Yesterday, the full court for the United States Court of Appeals for the Third Circuit issued two simultaneous opinions to resolve how much control grade schools and high schools may exercise over their students' off-campus, online speech. In Layshock v. Hermitage School District and J.S. v. Blue Mountain School District, the 14-judge court delivered two landmark victories for free speech, holding that school officials cannot "reach into a child's home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities." In the cases, two students had been disciplined for creating parody MySpace profiles mocking their respective principals. The Third Circuit held that schools cannot punish students' online speech simply because it is vulgar, lewd, or offensive. In addition to their impact in the grade school and high school settings, these decisions further solidify the robust free speech rights that must be afforded to college students engaging in online speech.

We previously blogged about Layshock and J.S. last year, when separate three-judge panels of the Third Circuit issued contrary decisions despite the very similar facts in the two cases. In Layshock, the Third Circuit had held that a then-senior in high school could not be suspended, placed in a special education class, and banned from extracurricular activities for a parody MySpace profile which described his principal as being a "big steroid freak" and belittled the size of the principal's penis, among other insults. In J.S., a different panel of the Third Circuit had held that a then-middle school honor student could be suspended, without violating the First Amendment, for her MySpace profile. J.S.'s profile parodied her principal as stating, "I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife [a guidance counselor at the school] who looks like a man."

The full Third Circuit convened en banc to resolve this conflicting in-circuit precedent. Yesterday, the court decided in both cases that schools may not punish online, off-campus speech to the same extent that they may when dealing with in-school speech. The court thus concluded that the Supreme Court decision in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), which held that a high school may suspend a student for "lewd, indecent, or offensive speech and conduct" when such behavior conflicts with "essential lessons of civil, mature conduct," is inapplicable to online speech created off campus. (In Fraser, a high school student (Fraser) was punished for a profane, innuendo-laced nominating speech delivered at a school assembly.) As the full Third Circuit pointed out, Fraser's holding that schools may censor "lewd, indecent, or offensive speech" applies only on school grounds or at school-sponsored activities. Indeed, the Third Circuit noted that in deciding Fraser, the Supreme Court observed that "[h]ad Fraser delivered the same speech in a public forum outside the school context, it would have been protected." In the Layshock rehearing, therefore, a unanimous full Third Circuit "reject[ed] out of hand any suggestion that schools can police students' out-of-school speech by patrolling ‘the public discourse.'"