boards
Association (“PSBA”) seek to expand their ability to regulate off-campus student
speech “in situations wherein a student utilizes the instantaneous and global reach
of the Internet to direct ‘speech’ to a school district community.” Appellants’
Brief at 18. In support of their quest for expanded power, Appellants and the
PSBA invoke a litany of student free speech Supreme Court decisions that actually
undermine their position. Appellants and the PSBA rely on Tinker and its progeny,
but those cases address the extent of students’ rights inside the schoolhouse gate
(or conversely, they address the bounds of a school district’s ability to punish oncampus speech).
In fact, to the extent the Tinker line of cases address off-campus
speech at all, they make clear that outside the schoolhouse gate, a student’s First
Amendment rights are subject only to the reasonable time, place, and manner

1

By contrast, in Morse v. Frederick, 127 S. Ct. 2618 (2007) – on which the
Appellants rely – “every other authority to address the question” in that case
(namely, the U.S. District Court for the District of Alaska and the Ninth Circuit
Court of Appeals) concluded that it was, factually, “a school speech case”
involving on-campus speech. Morse, 127 S. Ct. at 2624.

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restrictions applicable to speech by any American. Thus, in punishing Layshock
for his off-campus speech, Appellants violated his First Amendment rights.
ARGUMENT
I.

SUPREME COURT PRECEDENT PROHIBITS SCHOOL
OFFICIALS FROM PUNISHING OFF-CAMPUS STUDENT SPEECH
The Tinker Court held that, within the “schoolhouse gate,” school

officials can restrict student speech only if such speech “materially and
substantially disrupts the work and discipline of the school.” Id. at 513. The Court
emphasized that in analyzing students’ First Amendment rights, the government’s
enhanced disciplinary powers at school were to be considered in “light of the
special characteristics of the school environment.” Id. at 506. Nowhere did the
Court suggest that such powers extended beyond the “schoolhouse gate,” nor has
the Court made any such suggestion in the 39 years since Tinker was decided. In
fact, the Court has been consistently careful to limit intrusions on students’ rights
to conduct taking place on school property, at school functions, or while engaged
in school-sponsored or school-sanctioned activity.
In Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the
first student speech case after Tinker, the Court upheld the punishment of a student
who gave an “offensively lewd and indecent speech” at a school function. Id. at
685. This punishment was not prohibited by the First Amendment because the
speech in question was given at a school event. As Justice Brennan’s concurrence
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made clear, however, if the student “had given the same speech outside of the
school environment, he could not have been penalized simply because government
officials considered his language to be inappropriate[.]” Id. at 688 (Brennan, J.,
concurring).
This principle was reinforced in the Court’s next two student speech
cases. In Hazelwood v. Kuhlmeier, 484 U.S. 260, 266 (1988), the Supreme Court
held that a principal could censor the publication of stories in a school-sponsored
student newspaper when the censorship was “reasonably related to legitimate
pedagogical concerns.” Id. at 273. Nevertheless, in Justice White’s majority
opinion, the Court recognized that, although the school could censor certain
speech, “[it] could not censor similar speech outside the school.” Id. at 266.
In Morse v. Frederick, decided in 2007, the Supreme Court held that a
school could punish a student who, at a school-sanctioned event during school
hours, stood directly across from the school grounds and displayed an offensive
banner promoting drug use. Morse, 127 S. Ct. at 2625. Writing for the majority,
Chief Justice Roberts expressly rejected the argument that it “[wa]s not a school
speech case,” noting—unlike here – that the events “occurred during normal
school hours” and at a school-sanctioned activity; the Chief Justice also noted that
the lower courts thought it was “a school speech case” as well. Id. at 2624. Even
in Morse, the Court emphasized the importance of the fact that the speech was

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made at a school-sponsored activity and made the same point Brennan made in
Fraser: while “Fraser’s First Amendment rights were circumscribed [at school,]”
had he “delivered the same speech in a public forum outside the school context, it
would have been protected.” Id. at 2626-27.
In sum, no Supreme Court case addressing student speech has held
that a school may punish students for speech away from school – indeed, every
Supreme Court case addressing student speech has taken pains to emphasize that,
were the speech in question to occur away from school, it would be protected.
In their attempts to contort Tinker and its progeny in support of their
position, Appellants assert that the rise of the Internet has blurred the distinction
between on-campus and off-campus speech. They argue that the on-campus
standards in those cases should now carry over to all manner of student speech,
wherever made, simply because that speech winds its way on a circuitous route
through the ether and arrives on the doorstep of the school community. Such
extreme overreaching simply is not consistent with the First Amendment (nor is it
justified by any legitimate educational goals).
In 2008, a school cannot punish a student for off-campus Internet
speech any more than the Bethel School District could have punished Matthew
Fraser in 1983 for making a lewd speech “outside the school environment,” or the
Hazelwood School District could have punished the student journalists in 1983 for

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publishing articles on pregnancy and divorce “outside the school,” or the principal
of Juneau-Douglas High could have punished Joseph Frederick in 2002 had he
made his speech “in a public forum outside the school context.” In all three postTinker cases, the aftermath of the speech at issue was likely to have some
disruptive impact on the school community even if made off-campus; indeed, in
Fraser and Kuhlmeier, the subject matter of the speech that would have been
protected off-campus concerned the school itself. Presumably, this fact was not
lost upon Justices Brennan and White when remarking upon the students’
unfettered rights to give such speeches outside of school.
The Supreme Court’s jurisprudence is clear, and technological
innovation does not render it null. If the publication of a student’s speech does not
take place on school grounds, at a school function, or by means of school
resources, a school cannot punish the student without violating his First
Amendment rights.2

2

In a further strained attempt to transform Layshock’s speech into on-campus
speech, the Appellants attempt to create a “nexus” by the purported
misappropriation of a photograph of Principal Trosch from a school website for
use in Layshock’s MySpace profile. Leaving aside the substantial question of
whether Layshock’s use of the photograph was legally wrongful at all, since
parody is a well-recognized exception to copyright protection of an image,
electronically copying and pasting a school photo into a personal website does not
somehow transform the personal website into on-campus speech. To the extent
that the school believed that a misappropriation occurred, ample legal recourse
exists without punishing speech; but it has never been the school’s position that
(continued...)

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II.

THIS COURT SHOULD FOLLOW OTHER FEDERAL COURTS
THAT HAVE DECLINED TO ASSESS OFF-CAMPUS STUDENT
SPEECH UNDER THE STANDARDS DEVELOPED FOR ONCAMPUS STUDENT SPEECH
Consistent with the Tinker line of cases, lower courts have protected

off-campus student speech from school censorship. In so doing, these courts
recognize that students enjoy their full free speech rights as citizens when they
speak in the general community. Amici the SPLC and the PCFA respectfully urge
this Court to do the same.
A.

Other Appellate Courts Have Recognized The Supreme
Court’s Distinction Between On-Campus And Off-Campus
Speech.
The Second Circuit recognized this essential First Amendment

principle in Thomas v. Board of Education, Granville Central School District, 607
F.2d 1043 (2d Cir. 1979), which is cited by the lower court here. In Thomas, four
high school students were suspended for the off-campus distribution of a satirical
humor newspaper, Hard Times, which contained lewd and prurient articles and
drawings. Id. at 1045-46. Although distributed off-campus, preparation for
publication took place in a classroom after school hours and some of the articles
________________________
(continued...)

Layshock would have incurred the same punishment had he “stolen” Principal
Trosch’s photo to make a MySpace page honoring Trosch as “Educator of the
Year.” To the contrary, it is clear that Layshock’s negative viewpoint of Trosch
was the motivating factor for the discipline, and it is beyond dispute that the state
may not single out disfavored viewpoints for differential treatment.

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were written or typed at school. Further, the copies to be distributed were stored in
a closet at the school. Id. After an unknown student brought a copy of Hard Times
on campus, a school administrator became aware of the publication and its
offensive content and as a result punished the student publishers. Id. at 1045-46.
In finding that the student’s First Amendment rights were violated, the
Thomas Court insisted on a strict and clear delineation of the boundary beyond
which the punitive reach of school administrators may not extend. Mindful of the
deference owed to administrators charged with maintaining order and discipline
within the school, the Court nevertheless observed that this deference had its
limits: “our willingness to grant school officials substantial autonomy within their
academic domain rests in part on the confinement of that power within the metes
and bounds of the school itself.” Id. at 1052.
Beyond those “metes and bounds” lies the wider society, where First
Amendment strictures apply with full vigor. Because the administrators at
Granville High had “ventured out of the school yard and into the general
community where the freedom accorded expression is at its zenith,” the Thomas
Court held that “their actions must be evaluated by the principles that bind
government officials in the public arena.” Id. at 1050. In keeping with this logic,
the Court declined to apply Tinker’s substantial disruption test. The Court noted

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that, because the case before it involved off-campus speech, it arose “in a factual
context distinct from that envisioned in Tinker and its progeny.” Id.
Importantly, the Thomas Court did not regard the few connections that
did exist between school property and the newspaper to be sufficient to transform
Hard Times into on-campus speech. Rather, it recognized that these
“insignificant” contacts did not change the fundamental fact that the newspaper
“was conceived, executed, and distributed outside the school.” Because of this, the
Court considered the contacts with campus to be “de minimis” and accordingly
concluded that the expression was not governed by Tinker’s “substantial
disruption” test. By ruling that school authorities can go no farther than the “metes
and bounds” of the school itself, the Thomas Court upheld the stark line that
protects student speech and prevents the government from reaching beyond the
“schoolhouse gate.”3

3

Appellants err in relying on Wisniewski v. Board of Education, 494 F.3d 34
(2d Cir. 2007), in support of their contention that the District’s punishment of
Justin Layshock was justified because it was reasonably foreseeable that the profile
would come to the attention of school officials. Amici respectfully suggest that the
approach in Wisniewski is flatly contrary to the clear import of the Supreme Court
cases governing student speech, as described above. Appellees’ brief explains the
inconsistency between that case and the Supreme Court precedents. See
Appellees’ Br. at 45-46.
Likewise, the recently issued ruling in Doninger v. Niehoff, No. 07-3885
(2d Cir. May 29, 2008), inasmuch as it follows Wisniewski, is wrongly decided and
should not be followed by this Court. In that case, which involved a school’s
(continued...)

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The Fifth Circuit also recognized this bright line in Porter v.
Ascension Parish School Board, 393 F.3d 608 (5th Cir. 2004). In Porter, a
drawing that was made at home and that depicted the school in an offensive
manner was inadvertently brought to campus by the plaintiff’s younger brother.
Id. at 611. Nevertheless, school officials punished the plaintiff. Id. at 612.
In declining to apply Tinker, the Fifth Circuit recognized that the
government had no authority to punish the student because his speech – though
clearly related to the campus – was nevertheless off-campus expression. Id. at 615.
Quoting Thomas and other cases, the Porter Court concluded that, since the
________________________
(continued...)

decision to remove a student from a class officer position and bar her from seeking
future offices in retaliation for comments on a blog attempting to prompt public
complaints to the superintendent’s office, the court narrowly limited its ruling to
the specific facts at hand. In the Doninger Court’s view, the consequence imposed
by the School District was minimal and was justified by a concern for undermining
the integrity of the student government: “[W]e have no occasion to decide whether
a different, more serious consequence than disqualification from student office
would raise constitutional concerns.” Id. at p. 19.
In any event, in Doninger, the Court declined to adopt the argument made by
the School District that, under Wisniewski, it had a free hand to punish off-campus
speech that, were it to occur on-campus, would be punishable under Fraser. Id. at
p. 13. Rather, the Court only permitted the punishment of off-campus speech
when warranted under the Tinker standard. As noted, the District Court here found
that, even under Tinker, no punishment was justified for Justin Layshock’s offcampus speech. Thus, even under Wisniewski, the Appellants’ argument that a
school district can punish off-campus speech for merely being offensive or vulgar
has no support.

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drawing “was composed off-campus and remained off-campus … until it was
unintentionally taken to school,” Tinker did not apply. Id. at 615. Instead, the
First Amendment applied with full force, barring the school from punishing the
plaintiff. Id. at 617-18.
Taken together, and echoing the clear holding of Tinker that students
are “‘persons’ under our Constitution,” Tinker, 393 U.S. at 511, Thomas and
Porter show that, beyond the strictly defined limits of the school environment,
students enjoy full First Amendment protection and are not relegated to full-time,
second-class citizen status.
B.

District Courts Likewise Have Declined To Extend School
Authority Beyond The School Context.
Several federal district courts have limited school official authority in

the same manner as the Supreme Court, the Thomas Court, and the Porter Court.
In Klein v. Smith, for instance, a high school student “extended the middle finger of
one hand” towards a teacher when they saw each other in restaurant parking lot.
635 F. Supp. 1440, 1440-41 (D. Me. 1986). Noting that this vulgar gesture was
made in a place “far removed from any school premises or facilities at a time when
[the teacher] was not associated in any way with his duties as a teacher,” the
District Court concluded that any connection between the gesture and the school
was “far too attenuated to support discipline[.]” Id. at 1441.

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Even in the Internet Age, this on-campus/off-campus distinction has
been protected in district court. In Emmett v. Kent School District No. 415, high
school administrators suspended a student who had created a website with “mock
obituaries” of his classmates. 92 F. Supp. 2d 1088, 1089 (W.D. Wash. 2000). The
District Court granted the plaintiff’s motion for a preliminary injunction, finding
that the speech in question had no connection to any “class or school project” or
was in any way “school-sponsored”; indeed, while “the intended audience was
undoubtedly connected to” the high school, “the speech was entirely outside of the
school’s supervision or control.” Id. at 1090.
III.

J.S. V. BETHLEHEM AREA SCHOOL DISTRICT CONFLICTS
WITH APPLICABLE FEDERAL PRECEDENT AND SHOULD NOT
BE ADOPTED
In contending that off-campus Internet use directed toward the school

community can be punished by school officials, Appellants rely upon a case
decided by the Pennsylvania Supreme Court, J.S. v. Bethlehem Area School
District, 569 Pa. 638, 807 A.2d 847 (2002). In J.S., the Court attempted to reshape
the analysis for school speech cases by reclassifying off-campus expression as oncampus expression using a “sufficient nexus” test. Pursuant to this test, “where
speech that is aimed at a specific school and/or its personnel is brought onto the
school campus or accessed at school by its originator, the speech will be
considered on-campus speech.” Id. at 668.

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The J.S. approach stands in stark contrast to the fundamental idea,
forged in the jurisprudence of the Supreme Court and confirmed in the federal
cases cited above, that there is a distinction between speech that occurs on-campus
and speech that occurs off-campus.4 Adoption of the J.S. test by a federal court
would mean that speech on any topic, brought on campus (in any medium) by any
person (including school officials), could be considered on-campus speech and
could run the risk of being punishable under Tinker, Fraser, or Kuhlmeier. This
broad, unlimited test, which would be implemented at the government’s discretion,
amounts to a standardless counting of the connections between the speech and the
school community, and provides no means to assess the relative significance of
those connections.5 Its ambiguity alone makes the extent of protection unclear and,
thus, has the potential to chill off-campus expression unjustifiably.

4

Here, the District Court recognized this fact, prudently finding that J.S.
incorrectly balanced student expression and school authority. 496 F. Supp. 2d at
602.
5

The J.S. Court found that a “sufficient nexus” existed for several reasons:
first, because the student accessed the website on campus, showed it to another
student, and told other students about it; second, because administrators and faculty
accessed the site at school; third, because the audience was not “random” but was a
“specific audience of students and others connected with this particular School
District”; and finally, because school officials “were the subjects of the site.” J.S.,
569 Pa. at 668. Each of these connections is patently inadequate to sustain the
conclusion that the expression was on-campus. Whether speech is on-campus or
off-campus is, as the J.S. Court itself put it, a “threshold consideration of
location.” Id. at 666. (Emphasis added.) The identity of the intended audience
(continued...)

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This Court should not disregard the distinction between on-campus
and off-campus speech established in First Amendment jurisprudence. Adoption
of J.S. would permit school administrators to determine that off-campus student
speech could be subject to punishment because it concerned the school, was
addressed to members of the school community, was received by members of the
community, or any other such combination of links. These types of contacts bring
to mind the types considered “de minimis” by other Courts of Appeal. To hold
otherwise would dismantle the First Amendment protection to students outside the
schoolhouse gates by allowing the school district itself to determine that a
sufficient nexus exists. The United States Supreme Court has never granted such
broad powers to school officials. Any adoption of the J.S. test would thus be
inconsistent with federal First Amendment jurisprudence.6
________________________
(continued...)

and the subjects of the expression of course have nothing to do with location
(indeed, inasmuch as the subject matter of the expression concerned the school,
consideration of this factor would chill off-campus student expression about their
school lives). Furthermore, as the Porter Court acknowledged, to the extent that
expression reached the campus through the actions of others (in J.S., school
administrators and faculty), the expression should not be treated as on-campus.
Finally, as the Thomas Court noted, some connections are simply too de minimis to
warrant application of Tinker; in J.S., the facts that the student accessed the site on
campus, showed it to a friend, and told people about it are as tenuous as the
connections in Thomas and Porter.
6

The common denominator in the “online speech” cases on which the
District and PSBA rely, the J.S. case and Wisniewski is that the speech in those
(continued...)

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IV.

GRANTING SCHOOL OFFICIALS THE POWER TO PUNISH OFFCAMPUS SPEECH WILL INEVITABLY CHILL LEGITIMATE
STUDENT EXPRESSION
The Appellants wish to use the “sufficient nexus” test of J.S. as a door

through which they can export the standards of Tinker, Fraser and Kuhlmeier to
off-campus speech generally. That door should be kept closed.
The standard urged by the Appellants and by the PSBA would enable
school authorities to suppress even core First Amendment speech addressing
matters of great public concern. Everything the Appellants and PSBA say about
Layshock’s speech – that its subject matter concerned the school, that it was
directed to reach a school audience, that it was reasonably anticipated to be
discussed at school – would apply equally to the high school student who writes a
truthful letter-to-the-editor of her city’s local newspaper that exposes harassment
of or discrimination against students by faculty at her school. The First
Amendment cannot countenance a standard under which the state may prevent a
student from talking, truthfully, about her school when she is away from school.
________________________
(continued...)

instances was interpreted as threatening violence against particular teachers.
Though it is debatable whether a reasonable person would have viewed the speech
in J.S. and Wisniewski as serious threats rather than distasteful humor, it is
unsurprising that courts are less willing to second-guess disciplinary decisions
where school officials are responding to what they say were credible and
particularized threats of bodily harm. There is no such allegation in this case.

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The Appellants and PSBA place heavy reliance on the vulgarity of
Layshock’s speech, but a standard enabling the state to block or punish speech
because of vulgar content would encompass core First Amendment speech as well.
Further, the Supreme Court has made clear that students can engage in vulgar
speech off-campus. In making the point that Fraser’s lewd and indecent speech
would be protected if expressed off-campus, the Supreme Court in Morse cited to
Cohen v. California, 403 U.S. 15 (1971) as support. In Cohen, the Court held that
the government could not punish the wearing of a “fuck the draft” jacket in a
public building. By relying upon Cohen, the Morse Court extends to students the
right to engage in similarly vulgar speech. Had Layshock’s website said, “Fuck
the principal’s busing policy,” it undoubtedly would have been protected,
notwithstanding its vulgarity. Such a website, however, as “school related”
speech, would flunk the First Amendment test urged by Appellants here.
Accepting the position urged by the Appellants and PSBA would
render students second-class citizens under the guise of the First Amendment
simply because they are enrolled as students. For example, under the Appellants’
and PSBA’s rationale, the state (through the school) can punish Justin Layshock
even though he engaged in speech off-campus, though the state clearly cannot
punish a high school dropout for engaging in the same speech. Not only is there no
support for this differential treatment in the law, the Supreme Court has expressly

-16-

stated otherwise by making clear that students are considered “persons” under the
First Amendment. Tinker, 393 U.S. at 511. To the extent a school has authority to
punish speech, such power is rooted in “light of the special characteristics of the
school environment,” not the mere fact a person is a student. Id. at 506.
Accordingly, speech expressed on-campus, in a school-sponsored medium, or
during a school-sanctioned event that violates the precepts of Tinker, Fraser,
Kuhlmeier, or Morse can be sanctioned. The school’s powers, however, do not
reach beyond this scope.
Moreover, because off-campus speech can arrive on-campus in a wide
variety of ways, students who wish to avoid punishment for their off-campus
speech may find it difficult to keep their expression from those who might bring it
with them to campus. This realization may dissuade students from engaging in
speech over the Internet, since they would thereby be unable to control whether it
could be accessed by school administrators. Indeed, in declining to apply Tinker,
the Thomas Court acknowledged this very problem:
It is not difficult to imagine the lengths to which school
authorities could take the power they have exercised in
the case before us. If they possessed this power, it would
be within their discretion to suspend a student who
purchases an issue of National Lampoon, the inspiration
for Hard Times, at a neighborhood newsstand and lends
it to a school friend. And, it is conceivable that school
officials could consign a student to a segregated study
hall because he and a classmate watched an X-rated film
on his living room cable television…. [S]chool officials,
-17-

in such instances, are not empowered to assume the
character of Parens patriae.
Thomas, 607 F.2d at 1051. After all, if school administrators are empowered to
punish off-campus expression, then the burden will be on the speaker to prevent
the administrators from learning of it. Placing such a burden on students’ free
speech rights will inevitably make students more reluctant to exercise those rights.
The chilling effect of Appellants’ position is exacerbated by the fact
that it imposes no firm limits on school officials’ ability to find a “sufficient
nexus” and, accordingly, impose punishment on off-campus speech. (This
concerned the Thomas Court as well, as the above-quoted excerpt makes clear.)
The Appellants provide no guidance whatsoever on how to determine which
contacts create a “sufficient nexus” and which do not. They provide no guidance
because, of course, they cannot; the test they urge is potentially boundless in its
application.7
If courts were to adopt the vague, impressionistic standard urged by
Appellants and the PSBA, the punitive power of the school could be brought to
bear on speech regardless of its subject, time, location, audience, or means of

7

Indeed, as noted above, not even the J.S. Court explained what can
constitute a “nexus” and what would make it “sufficient” to warrant application of
Tinker.

-18-

communication.8 The “sufficient nexus” test could warrant punishment of a
student for speech that is critical of administrators – even if it takes place entirely
off school grounds and outside school hours, to an audience with no connection to
the school.
Imagine, for instance, if a student criticized his school’s harassment
policy, which does not cover sexual orientation, at a gay pride event. Or imagine if
a student criticized his school’s harassment policy, which does cover sexual
orientation, at a religious event. Would a “sufficient nexus” exist in either case? If
the speech in either case also happened to be vulgar, would Fraser apply, such that
the school would not even have to show the risk of a substantial disruption?
That these questions have no clear answer under the non-standard
“standard” that the School District urges is reason enough to reject the District’s
position. Justice Brennan said it best 45 years ago: “Because First Amendment
freedoms need breathing space to survive, government may regulate in the area
only with narrow specificity.” NAACP v. Button, 371 U.S. 415, 433 (1963). There
is nothing narrow or specific about the open-ended discretion that the School
District seeks here.
8

A school could even make the circular argument that a reasonably
foreseeable risk of “substantial disruption” is itself a “sufficient nexus” justifying
punishment – even if the speech had no other “nexus” at all with the school, aside
from the fact that the speaker is a student.

-19-

To be clear, Appellants’ purpose and intent is to prevent disfavored
speech – speech critical of school officials that might be read at school and might,
if read, provoke discussion – from ever coming into being. The result will
necessarily be that substantial amounts of speech that would not be read during
school (and that, even if read, would not prompt disruption) will never be uttered.
If forced to live under Appellants’ standard, reasonable students will needlessly
censor themselves, recognizing that they are at the mercy of (a) whether audience
members choose to bring their writings onto campus and (b) whether the writings
will be discussed in a manner that school officials deem disruptive. Unless school
administrators are required to respect the “breathing space” that Justice Brennan
saw was so vital – unless they are required to work within a narrow and specific set
of parameters governing their power to punish student speech – then valid,
protected, non-disruptive speech will surely suffocate.
What is most striking about the Appellants’ position is how
unnecessary it is. Their argument suggests that, if this Court were to prohibit
punishment of off-campus speech, students could, with impunity, hurl as much
invective as they like at school administrators. Amicus PSBA goes so far as to
invoke some truly horrific behavior by students as somehow justifying punishment

-20-

of those students by school administrators.9 These arguments ignore two very
important considerations: first, civil and criminal remedies are generally available,
fully adequate, and preferable; second, the use of public power in lieu of those
remedies is an abuse of that power. Thus, for instance, while the Appellants
contend that Layshock’s speech was defamatory and was the result of
misappropriation of school property, they ignore that the appropriate means of
vetting such claims is through a civil lawsuit. Indeed, Principal Trosch has a
pending defamation suit against Layshock in which his concerns about any
reputational damage inflicted by the MySpace page can be fully redressed.
Principal Trosch should be left to pursue his private legal remedy; this Court
should not legitimize the use of public power to settle private scores.10

9

PSBA Amicus Brief at 23. Tellingly, the PSBA never mentions any
disruptions at school stemming from the events it describes. Moreover, it fails
utterly to explain why civil or criminal remedies are not available or are
insufficient to redress the wrongs it describes. Indeed, in at least one case cited by
the PSBA, criminal proceedings have been filed against a mother responsible for a
MySpace hoax that led a teenage student to commit suicide. Indictment in Internet
Suicide, The Washington Post, May 16, 2008 at D02, available at
http://www.washingtonpost.com/wpdyn/content/article/2008/05/15/AR2008051503918.html. Such serious matters are
best left to the proper authorities – not school officials.
10

Similarly, schools have ample disciplinary tools at their disposal to
discipline those actually responsible for the disruption, if they claim that students
are acting disruptively by viewing non-school-related websites on school time. If
students are using class time to talk about unrelated matters or to view personal
websites, and if such behavior is disruptive of teaching, then schools can discipline
(continued...)

-21-

V.

EVEN IF TINKER WERE TO APPLY TO LAYSHOCK’S SPEECH,
APPELLANTS STILL VIOLATED THE FIRST AMENDMENT
The district court correctly found that, even if it were proper to apply

an on-campus speech analysis to Layshock’s Web site, the First Amendment
would preclude punishment. The district court’s analysis and the Layshocks’ brief
thoroughly address why, if using the on-campus speech framework, Tinker would
provide the applicable legal standard,11 and why nothing that Justin Layshock did
in this case even comes close to the “substantial disruption” of school operations
that would legitimize censorship under Tinker. Amici the SPLC and the PCFA
adopt these rationales, and wish merely to reinforce and amplify several points.
________________________
(continued...)

those students without running afoul of the First Amendment. Indeed, Principal
Trosch testified that the school has a “technology meeting” at the beginning of the
school year in which students are instructed to refrain from accessing unauthorized
websites, and that, following the events at issue here, the school blocked access to
Myspace.com pages on school computers (Trosch Dep. at 102, 114). The School
thus would have had ample justification to punish those who might have – but, in
fact, did not – create a disruption in response to Layshock’s off-campus speech.
11

In a particularly tortured line of argument, PSBA attempts (PSBA Brf. at
19) to argue for application of the Morse v. Frederick standard, on the grounds that
Layshock’s profile “promotes illegal drug use and alcohol abuse[.]” The Court
should decline PSBA’s invitation to strain the limited holding of Morse beyond
recognition. The profile obviously was meant to ridicule its subject as a person
with undesirable qualities, including a proclivity to use alcohol and drugs. To the
extent that the profile can be read to carry any message at all, which is a stretch,
the profile does the opposite of glorifying alcohol or drug use. It would be radical
and dangerous to hold that student speech mentioning alcohol or drugs equates to
promoting alcohol or drugs.

-22-

The district court correctly made the factual finding that the MySpace
profile caused minimal, if any, disruption. Principal Trosch acknowledged (Trosch
Dep. at 105) that his first-hand knowledge about any disruptive impact of the
profile was limited to one teacher’s comment that “the teacher overheard a student
talking about knowing about the My-Space (sic) profiles.” Whatever “substantial
disruption” means, it cannot mean such a mild and harmless occurrence.12
Amici’s principal concern is not for speakers like Justin Layshock, but
for those engaging in more profound journalistic commentary that would be swept

12

Indeed, attempting to quash off-campus student speech that is offensive or
vulgar will not eliminate the impulses that drive students to engage in that speech
and will ultimately do more harm than good. As one commentator observed,
[g]iven the pervasiveness of the Internet and World Wide
Web, the problems encountered by administrators
[concerning off-campus student speech] are not likely to
disappear anytime soon. Indeed, it seems very likely that
more students will turn to the Web to express their
feelings. Dealing with these sites through suspensions
and expulsions ultimately accomplishes very little. The
better solution is counter speech and a healthy
recognition on the part of educators that sophomoric
humor and verbal attacks on teachers will not be
eliminated through suspensions and expulsions. The
third arm of justice – the school’s own internal discipline
system – must be reined in before First Amendment
rights are needlessly sacrificed.
Clay Calvert, “Off-Campus Speech, On-Campus Punishment: Censorship of the
Emerging Internet Underground,” 7 Boston Univ. J. of Sci. & Tech. L. 243, 286-87
(2001).

-23-

up in the net of censorship. Journalism, when practiced at its best, is meant to be
provocative; that is, to cause people to talk. If anecdotal evidence that students
talked during school hours about something they had read equated to “substantial
disruption” – the standard that the School District would have this Court adopt –
then even the best journalism (in fact, especially the best journalism) would be
subject to disciplinary action under Tinker.
Finally, having failed to adduce legitimate legal arguments justifying
the school’s overreaching, Amicus the PSBA attempts to fall back on generalized
policy rationales about the need for inculcating responsibility and discipline. In the
first place, this argument is uniquely ill-suited to the facts of Justin Layshock’s
case. Before the school could impose sanctions, Layshock had already attempted
voluntarily to pull down the offending profile, apologized sincerely to his
principal, and incurred the punitive wrath of his parents, who grounded him and
took away his computer privileges. It is simply untrue that Layshock needed to be
kicked out of school and consigned to “alternative” classes for delinquents in order
to learn his lesson.
More to the point, everything that the PSBA says about the necessity
for teaching responsibility could apply equally to speech having no connection
whatsoever to school. Indeed, the very examples on which the PSBA relies –
including the tragic Missouri case in which a parent impersonating a teenage boy

-24-

in online chats was blamed for driving a teen girl to suicide – are cases in which
the speech was purely personal and not at all school-related. The PSBA’s vision of
the public schools as general civility police has no principled stopping point, and it
offends basic principles of parental autonomy.
Court after court has correctly refused to allow school administrators
to usurp parental control over the discipline of children for functions outside of and
unsupervised by the school. See, e.g., Shanley v. Northeast Indep. Sch. Dist., 462
F.2d 960, 964 (5th Cir. 1972) (“It should have come as a shock to the parents of
five high school seniors ... that their elected school board had assumed suzerainty
over their children before and after school, off school grounds, and with regard to
their children’s rights expressing their thoughts. We trust that it will come as no
shock to the school board that their assumption of authority is an unconstitutional
usurpation of the First Amendment.”); Thomas, 607 F.2d at 1051 (concluding that
after-school activities are “the proper subjects of parental discipline” and that
school officials are not empowered to assume the role of surrogate parent).
The PSBA has the “civics lesson” of this case wrong, and the district
court got the lesson right. Young people do not learn civic responsibility by being
told to sit down, shut up, and not make waves. Young people must have the
leeway to participate in the dialogue of their community (a dialogue that
increasingly is taking place online) without fear that a step over the line will bring

-25-

expulsion and the stigma of being classified a “problem kid.” School
administrators must be counted on to keep a cool head and show some maturity –
and with a powerful government official like a school principal, that includes the
maturity to accept even sometimes-unfair criticism as part of the job. If the district
court is overturned, the civics lesson will be that government officials can abuse
their power to suppress any speech, taking place anywhere, that provokes so much
as a conversation in the schoolyard.

CONCLUSION
For all the reasons set forth above, Amici the Student Press Law
Center and the Pennsylvania Center for the First Amendment respectfully request
that the District Court’s judgment be affirmed.
Respectfully submitted,

/s Joanna Cline
Joanna J. Cline (Pa. Id. 83195)
PEPPER HAMILTON LLP
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103
[phone]
[e-mail]
Counsel for Amicus Curiae
The Student Press Law Center
June 3, 2008

-26-

CERTIFICATE OF SERVICE AND FILING
I hereby certify that on this 3rd day of June, 2008 an original and ten
copies of the foregoing Brief for Amici Curiae The Student Press Law Center and
the Pennsylvania Center for the First Amendment were filed with the Clerk’s
Office of the United States Court of Appeals for the Third Circuit, by hand
delivery. An electronic copy was also sent to [e-mail].
I further certify that on this 3rd day of June, 2008 two true and correct copies of
the foregoing Brief for Amici Curiae The Student Press Law Center and the
Pennsylvania Center for the First Amendment were served by overnight mail and
an electronic copy was served by electronic mail on each of the following:

Witold J. Walczak, Esq.
ACLU of Pennsylvania
313 Atwood Street
Pittsburgh, PA 15218

Anthony Sanchez, Esq.
Christina Lane, Esq.
Andrews & Price
1500 Ardmore Blvd., Suite 506
Pittsburgh, PA 15221-4468

Kim M. Watterson, Esq.
Richard T. Ting, Esq.
William J. Sheridan, Esq.
Reed Smith
435 Sixth Avenue
Pittsburgh, PA 15219-1886

/s Brian Berkley
BRIAN BERKLEY
Associate Counsel for Amicus Curiae
The Student Press Law Center

COMBINED CERTIFICATION
Bar Membership: Pursuant to L.A.R. 28.3(d), I hereby certify that
Joanna J. Cline, attorney for Amicus Curiae the Student Press Law Center, is a
member of the bar of the United States Court of Appeals for the Third Circuit.
Identical Briefs: Pursuant to L.A.R. 31.1(c), I hereby certify that the
text of the electronic and hard copy versions of this brief are identical.
Virus Check: Pursuant to L.A.R. 31.1(c), I hereby certify that a virus
check was performed on the electronic version of this brief using Symantac AntiVirus, version 10.1.1.5 and no viruses were found.
Word Count: Pursuant to F.R.A.P. 32(a)(7)(C), I hereby certify that
the foregoing brief was produced in Microsoft Word using a 14-point Times New
Roman proportionally spaced font. I further certify that this brief contains 5,242
words, excluding sections exempted under F.R.A.P. 32 (a)(7)(B)(iii). Accordingly,
this brief complies with the type-volume limitation of F.R.A.P. 32(a)(7)(B).

/s Brian Berkley
BRIAN BERKLEY
PEPPER HAMILTON LLP
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103
[phone]
[e-mail]
Associate Counsel for Amicus Curiae
The Student Press Law Center
June 3, 2008