February 07, 2010
Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles
By Eric Goldman
Now that I’m a middle-aged man, I don’t find fake online profiles funny at all. But if the Internet had been around when I was in my early teens, I probably would have found a salacious fake online profile of a school authority figure side-splittingly funny. Unfortunately for today’s teens, the toxic brew of easy access to MySpace plus an underdeveloped sense of humor plus anti-authority sentiments has led to an unhealthy number of fake MySpace profiles—far too many of which result in lengthy and expensive court cases. In practice, the “joke” ends up being on the taxpayers.
The cases I’ve been seeing follow a predictable pattern:
Step 1: young teen creates a silly fake MySpace profile of a school authority figure.
Step 2: word of the MySpace profile spreads among the teen’s peers, and they have immature laughs.
Step 3: targeted authority figure discovers the fake profile.
Step 4: authority figure overreacts and metes out unnecessarily harsh discipline. Sometimes, the authority figure also sues the teen/parents or brings in the cops.
Step 5: the disciplined student brings a lawsuit for the authority figure’s overreaction.
Step 6: the parties’ lawyers win, but everyone else—the plaintiffs, defendants, and taxpayers—loses.
My opinion is that the world would be a better place if immature fake online profiles weren't created. It’s clear that any regulatory efforts to keep young teens off MySpace hasn’t eliminated this problem, and it’s unrealistic to expect that kids won’t find ways to pull silly stunts like this. Instead, our best hope for a better future rests at Step 4, when the authority figure decides whether to laugh off the fake profile or go on a rampage. Maybe over time school authority figures will be less shocked by fake online profiles and will learn not to take it personally. In an ideal world, authority figures will figure out how to use these immature stunts as a valuable opportunity to teach about online information credibility and the harms of cyberbullying.
When they get to court, judges are struggling with fake online profile cases, as best evidenced by a pair of Third Circuit cases issued on the same day last week. Two different panels reached different conclusions about whether school discipline for an off-campus-created fake MySpace profile violated the student's First Amendment rights (Layshock says yes, J.S. says no in a 2-1 split opinion). Why the difference?
Surprisingly, the two opinions don’t reconcile their outcomes very well. The Layshock case doesn’t acknowledge the J.S. opinion. The J.S. case does acknowledge Layshock, but only in a footnote:
we find the two cases distinguishable. Unlike the instant case, the school district in Layshock did not argue on appeal that there was, under Tinker, a nexus between the student's speech and a substantial disruption of the school environment.… This nexus, under Tinker, is the basis of our holding in the instant case. Rather, the Layshock panel held that the school district failed to establish that a sufficient nexus existed between the student's creation and distribution of the profile and the school district so that the district was permitted to regulate the student's conduct…. That panel also held, under Frazer, that the student's speech could not be considered "on-campus" speech just because it was targeted at the Principal and other members of the school community and it was reasonably foreseeable that school district and Principal would learn about the MySpace profile.
Obviously each case is fact-specific, so the dichotomous conclusions about the on-campus effects might be explained by factual differences in the fake profiles. From my perspective, the differences seemed pretty small, especially because I ignored the more outrageous fact-like claims as typical adolescent hyperbole. Putting aside the profile contents, I’d argue that Layshock’s on-campus effects were greater because: (1) his was just one entry in a series of fake profiles, and (2) the MySpace profiles were accessible on campus, while in contrast the school successfully blocked on-campus MySpace access in the J.S. case. In any case, any on-campus effects may depend on a number of factors out of the student’s control, including how the principal (over)reacts.
In the end, I think the main distinction between the two cases is that the J.S. court indulged its moral condemnation of the student’s poor choices, while the Layshock court kept its outrage in check. Another possible explanation is that the principal's response in Layshock was outrageously punitive—Layshock was diverted into 3 hours/day of special classes for behaviorally disruptive students even though Layshock was a gifted student normally taking AP classes—and applied inconsistently because the students who created the other fake profiles weren’t disciplined at all. Finally, the cases reached the Third Circuit panels in different procedural postures (e.g., Layshock won in district court on the First Amendment issue while J.S. lost in district court), and the respective school districts adopted different litigation strategies that appeared to have different efficacies.
Because the two Third Circuit opinions reach fact-specific outcomes without clearly distinguishing between the two factual circumstances at issue, the Third Circuit’s dichotomous rulings create a lot of uncertainty that will lead to more frequent, longer-lasting and unproductive courts battles over student-created fake online profiles. As a result, these two cases would benefit from an en banc rehearing. Or perhaps the Third Circuit intentionally or unintentionally created a split (an unusual intra-circuit split) to tee this issue up for Supreme Court review.
Some topically related blog posts:
* Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page--Draker v. Schreiber
* Teenager Busted for Creating Fake "News" Story
* Social Networking Sites and the Law
* Moreno v. Hanford Sentinel, another possibly vindictive principal response to a MySpace posting
Posted by Eric at February 7, 2010 09:05 AM | Content Regulation
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