Can You Trash Your Teacher on Facebook?

When asked by ABCNews.com about the issue in light of the more recent rulings, he said, "It's pretty obvious that this issue is going to have to be resolved at the Supreme Court level. ... I think the Pennsylvania situation speaks for itself. There are a lot of conflicting opinions."

Some parents, however, think it's already clear that schools go too far when they punish speech originating off-campus.

"Facebook has nothing to do with the school. Kids have the right to hate a teacher," said Lee Anderson, a North Syracuse parent whose 12-year-old daughter was among those punished for joining the critical Facebook group.

He refused to let his daughter attend the detention she was assigned and said he wasn't alone.

ACLU: Schools Should Satisfy Same Standard as Police

"The school over-stepped its bounds in saying that my daughter didn't have a right to express her opinion," he said. "The school is not supposed to be raising my kid, they're supposed to be teaching my kid."

Witold "Vic" Walczak, legal director for the ACLU in Pennsylvania who represents both J.S. and Layshock, said that when the student speech occurs off school grounds, there is a higher bar for administrators.

"Our position is if schools want to regulate student speech outside of the school, they have to satisfy whatever standard the police would have to satisfy," Walczak said. "It's a very heavy burden."

Even so, he said, a school still has recourse -- it can call in parents and students and talk about how the speech may be offensive and disrespectful. If the students don't respond appropriately, he said, nine times out of 10, the parents will discipline the student appropriately.

Given the incongruity in the Third Circuit's decisions and the difficulty in discerning any guiding principle from them, he said the ACLU plans to ask that the court re-consider.

"We need clarity. We need to reconcile these two cases," he said.

Still, even given the conflicting decisions in Pennsylvania and Florida, Ryan Calo, a residential fellow at Stanford University's Center for Internet and Society, said the decisions are steps in the right direction and show that the courts are getting a better handle on speech rights on social networks.

Even though the rulings aren't consistent, he said they help clarify the factors judges use to arrive at their conclusions.

"The question becomes whether the speech is on or off campus, whether it's related to the school and whether it's substantially disruptive. In the absence of those three factors, it sets a dangerous precedent," he said. "These are difficult issues and I'm encouraged by the meaningful way in which the courts are engaging with the facts and the precedents."

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