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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 and , the 14-judge court delivered two 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.'"

Both Layshock and J.S. also held that off-campus speech is not transformed into school speech, subject to the Fraser standard, simply because some students access it on school computers, or because the principal requested that a hard copy of the website be brought into the school. According to the 8-6 majority in the J.S. rehearing:

[T]o apply the Fraser standard to justify the School District's punishment of J.S.'s speech would be to adopt a rule that allows school officials to punish any speech by a student that takes place anywhere, at any time, as long as it is about the school or a school official, is brought to the attention of a school official, and is deemed "offensive" by the prevailing authority. Under this standard, two students can be punished for using a vulgar remark to speak about their teacher at a private party, if another student overhears the remark, reports it to the school authorities, and the school authorities find the remark "offensive." There is no principled way to distinguish this hypothetical from the facts of the instant case.

Importantly, in both cases, the Third Circuit concluded that the speech at issue "could not reasonably have led school officials to forecast substantial disruption in school." In J.S., for example, the court held that the MySpace profile "was so outrageous that no one could have taken it seriously, and no one did." As a result, the Third Circuit did not need to decide whether online speech may be punished if school officials could reasonably conclude that the speech was likely to substantially disrupt to school activities. (Various concurrences and dissents in both opinions expressed differing views on this question. Some Third Circuit judges believed that online speech may be restricted if it "materially and substantially disrupt[s] the work and discipline of the school," while would hold that "the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large.") The majority in J.S. noted, however, that "school officials cannot prohibit student speech based upon the desire to avoid ‘discomfort and unpleasantness.'"

Although the Third Circuit did not determine whether off-campus, online speech that is reasonably considered substantially disruptive could be censored, Adam Goldstein, attorney-advocate at the , believes that the Third Circuit answered "the most important question" for free speech:

Is there a place where a student can go that's far enough away from school grounds to allow that student to speak freely online? Every single one of the 14 judges on that court said ‘yes.'"

While neither Layshock nor J.S. involve speech at the college level, both signify victories for college students' online speech. This is because the Third Circuit has noted, in prior cases, that college students must be afforded even greater protections than high schoolers under the First Amendment. At the absolute least, then, the speech rights enjoyed by high school and grade school students establish a bare minimum level of protection for college students.

Many of the rationales that permit administrators to control speech at the middle and high school levels do not apply to college students, most of whom are adults. Universities serve as "the marketplace of ideas," while middle and high schools are places where administrators can impart civic values and must maintain order. Further, because many college students live on campus, their home environment deserves adequate breathing room for free expression. According to the Third Circuit in McCauley v. University of the Virgin Islands, a university speech code decision from just last year, if the court gave "public university administrators the speech-prohibiting power afforded to public elementary and high school administrators," the free speech rights of students would be impermissibly constrained by university rules. College students are entitled to greater First Amendment protections, and colleges are places where free speech, even lewd and offensive speech, must flourish. Courts do significant damage when they import standards governing high school speech into the college context, and we have written extensively about how conflation of speech standards at the high school and college levels infantilizes college students and fundamentally undermines the role of universities in our society. Happily, the Third Circuit's decisions have accorded with the guidance of amicus briefs that we have filed in several cases emphasizing the distinction between high school and college students. (For more on the distinction between the speech rights granted to high school students and college students, see former FIREJackson Legal Fellow Kelly Sarabyn's scholarship.)

We at FIREhope that college administrators, even outside of the Third Circuit's jurisdiction of New Jersey, Pennsylvania, and Delaware, adhere to the Third Circuit's mandates and respect students' online speech rights. If a middle schooler cannot be suspended for a MySpace profile joking about the sexual predilections of her principal, surely college students should not be punished for using their own Facebook accounts to calmly discuss a college's response to a tornado, criticize a student government leader, joke about critics of Israel, or create a parody Halloween party.