One afternoon in December 2005, at his grandmother’s house outside Pittsburgh, seventeen-year-old Justin Layshock connected to the social networking site MySpace.com and set in motion a series of events that spawned two lawsuits and raised serious questions about teenagers’ First Amendment rights.
MySpace, like other social networking sites, allows users to create online profiles where they can list personal information, post photographs, and link to the profiles of other site members they designate “friends.” The profile Layshock created that afternoon, however, was not in his own name, but that of his principal at Hickory High School, Eric Trosch.
Using the profile template MySpace offers new members, Layshock copied and pasted a photo of the principal from the school’s website. He then turned a series of standard questions designed to elicit personal information into an extended fat joke, answering all of the queries with the word “big,” a reference to Trosch’s girth. For example, in response to a question about thoughts upon waking up, Layshock wrote “too . . . damn . . . big.” “Big keg behind my desk” is the response to a question about alcohol use, while “big fag” is the answer to “ever been beaten up?” The profile also referred to the principal as a “big steroid freak,” “big n beer gutted,” a “big whore,” and “too drunk to remember” his last birthday.
Layshock spread the word of his prank by linking the fake profile to those of other students at Hermitage High School. His profile was not the principal’s only MySpace presence; there were three other student-authored profiles purporting to represent Trosch on the social networking site. After Trosch learned about the profiles, the school technology teacher worked with the social networking site to take down the profiles and blocked access to the website on school grounds.
When the principal discovered Layshock was behind one of the profiles, he contacted Layshock’s parents and warned them there would be disciplinary action. In addition to a ten-day suspension, Layshock was removed from his advanced placement classes and told he would finish his senior year in the school’s remedial Alternative Education Program. He was also removed from his position as a middle school French tutor and barred from attending his high school graduation.
After the principal refused to reduce the punishment, Layshock and his parents sued the school district in federal court. They argued that the discipline violated the seventeen-year-old’s free-speech rights under the First Amendment, and that the school district did not have the authority to police activities conducted in a private home. Trosch, meanwhile, filed a libel lawsuit in state court against Layshock and the three other students who created the rival fake profiles. He alleged the MySpace postings damaged his reputation and limited his earning potential. Layshock’s attorneys argued the profile was a parody never intended to be taken seriously and, therefore, was not libelous. In July 2007, the federal district court judge ruled in the Layshocks’ favor, finding the school district’s disciplinary response to the social networking site posting unconstitutional. The decision was appealed to the Third Circuit, which heard oral arguments in December 2008. Trosch’s defamation action against the students is still pending.
Similar conflicts over material students posted online have occurred across the country, from San Antonio, Texas to New Haven, Connecticut, since the social networking craze swept through high schools in 2005 and 2006. Both types of lawsuits arising from students’ social networking activities– defamation claims and student speech lawsuits–force state and federal courts to confront new and unanswered questions about the First Amendment in an Internet setting.
Because of the limitations posed by the First Amendment, the traditional remedy for reputation-based injuries in the United States is not state punishment, but private defamation lawsuits. Courts today still consider libel claims according to the framework set out by the U.S. Supreme Court in the 1960s and 1970s, despite the Internet revolution that gives ordinary citizens access to mass media tools that were once wielded only by professional journalists. Perhaps because most defamation claims used to be against reporters, the Supreme Court’s precedents account for diversity among libel plaintiffs, but not defendants. Yet the popularity of social networking sites among teenagers has brought with it a spike in the number of libel lawsuits naming minors as defendants, something defamation law has never seen before.
Although the Supreme Court has never considered a libel case against a teenager, it has spoken strongly about how the First Amendment applies to minors in other settings. The Court has repeatedly emphasized, most recently in Morse v. Frederick, decided in June 2007, that high school students do not have the same free speech rights as adults. School administrators may punish students for activities, on or off school grounds, that cause a material and substantial disruption to the educational environment, or any other speech that the “public might reasonably perceive to bear the imprimatur of the school.” Lower courts are divided, however, as to whether this authority includes the right to discipline teens for material they post on social networking sites from their home computers.
Therefore, much like Layshock, students across the country may face unprecedented consequences for their online speech both in court and in the classroom. Both the lawsuits and the school discipline may have far-reaching effects on both minors and their parents, creating exactly the kind of “chilling effect” on free speech the Supreme Court has sought to avoid throughout its First Amendment jurisprudence. These issues are particularly troublesome because authority figures seeking to police social networking sites may be fundamentally misinterpreting what they read there. danah boyd, a communications scholar who specializes in studying social networking sites, argues that teenagers speak in an online parlance that adults simply do not understand, and uses the Layshock case as a key example of the consequences of the communication divide.
This Comment seeks to alert courts, educators, and policymakers to the First Amendment concerns raised by the dual punishments minors may receive under current precedent and emphasizes the need to develop a framework that separates one student’s silly online prank from another’s damaging reputation-based injury. Courts should recognize that school administrators, with the Supreme Court’s blessing, are filling the speech regulation role traditionally played by judges. They should therefore act now to reduce the burden of libel litigation liability on these students, lest the chilling effect of two punishments for one speech act deter a generation that embraced the “marketplace of ideas” enshrined by the First Amendment earlier than any other.
Part II.A of this Comment explains the functions of social networking sites and their immense popularity among high school students. Parts II.B and II.B.1 will provide an overview of defamation law and Supreme Court precedent on the subject, while Part II.B.2 examines the application of libel law to the Internet and proposals for reform. Part II.B.2.a, notably, discusses some of the defamation claims filed against minors based on their social networking activities. Part II.C.1 outlines Supreme Court precedent in the area of student speech, and Part II.C.2 reviews lower courts’ efforts to apply the Supreme Court’s rulings to students’ speech online.
Part III of this Comment discusses the outmoded state of libel law on the Internet and the need for policymakers to provide a more thorough overhaul than the band-aid that § 230 of the Communications Decency Act provides. It further argues that courts must step in now to aid teenagers embroiled in student speech battles and libel litigation as a result of their social networking activities online. This Comment thus offers a modest proposal for court-based defamation reform while awaiting legislative action: adopting the approach used by courts in other areas of tort law and holding high school students to the standard of care of other minors, rather than adults, and importing the requirement for economic harm used in slander cases to ensure the statements posted online caused real injury to the plaintiff.