A federal judge has ruled that a Pennsylvania school can suspend two eighth-graders who created a fake MySpace profile of their principal depicting him as a pedophile and a sex addict, among other things. The September 11 ruling said the students' civil rights were not violated despite their actions taking place off school grounds because the language used on the profile was "lewd and vulgar," and because it was akin to speech that promoted illegal actions. Given the recent prevalence of fake MySpace profiles meant to taunt or harass others at school, this ruling could help decide future cases related to student speech online.
The story goes back to March 2007, when a profile representing the principal of Blue Mountain Middle School, James McGonigle, popped up on MySpace. The profile didn't explicitly identify McGonigle by name, but used a photo of him taken from the school district's website and labeled him as principal. Among McGonigle's alleged interests listed on MySpace were "f****** in my office" and "hitting on students and their parents." The profile also had a statement with the headline "HELLO CHILDREN," that read (in part), "yes. It's your oh so wonderful, hairy, expressionless, sex addict, fagass, put on this world with a small d*** PRINCIPAL I have come to myspace so I can pervert the minds of other principals to be just like me."
The two students who created the profile did so at home on one of their parents' computers, and according to court documents, a fair number of other students were already talking about the profile at school the next day. The students behind the profile, referred to as J.S. and K.L., claimed they set the profile to private that day, but McGonigle himself was still able to access it from a public computer days later. After speaking with J.S. and K.L. in his office along with a guidance counselor, they admitted to creating the profile. They were suspended for 10 days for violating the school discipline code, which prohibits making false accusations against school staff members, as well as copyright infringement for using his photo without permission. The students had the opportunity to appeal their discipline to the school board, but declined to do so.
It was at this point J.S. and her parents filed a lawsuit against the school district, the school, the superintendent, and McGonigle. The attorneys for J.S. argued that the school violated her First Amendment rights to free speech and that the Constitution prohibits the school district from disciplining a student's out-of-school conduct that does not cause a disruption of classes or school administration. As an example, they presented the US Supreme Court case of Tinker v. Des Moines from 1969, which ruled that students do not shed their constitutional rights to free speech when they enter the schoolhouse.
In this case, however, US District Judge James Munley ruled that Tinker v. Des Moines wasn't applicable. In the Tinker case, high school students engaged in silent protest of the Vietnam war by wearing black armbands at school, which did not interfere with schoolwork or with the rights of others. "In the instant case, the speech is not political; rather, it was vulgar and offensive statement [sic] ascribed to the school principal," wrote Munley in his 20-page opinion.
Munley cited another case, Bethel School Dist v. Fraser, where a high school student was suspended for using elaborate sexual metaphors during a school assembly to refer to another student; the suspended student filed a civil rights case but lost due to the vulgarity of the speech. "The profile contains words such as 'fucking,' 'bitch,' 'fagass,' 'dick,' 'tight ass,' and 'dick head,'" wrote Munley. "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. This speech is not the Tinker silent political protest. It is more akin to the lewd and vulgar speech addressed in Fraser."
One of the attorneys arguing the case for J.S, Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania, said in an interview she was disappointed with the outcome of the case, according to Law.com. She said that Munley failed to recognize that a school cannot restrict a student's speech "anywhere it is uttered" simply because it's vulgar and targets a school official. In the precedents cited by both sides, the students' conduct occurred in school, not at home behind a computer screen. Munley wrote in his opinion, however, that the intended audience was clearly other students at the school and that the profile was being discussed there, which helped bridge the case from being an off-campus matter to an on-campus issue.
Roper said that an appeal was still up in the air, but this issue isn't likely to go away anytime soon, regardless of whether J.S. and her parents choose to appeal. The combination of social networking sites, disliked school administrators, and perceived anonymity may be too tempting for some disgruntled students to resist, but this case demonstrates that there are limits to what students can say online.
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