Although the First Amendment protects the right of free speech, the Supreme Court of the United States has held that certain types of speech made by students on campus may be restricted in public schools. The Court has not addressed, however, student speech originating off campus on the internet, requiring the circuit courts to develop and apply methods of dealing with this type of speech, including the Second Circuit’s approach, commonly referred to as the Tinker test. In Layshock ex rel. Layshock v. Hermitage School District, the Court of Appeals for the Third Circuit considered whether the Hermitage School District could discipline a student, Justin Layshock, for creating an offensive profile on the social-networking website, MySpace, while off campus. The court held that the school district could not regulate Layshock’s speech because not one of the limited circumstances permitting regulation—as prescribed by the Supreme Court—was present.
In December 2005, Layshock, a Hickory High School student, created a profile that mocked his Principal, Eric Trosch, on MySpace. Layshock created this profile using his grandmother’s computer, at her house, during nonschool hours. Layshock granted access to fellow students, and, not surprisingly, news of the profile “spread like wildfire” spawning at least three copycat profiles. Layshock did access the profile he created twice at school, but school officials took action based on the belief that Layshock’s speech was entirely off campus.
On December 21, school officials learned that Layshock may have created one of the false profiles and decided to call Layshock and his mother to a meeting with the Superintendent. At that meeting, Layshock admitted to creating the profile and, without any prompting, walked to Principal Trosch’s office to apologize. School officials took no disciplinary action at the meeting; however, in January 2006, school officials held a disciplinary hearing concluding Layshock had violated the school’s discipline code and instituted various punishments, including a ten-day suspension and placement in an alternative education program.
On January 27, 2006, the Layshocks filed a three-count complaint alleging that the school district had violated Layshock’s First Amendment right to free speech. The district court granted summary judgment in favor of Layshock because the school district failed to demonstrate a sufficient nexus between the profile Layshock made and a substantial disruption at the school. A three judge panel from the Third Circuit affirmed on appeal; however, the Third Circuit vacated this decision and that of a factually similar, yet differently decided, case, J.S. ex rel Snyder v Blue Mountain School District, opting to rehear both en banc to resolve the apparent intracircuit split. After the rehearings, the court reversed J.S. and reaffirmed the earlier holding in Layshock, that the regulation of Layshock’s speech violated the First Amendment. . .