Aug 24
10:25 AM

Student Cyber-speech: An update on last spring’s McLennon Moot Court topic

Over the summer, there was a flurry of activity on the topic of last spring's Paul A. McLennon, Sr. Honors Moot Court Competition. For those of you who spent many, many hours last semester preparing your briefs and oral arguments (congrats to winner Craig TenBroeck and all the competitors), you need no reminder. But for the rest of you, here's a brief synopsis of the competition topic:

A high school took disciplinary action against a student for posting a link on his blog to a song he'd written containing violent and offensive lyrics. The song referred to a school administrator by name and to a fellow student by the initial "M." The disciplined student posted the link using his home computer. There were two primary issues: (1) whether the school had authority over the student's off-campus cyber-speech; and (2) if the school did have such authority, whether the school's disciplinary action was proper under the First Amendment.

On July 25, 2011,the student in Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), one of the cases cited by Moot Court competitors, petitioned the U.S. Supreme Court for a writ of certiorari. Read a summary of the issues before the court here and here.
Also, a number of appellate cases concerning school discipline over a student’s off-campus, online speech were handed down over the summer. Two 3rd Circuit cases favored students:

J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 08-4138 (3rd Cir. Jun. 13, 2011)
Layshock ex rel. Layshock v. Hermitage Sch. Dist., No. 07-4465 (3d Cir. Jun. 13, 2011).

And cases from the 4th and 8th Circuits favored school districts:

Kowalski v. Berkeley Co. Sch., No. 10-1098 (4th Cir. Jul. 27, 2011)
D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, No. 10-1428, No. 10-1579 (8th Cir. Aug. 1, 2011)

Here's some of the coverage of these cases around the blawgosphere:
J.S. and Layshock: LawProfBlog & SPLC
D.J.M: EdWeek & Fire
Kowalski: EdWeek & WSJ Blog

Here are a couple of other recent interesting blog posts and articles on the topic:
Ed. Law Rep. article & Justia blog post  [JML]

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