Appeal from the United States District Court for the Western District of Pennsylvania (Civ. No. 06-cv-00116) District Judge: Hon. Terrence F. McVerry
The opinion of the court was delivered by: McKEE, Chief Judge.
Argued on December 10, 2008
Opinion Filed on February 4, 2010 Opinion Vacated and Petition for Rehearing En Banc
Granted on April 9, 2010 Rehearing En Banc Ordered for June 3, 2010
Argued En Banc on June 3, 2010
Before: McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, REENAWAY, JR. VANASKIE and ROTH, Circuit Judges.
We are asked to determine if a school district can punish a student for expressive conduct that originated outside of the schoolhouse, did not disturb the school environment and was not related to any school sponsored event. We hold that, under these circumstances, the First Amendment prohibits the school from reaching beyond the schoolyard to impose what might otherwise be appropriate discipline.
It all began when Justin Layshock used his grandmother=s computer to access a popular social networking internet web site where he created a fake internet Aprofile@ of his Hickory High School Principal, Eric Trosch. His parents filed this action under 42 U.S.C. ' 1983, after the School District punished Justin for that conduct. The suit alleges, inter alia, that the School District=s punishment transcended Justin=s First Amendment right of expression. The district court granted summary judgment in favor of Justin on his First Amendment claim. We originally affirmed the district court. See Layshock v. Hermitage School Dist., 593 F.3d 249 (3d Cir. 2010). Thereafter, we entered an order vacating that opinion and granting rehearing en banc. For the reasons that follow, we once again affirm the district court=s holding that the school district=s response to Justin=s conduct transcended the protection of free expression guaranteed by the First Amendment.
In December of 2005, Justin Layshock was a seventeen-year old senior at Hickory High School, which is part of the Hermitage School District in Hermitage, Pennsylvania. Sometime between December 10th and 14th, 2005, while Justin was at his grandmother=s house during non-school hours, he used her computer to create what he would later refer to as a Aparody profile@ of his Principal, Eric Trosch. The only school resource that was even arguably involved in creating the profile was a photograph of Trosch that Justin copied from the School District=s website. Justin copied that picture with a simple Acut and paste@ operation using the computer=s internet browser and mouse. Justin created the profile on AMySpace.@*fn1 MySpace is a popular social-networking website that Aallows its members to create online >profiles,= which are individual web pages on which members post photographs, videos, and information about their lives and interests.@ Doe v. MySpace, Inc., 474 F.Supp. 2d 843, 845 (W.D. Tex. 2007).*fn2
Justin created the profile by giving bogus answers to survey questions taken from various templates that were designed to assist in creating a profile. The survey included questions about favorite shoes, weaknesses, fears, one=s idea of a Aperfect pizza,@ bedtime, etc. All of Justin=s answers were based on a theme of Abig,@ because Trosch is apparently a large man. For example, Justin answered Atell me about yourself@ questions as follows:
Birthday: too drunk to remember
Are you a health freak: big steroid freak
In the past month have you smoked: big blunt*fn3
In the past month have you been on pills: big pills
In the past month have you gone Skinny Dipping: big lake, not big dick
In the past month have you Stolen Anything: big keg
Ever been drunk: big number of times
Ever been called a Tease: big whore
Ever been Beaten up: big fag
Ever Shoplifted: big bag of kmart
Number of Drugs I have taken: big
Under AInterests,@ Justin listed: ATransgender, Appreciators of Alcoholic Beverages.@ Justin also listed ASteroids International@ as a club Trosch belonged to.
Justin afforded access to the profile to other students in the School District by listing them as Afriends@ on the MySpace website, thus allowing them to view the profile. Not surprisingly, word of the profile Aspread like wildfire@ and soon reached most, if not all, of Hickory High=s student body.*fn4
During mid-December 2005, three other students also posted unflattering profiles of Trosch on MySpace. Each of those profiles was more vulgar and more offensive than Justin=s. Trosch first learned about one of the other profiles from his daughter, who was in eleventh grade. On Monday, December 12, 2005, Trosch told his Co-Principal, Chris Gill, and the District Superintendent, Karen Ionta, about this other profile and asked the Technology Director, Frank Gingras, to disable it. However, despite the administration=s best efforts, students found ways to access the profiles. Trosch discovered Justin=s profile on Thursday evening, December 15th, and a fourth profile on Sunday, December 18th.
Trosch believed all of the profiles were Adegrading,@ Ademeaning,@ Ademoralizing,@ and Ashocking.@ He was also concerned about his reputation and complained to the local police. Although he was not concerned for his safety, he was interested in pressing charges against those responsible for the bogus profiles, and he discussed whether the first profile he discovered might constitute harassment, defamation, or slander. However, no criminal charges were ever filed against Justin or any of the other student authors of profiles.
On December 15th, Justin used a computer in his Spanish classroom to access his MySpace profile of Trosch. He also showed it to other classmates, although he did not acknowledge his authorship. After viewing the profile, the students logged off of MySpace. Justin again attempted to access the profile from school on December 16th, purportedly to delete it. School district administrators were unaware of Justin=s in-school attempts to access MySpace until their investigation the following week. Teacher Craig Antush glimpsed the profile in his computer lab class and told the students who were congregating around a computer and giggling to shut it down.
The School District administrators were not able to totally block students from visiting the MySpace web page at school because Gingras, the Technology Coordinator, was on vacation on December 16th. However, the school was able to control students= computer access by limiting the students= use of computers to computer labs or the library where internet access could be supervised. School officials continued to limit computer use from December 16th until December 21st, which was the last day of school before Christmas recess. Computer programming classes were also cancelled.
According to the district court, the School District=s investigation revealed how many students had accessed MySpace before access to the site at school was disabled, but the school could not determine how many students actually accessed any of the Trosch profiles, or which ...