First Amendment Law & Social Media

More than 109 million visitors frequent MySpace, one of the world’s busiest social media sites. Most are teenagers and young adults who believe their freedom of expression has few boundaries.

Five years ago, Hickory High School (Pa.) senior Jayson Layshock created a stir when he created a MySpace profile of his school principal. The parody quickly went viral before coming to the attention of the principal himself.

Two years later, a strikingly similar incident struck Blue Mountain School District on the opposite side of the state. “J.S.,” an eighth-grade honor-roll student, created a fictitious MySpace profile of her school’s principal using unflattering and profanity-laced language.

The cases have a lot in common. Both Layshock and J.S. took the principals’ photograph from their schools’ official Web sites. Both created the MySpace profiles from private computers off school grounds. Both students were suspended for 10 days and, subsequently, fled lawsuits that argued their First Amendment rights were violated.

But that’s where the similarities end. This past summer, two separate panels of the Third Circuit Court of Appeals reached very different outcomes on the lawsuits, demonstrating just how unsettled First Amendment law is when social media is involved, says Lehigh University Professor of Education and Law Perry Zirkel.

In a 2-1 ruling, the circuit court ruled against J.S., concluding the potential effect of the malicious MySpace profile was substantial, especially given the Internet’s capacity to disseminate this damaging information rapidly to students and parents. Yet, the other panel ruled in favor of Layshock, arguing that schools cannot control students’ activities at home. 

Because of the conflict, all 14 members of the Third Circuit Court will revisit the decisions together. Their joint ruling will come soon.

“These cases are still a murky area in the law,” says Zirkel, who tackles the topic in his column in Phi Delta Kappan. “This shows that not only do the courts have difficulty establishing and applying criteria for student speech cases, but the Internet has also blurred the boundaries of of-campus and on-campus communications.

“The result, unfortunately, is that this area of the law continues to defy any predictable, legally defensible course,” he says.