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.
Resources
National Suicide
www.stopbullying.gov
(a federal government site
with information; includes
connections to helplines)
The Trevor Project, www.thetrevorproject.org, 1-866-488-7386
(a 24/7 lifeline for LGBT youth)
www.thatsnotcool.com (a useful site for all ages regarding digital citizenship)