Recently, the U.S. Court of Appeals for the Fourth Circuit upheld the discipline of a student for creating a MySpace page targeting a fellow classmate with sexual, vulgar and offensive posts in Kowalski v. Berkeley County Schools. Kara Kowalski ("Kara") was a senior at Musselman High School ("MHS") when she created a MySpace post called "S.A.S.H." which Kara claimed stood for "Students Against Sluts Herpes" and which ridiculed one fellow MHS student in particular. After finding out about the website, MHS officials suspended Kara. Kara claimed that the school district violated her First Amendment right to freedom of speech because the speech did not occur on campus or during a school-related activity, but was strictly private out of school speech.
The Fourth Circuit rejected Kara's claim, finding that she "used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District's recognized authority to discipline speech which 'materially and substantially interefer[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the right of others.'" In its decision, the court addressed the realities of the far-reaching impact of the internet saying that her online posts "could reasonably be expected to reach the school or impact the school environment" even though the website was created off-campus.
This is the most recent case regarding student off-campus internet speech, and follows recent decisions by the Second and Third District: Doninger v. Neihoff (2d Cir. 2011)(discipline upheld for student who used vulgar speech to criticize school administration on her personal blog), J.S. v Blue Mountain Sch. Dist. (3d Cir. 2011)(school district violated student's free speech for disciplining student who created parody website of principal), and Layshock v. Hermitage Sch. Dist. (3d Cir. 2011)(same ruling on similar facts). A circuit split has emerged, creating the possibility that the U.S. Supreme Court may weigh in on this line of cases in the future.
Meghan Covert Russell
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