Arizona Attorney - March 2013

THOMAS A. JACOBS served as a judge pro tem/commissioner on the Maricopa County Superior Court for 23 years. After retiring in 2008, he continues to write for attorneys and judges (Thomson-Reuters/West) and for teenagers and parents (Free Spirit Publishing). He founded AsktheJudge.info, a teen-law site for and about teens and the laws that affect them.

“big hard ass,” a “big steroid freak,” and a “big whore” in addition to other juvenile comments. Layshock received a 10-day suspension for being disrespectful, profane, disruptive and for using a school photo without permission. He also was prohibited from attending his graduation ceremony. He and his parents filed a lawsuit claiming his speech was protected—that it was not lewd or obscene (Fraser) and didn’t create any disruption at school. The lower court agreed with Layshock, ruling that school officials are not censors of the World Wide Web. 12

The following year, eighth-grade student Jill Snyder did much the same thing but at a different school in Pennsylvania. She created a lewd parody of her principal on her home computer and made inappropriate comments about his sex life. For example, Jill listed his email address as myspace.com/kidsrockmybed. She was suspended for 10 days and lost her appeal to the school board. She took the matter to court and lost with a decision that upheld the school’s discipline due to the elaborate, graphic and sexual content of her postings. 13

The school district in Layshock’s case disagreed with the court’s ruling and appealed to the Third Circuit Court of Appeals. Snyder also pursued her loss up the appellate ladder. At first, different panels on the Third Circuit came down with opposing decisions. They ruled against the school district in Layshock’s case and upheld the discipline imposed in Snyder’s case. Recognizing the problem this would cause in future cases, both decisions were vacated and re-argued before the full court. In 2011, rulings were issued on the same day: Layshock’s disposition remained the same, and the court reversed itself in Snyder’s case, finding her suspension a violation of her First Amendment right to free speech. 14 The cases were combined for purposes of seeking review by the Supreme Court, which denied cert in January 2012.15

On the other hand, 15-year-old Aaron Wisniewski used his parents’ computer to create an InstantMessage icon. It depicted a hand-drawn gun pointed at a person’s head. Underneath was written “Kill Mr. VanderMolen,” Aaron’s English teacher.

There is a fine line
between protected
speech and that
which is subject to
disciplinary measures.

the targeted student disrupted the school environment. 17

One final case where certiorari was
sought involved a 17-year-old high school
junior in Connecticut. In 2007, Avery
Wisniewski was suspended for five days,
which, based on the Tinker test, was
upheld by a court because his creation was
found to be disruptive and presented a
foreseeable risk of harm. Wisniewski’s
petition for certiorari was denied. 16

Court Should Re-Examine Student Free Speech In balancing the rights of students with the school’s responsibility to provide a safe learning environment, the court needs to weigh the concepts of true/actual threats, free expression and material and substantial disruption (Tinker) as applied to student speech in the digital world. Although the Supreme Court declined in Hazelwood to micro-manage school districts, it is time for the growing demographic of digital citizens to understand the limits of the First Amendment’s freedom of speech.