Judge Upholds Student's Suspension for Fake MySpace Page

[ChamberedRound]

We really have to get rid of some of the judges here in PA, and I think a case such as the one described below is ripe for appeal.

I don't like what this kid did, and if I were his parent I'd sure as hell punish him. But, for a school district to use their authority to suspend a child for something that was done outside of school is outside of their authority and an abuse of power.

IMHO, it would be more reasonable for the principal to address the situation by talking with the parents outside of school, and if an agreement cannot be reached, then sue the children or their parents on charges of slander or libel.

Article follows:
http://www.law.com/jsp/article.jsp?id=1202424549808

Judge Upholds Student's Suspension for Fake MySpace Page

Shannon P. Duffy
The Legal Intelligencer
September 16, 2008

An eighth-grade student who was suspended for 10 days after she created a fake page on MySpace.com that depicted her principal as a pedophile and a sex addict has lost her civil rights suit now that a federal judge has ruled that the discipline was proper and didn't violate her free speech rights.

"A school can validly restrict speech that is vulgar and lewd and also it can restrict speech that promotes unlawful behavior," U.S. District Judge James M. Munley wrote in his 20-page opinion in J.S. v. Blue Mountain School District.

In the suit, attorneys Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania and Mary E. Kohart and Meredith W. Nissen of Drinker Biddle & Reath argued that the suspension was unconstitutional because the speech took place outside of school and because it violated the parental rights of the student's parents to determine how best to raise, nurture, discipline and educate their child.

According to court papers, J.S. and another student, identified as K.L., posted a profile on MySpace in March 2007 that showed a photo of principal James S. McGonigle they had taken from the district's Web site.

The profile did not use McGonigle's name, but identified the person pictured as a "principal," and described him as a 40-year-old married, bisexual man whose interests included "being a tight ass," "fucking in my office" and "hitting on students and their parents," according to Munley's opinion.

Although the two students created the profile at J.S.'s home, it was discussed at school and another student gave a copy to McGonigle. Both students were suspended for 10 days, but only J.S. and her parents filed suit.

In court papers, the plaintiffs' team argued that the suspension ran afoul of the U.S. Supreme Court's historic 1969 decision in Tinker v. Des Moines, which held that student speech may not be punished unless it caused a "substantial and material disruption at the school."

Munley disagreed, finding that while Tinker is the leading case on the free speech rights of students, its standard "is not a good fit for every school speech situation."

The U.S. Supreme Court has decided three school free speech cases since Tinker, Munley found, and has never applied the Tinker test, instead announcing new tests in each case.

In Tinker, the justices famously held that students and teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" and prohibited suspensions of students for wearing black armbands to protest the Vietnam War.

But Munley found the more appropriate Supreme Court decision to apply was the 1986 decision in Bethel School District v. Fraser, in which the justices upheld a suspension imposed on a student who used "an elaborate, graphic, and explicit sexual metaphor" during a speech at a school assembly.

In Fraser, Munley said, the justices held that "it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse," and that limits on sexually explicit, indecent or lewd speech can be appropriate where the audience includes children.

In its most recent school free speech case, the 2007 decision in Morse v. Frederick, Munley found that the justices upheld a suspension of a student who had unfurled a banner that read "BONG HiTS 4JESUS" during a school-sponsored trip to view the Olympic torch relay.

The Morse court held that school officials may restrict student speech at a school event when that speech is "reasonably viewed as promoting illegal drug use."

Reading all the cases together, Munley concluded the Tinker test was the wrong test to apply because the vulgar speech posted on MySpace was not political, and that Fraser and Morse offered stronger insights by addressing restrictions on speech that is vulgar and lewd and promotes illegal behavior.

"There can be no doubt that the speech used is vulgar and lewd," Munley wrote, noting that the fake profile contained words such as "fucking," "bitch," "fagass," "dick," "tight ass" and "dick head."

"The speech does not make any type of political statement. It is merely an attack on the school's principal. It makes him out to be a pedophile and sex addict," Munley wrote.

"This speech is not the Tinker silent political protest. It is more akin to the lewd and vulgar speech addressed in Fraser. It is also akin to the speech that promoted illegal actions in the Morse case. The speech at issue here could have been the basis for criminal charges against J.S.," Munley wrote.

As a result, Munley found that the school did not violate J.S.'s rights in punishing her speech "even though it arguably did not cause a substantial disruption of the school."

OFF-CAMPUS SPEECH

Rejecting the plaintiffs' argument that students may never be punished for speech that occurs off campus, Munley said the evidence showed "a connection between the off-campus action and on-campus effect."

The MySpace site, Munley said, focused on the principal, and its intended audience was students at the school. A paper copy of the site was brought into school, and the site was discussed in school, he noted, and the picture on the profile was appropriated from the school district's Web site.

Munley also noted that "J.S. lied in school to the principal about the creation of the imposter profile."

Roper, in an interview, said she was disappointed by the ruling and that Munley erred by failing to recognize that school officials cannot restrict the speech of students "anywhere it is uttered" merely because it is vulgar and discusses school officials.

The profile was created in the student's home, Roper said, and the paper copy of it from the Web site was brought to school only after the principal asked another student to get it for him.

Roper said no decision has yet been made about whether to file an appeal.

The school district was represented by attorneys Ellis H. Katz and Jonathan P. Riba of Sweet Stevens Tucker & Katz in New Britain, Pa.

[billamj]

The only problem is that U.S. District Judge James M. Munley was appointed for life by one of the presidents and we can do absolutely freaking nothing about it. That is one of my problems with the federal judiciary.

[ChamberedRound]

Originally Posted by billamj

The only problem is that U.S. District Judge James M. Munley was appointed for life by one of the presidents and we can do absolutely freaking nothing about it. That is one of my problems with the federal judiciary.

I guess the only thing one can hope for in this situation is for an appeal to be heard...

[-JD-]

Mr. Round, I agree with you that the abrogation of speech and self-defense rights of students in schools is growing and abhorrent.

However, from what I read here, I have to agree with the ruling. This was not political nor even "creative/expressive" speech. The foul language is irrelevant. This was an attack on a school official - plain and simple. Had it been a listing of grievances, a call for replacement, etc. - Yes. Protected.

The student's vitriol seems to stem from their in school contact and the punishment was handled within the bounds of the school "judicial" system. The fact that the "attack" occurred outside the bounds of the school does not negate the former. If the claims that the student made could be substantiated and were ignored, or the sentence was "unusual" then that would also be grounds for examination.

Let me draw a couple of admittedly imperfect parallels.

If the parties were a CO and subordinate soldier and the soldier takes an internet poke at the CO while off duty & base for grinding on him/her on duty, should it be handled under the military justice system - a few days in the brig maybe?

If it were an employer/employee would it be unreasonable for the company to suspend the employee without pay?

You can gripe to your buddies about you boss at the bar and get away with it. You can't put a billboard outside your company gate plastered with vitriolic lies and not expect direct consequences from the company. If they didn't respond they would retain no authority.

[Elmar]

If the speech was made outside of school it is in no way within the powers of that school to punish for that speech regardless if the school or the employees thereof are mentioned in said speech.

End of story. Any judge ruling on this needs to be reminded of the limits of scope. If the principal feels attacked he can go through existing civil courts to settle the matter - it is not a matter for the school.

[GunLawyer001]

There's an old lawyer joke, what do you call a lawyer with an IQ of 70? "Your honor."

Judges often get it wrong, failing to grasp subtleties and even failing to understand the essential point of a case. That's why so many USSC decisions are 5-4, because about half of the justices have short circuits in their brains. Ginsburg in particular is capable of saying things that would make my dog cock her head sideways in puzzlement, as when she looked to Europe to determine what is "reasonable" to Americans.

In this case, it sounds like this judge is one of those who fails to understand the role of limited government and delineated powers. He glossed over the difference between a school punishing in-school speech at a school assembly, and a school acting as local governor, regulating all acts of children who happen to attend that school. Even the legislature could not enact a law that punishes criticism of the principal, but the principal thinks that he can do so?

Judges have to realize that when the people no longer trust the courts, then the people will take matters into their own hands. That's why fathers of raped children sometimes murder the rapist, because the system doesn't produce anything like justice. The solution to absurd rulings isn't to disarm all citizens as they enter the courthouses (ever wonder why they didn't feel the need to do that in the past?), the solution is to avoid issuing absurd rulings.

[knight0334]

Maybe I'm a little dense this monday, but did the kid make or use the Myspace page while at school?

If the kid did it all from home or away from school - does that mean the school can expel the kid for touching a firearm/gun while target shooting, hunting, and self-defense because of the "zero-tolerance" program they all have now?

Thats like being 18, going to Canada and getting legally smashed, then coming back and getting into legal/civil trouble here because of it.

[Elmar]

One of the most important reasons to fight for a respect for the Rule of Law from our politicians and appointed individuals is because of once a certain threshold of disrespect for the Rule of Law is reached there is no law to speak of.

[GunLawyer001]

Originally Posted by -JD-

Mr. Round, I agree with you that the abrogation of speech and self-defense rights of students in schools is growing and abhorrent.

However, from what I read here, I have to agree with the ruling. This was not political nor even "creative/expressive" speech. The foul language is irrelevant. This was an attack on a school official - plain and simple. Had it been a listing of grievances, a call for replacement, etc. - Yes. Protected.

The student's vitriol seems to stem from their in school contact and the punishment was handled within the bounds of the school "judicial" system. The fact that the "attack" occurred outside the bounds of the school does not negate the former. If the claims that the student made could be substantiated and were ignored, or the sentence was "unusual" then that would also be grounds for examination.

Let me draw a couple of admittedly imperfect parallels.

If the parties were a CO and subordinate soldier and the soldier takes an internet poke at the CO while off duty & base for grinding on him/her on duty, should it be handled under the military justice system - a few days in the brig maybe?

If it were an employer/employee would it be unreasonable for the company to suspend the employee without pay?

You can gripe to your buddies about you boss at the bar and get away with it. You can't put a billboard outside your company gate plastered with vitriolic lies and not expect direct consequences from the company. If they didn't respond they would retain no authority.

Well, no.

Children are not governed under the UCMJ, so that parallel is inappropriate. Neither is your employer a government actor, constrained to act within the Constitution, so that analogy is wrong, too. Schools are governmental agencies, children are compelled by law to attend (unless home schooled), so the rules are not the same as for enlistees or at-will employees.

Would the school principal have been within his rights to suspend the student for exactly the same unsubstantiated attack on Sarah Palin? On President Bush? On the head of the Sewer Authority? Do students have free speech on all matters except regarding the principal?

Can PennDOT suspend your driver's license if your MySpace page attacks the head of PennDOT? What's the difference?

[-JD-]

Originally Posted by GunLawyer001

...
In this case, it sounds like this judge is one of those who fails to understand the role of limited government and delineated powers. He glossed over the difference between a school punishing in-school speech at a school assembly, and a school acting as local governor, regulating all acts of children who happen to attend that school. Even the legislature could not enact a law that punishes criticism of the principal, but the principal thinks that he can do so?
...

Bold Mine.

...
According to court papers, J.S. and another student, identified as K.L., posted a profile on MySpace in March 2007 that showed a photo of principal James S. McGonigle they had taken from the district's Web site.

The profile did not use McGonigle's name, but identified the person pictured as a "principal," and described him as a 40-year-old married, bisexual man whose interests included "being a tight ass," "fucking in my office" and "hitting on students and their parents," according to Munley's opinion.
...

I'm sorry that is not legitimate "criticism" unless it is justifiably "true."