good morning may please the court my name is anthony sanchez and it is like pleasure and great responsibility to be representing the armitage school district first i would ask the court if i may reserve ten minutes for a bottle thank you says you know is a very important case of our society to the great pillars i think the american society are built on this our constitution how we honored her put our constitution in education itself education out on the son of a mexican immigrant i'm here today from a father that didn't graduate high school parents didn't graduate high school it's because the educational opportunities have been provided so it's very dear to me there are things up  pushing to be the legal question there's a practical question that's going to be answered here as well and that question is can a student do and say scandalous things about a school district administrator or principal and how does that affect the administration of the school district and how school districts able to function in a community reason i asked that and the reason i say that is that is  speech consequence on campus speech or off campus beach is outmoded it's outdated given the internet if we take a more traditional approach a student can rock a highway put up a profile such as the profile of  principal try sheer on the white students use it one teacher sees it it gets turned down and then what happens the student's discipline no question that the disciplines appropriate the rocks across the street gets on  call from the school during lunch sits at a park bench pulls out his netbook sends that profile to every student in the school district every administrator in the school district and the school district cannot discipline the internet's changed the nature of the game i believe that the approach of the spouse by the pennsylvania supreme court in j s versus buffalo area school district balances the concerns of the united states supreme court the tanker the frazier and electronic communication i think j s the pennsylvania supreme court said the advent of the internet has complicated analysis of restrictions on speech i believe that's true yes court does in pennsylvania supreme court is two fold and i think it's very important first the jury u s court looks and says before we let the tinker and frazier we're going to decide whether the speech constitutes on campus for off campus speech that's a little bit of a different analysis that given the internet but what the court does is it rocks and it says is this speech that's to record the school community about the school community has it been accessed that school that's the test then the court says then we go to tanker frazier because tanker in its essence went to political speech armband silent protest in the school frasier went to obscene speech and the like interestingly i think that if one book's two more spur says frederick the united states supreme court does very much the same thing at the beginning of morse versus frederick and that's the  cases we'll call it in that case one of the first things the court does is the court rejects an argument that this is not a quote school speech case in turn so the court says th go on to the first amendment analysis if one reads the ninth circuit's court of appeal decision and conjunction with the united states supreme court decision in morse first is frederick the same that the court also is unbeknownst to the student she is sitting in front of the school principal and says you know my school principal mr x is a real douche bag is real son of a bitch the school district here is that the school principal here is that you know this is undermining my authority pennsylvania looked at the decide if there was sufficient nexus as the constitute on campus behavior was is the language directed towards an administrator is it about an administrator or a principal or teacher ok this i knows his principal is sitting behind him and wants to get him going the student had a run in with a principal a few weeks before once he had back at him so he says he whispers in one of those whispers that is loud enough for the person who's not supposed to hear it to hear it since it's directed to the principal why is direction he still are in our first amendment cases don't they really look at what the purportedly offending speech does in terms of  by what just there may have been overall but why isn't the the cause and effect i mean that's what taker says is disruption or invading the rights of others in other words it's an interference and if there isn't interference we're going to let people speak i think that's an interesting question your honor look at the early cases from the forty's from the supreme court like japan and i don't know if this is even protected speech we have cases in the forty's anymore as you yourself say certain things have changed they certainly say things that aren't nice i agree i agree but i also think with regard to tinker type argument there wasn't a principle argument and there's a waiver argument involved here i do believe that this is also a fen ski resort this and gets injured is anyway independent of anything with school and he becomes injured at the sky at the at the school you watch is a school district's responsibility i don't think so because he was not under the care of the school district and that's exactly the same fact within that test i think you should look at more some you can see that i could be at home in my home and i could create a mice and one of my space profile lets say i just created actual physical profile i actually drop something that looks like that and i put it on my wall next to my post is a rock stars or or sports stars and another student comes to my house and sees it and they think gee this is really the raga korea bought about principle trash and goes back and tells the school district you know i saw this should influence how the words consider school speech and i have to admit that after reading and hearing all you've had to say on that point i'm still confused as to just how you believe the onset and two liberation of the internet and internet activity to somehow affect our first amendment analysis year for example how is the legal analysis any different given the pr friended people he said please not friend is a oh i hate now you're right and so what he did though so he added other students as friends and what that means is those students immediately  we need to further burdens we have the supreme court's decision in roe vs sandy eggo in employment case with the first amendment where the court looks at it that way as a matter of fact it's when the police officer creates these these pornographic videos and puts them online and a generic police officer uniform and and the the united states supreme court felt that the employment finding was appropriate because this  know as a principal we see that poster one usually goes back and forth to school so what's the difference whether it's the bedroom window through which the student knows the principal will see it whether it's an internet and chances are that the prince was much less likely to see it on the internet that walks past the window every morning or over here is an intended was for a ball game but i think by where they use the internet there's a much greater possibility that the school community as a whole and more people in the school community will see it and things on the gun the internet last know certainly the district court said that you never attempted to justify your action based on a fear of future disruption is that correct is that statement correct i don't believe that statement is correct there was there was a future disruption here under the facts of this case under the facts of lay shock amid the facts of race shock we had a situation it was a unique situation where there were there were much more we don't want to hear about the actual disruption where's the fear of future disruption and let me cut right to the chase the school was closed for the christmas holidays justin had been suspended and the site had been closed well if it happened before the vacate before the vacation your honor and the story actual disruption right so there was really no legitimate fear of future disruption given what i just articulated the district court also said that you did not establish a city sufficient nexus between johnston speech and substantial disruption actual disruption of the school environment there were four profiles here  mayor and you had to show that just didn't profile cause a substantial disruption and then there's very little evidence of that in the district courts of so so you really i wonder whether in this fear of potential disruption it was the fact of the profile not in terms of the subsea subsequent this ruction because this who is close it has been pointed out but the fact of the profile itself that's what was in the letter and that's what was argued it or argument disruption i mean aren't you are you arguing thinker at the same time i'm not arguing for once the court decided once the panel made this decision and decided the tanker was applicable and not frasier the school district applied the law correctly the district's reconsideration petition essentially restates the arguments from its brief and contends that the panel simply got it wrong as such they have failed to provide a sound legal reason to reach a contrary hermitage also argued that the panel's decision conflicts with the j s panel but on the issue of potential conflict whether the school district has met its burden under tank or hermitage has waived the argument by not raising initially in this court indeed as was just pointed out hermitage has never raised the precise arguments raised in j s namely was the disruption foreseeable as judgment very wrote defendants have never attempted to justify their action based on a fear of future disruption the entire argument was justified based on actual disruption which there's very little love in the record district concedes as it must in light of morse that frazier cannot be applied to off campus speech it argues therefore that the speech should be treated simply as on campus speech because justin copied trashes website photo from the internet his speech was aimed at or about the school and he allegedly access the web site in school the panel rejected all three arguments and there is no good reason to reach a different result although we have invited the court to provide guidance by articulating the proper analytical framework for off campus speech cases the panel recognizes that quote it need not now define the price precise parameters of when the arm of authority can reach beyond the schoolhouse gate and quote because tinker was not met and no court has upheld punishment of off campus speech without a finding of substantial a material disruption nothing has changed wherefor we would ask this court to affirm the decisions of the district court and the panel i see the rest of my time is there any end point is there any point beyond which even if it's too early purely off campus speech absent the j s in the kind of case  property your honor there is and i think the distinction needs to be made between being able to sanction and punish particular speech and taking other forms of action so for instance there's a lot of  that is protected by the constitution things are out of what actions that can be taken to be a speech right so that when the ku klux klan holds a rally it's it's horrible speech clearly the municipality can't stop it but the police will for instance monitor what's going on supply protection that's what exact to the to the right for school district ron of the same thing while this is of course it's not pleasant nobody wants likes to be demeaned nobody likes to be sworn at  say direction you're heading i'm not i'm not your honor what i want to distinguish is sort of non disciplinary alternatives and it's are there any are there any are there any legal actions that can be taken by a school do not believe that for this purely out of school speech no matter how vulgar and offensive it may be that the school can actually punish justin for this they can talk to the student which they did they can talk to the parents the principal morning the parents were called in they were upset they addressed it and let's not forget the role of the parents in these situations read all of that they filed a lawsuit complaining that their son for the right violated correct what do we do with the fact that justin brought his computer into school showed it to classmates in spanish classroom accessed it showed it to classmates under sacks and frazier we said there is no protection for lewd vulgar speech in school is that not conduct that under saxon frazier would be punishable your honor with all due respect if those were the facts then maybe yes but they are not the facts here what we do know is from the record that justin once attempted to access his profile on school on thursday the thursday after it was about up and was not able to because it all your honor what judgment very said is that is immaterial because what we know is school administrators didn't know about that until after the fact they did a computer search to find out who was going on my space it be in school speech would concede that it's in school speech and would say well as in thomas that's de minimus in that situation but it would be in school speech but that's not what happened here and as if you look at just the disciplinary notice and the charges that were filed against justin they did not relate to bringing it in to school they're all about the verbal assault on the principal in the panel argument here counsel conceded that in fact they're not punishing him for bringing it in school the punishment is for the creation of this internet and all of that was done outside the school hypothetical matter supposing that he created the if these web parodies had been printed out and more grafters xerox to use an old fashioned form of dissemination and brought it to school as in an underground newspaper then clearly it could be punished for what it is instead of printing it out what if they all start talking about what it says and laughing about it and mocking the princip your honor again i same have ringing in on piece of your honor it isn't all sorts of things happen outside of school that are going to get students talking i'm pretty sure students in philadelphia are talking about the flyers today in school  and shameful and lewd as they were are that's very your honor what's different is whether it's in school or out of school if you look at the supreme court's jurisprudence in this area there are four cases all of them are established based on the special characteristics of the school environment is that i think is the point of importance of creation or where the information is here no it's where the information is shared i know that there are a most schools and harmon now after this occurred have the sophistication have the technology to physically block these websites from coming into the school what happened in hermitage if you look at the record was the school tried to do that mr gingrich the technology coordinator thought he had done that in the recent successful and it wasn't until he went out and got outside help that they were physically able to walk that so the schools and in the other case were arguing it was already blocked nobody can access it in school and the point is if you take the position that in fact because it's on the internet because it's accessible anywhere and it is regardless of where it's posted then it's subject to regulation what you're really doing is saying that because the internet is more effective well you do apply a different standard  message on a school message or bulletin board on the internet what happens then can i ask a clarification or are because it is i think these these questions are school message thing it's for all students and the student from home puts a lewd message on that i think it's good ministers do something to discipline that person even under fraser i think it depends on whether it's school sponsored a minister or whether some sitting on the board of school sponsored i think in that case yes you could just as if a student sent it and i would also say that if a student took this profile and e mailed it to mr trosch then at that applicable in those circumstances when it's off campus speech but it's directed on here you're right that frankly i think that that is an issue that's not something that the supreme court has ever said and what this court across from the school now and this is during school hours he uses a megaphone an amplifier whatever and hurls lewd speech if they're disrupting the school and that may be disorderly conduct and then you're not punishing the student based on the content of his or her speech but in fact for the noise and for the disruption i mean i think those are very difficult cases but i come back to the point that in fact geography does matter you know engine recourse to civil courts or civil remedies but i think are also said that the school could  action if cond speech invaded the rights of others so wouldn't defamation be an invasion of the right your honor that the only case that we're aware of that has followed that invasion of the rights of others is harper versus poway which is the ninth circuit case there is a very very strong dissent from judge kozinski which says if you take the path that judge reinhart took in the majority there that you're going to this rate the first amendment will know that that sad that there is no categorical exception for harassment and in that case in harper versus the way you had a student who was wearing a t shirt saying homosexuals homosexuality is shameful certainly under the analysis in sacks that would not be actionable would not be actionable unless you reach the title mind standard set out in davis forces monroe county school district where you show it's a hostile educational environment so no court has ward and not in the well i would say that the school a school sponsored message board is part of the school you are posting something that's that's officially set up by school principal that are pretty severe and it goes to let's say one hundred students in the school and it is accessed by students in the school but not on a school sponsored website of any time doesn't frezza really doesn't address that situation does it because it was in frazer there was nothing targeted against the school principal so i'm wondering it seems to me we're in a different area here and my question is do you think that the supreme court when they mention fraser and the morse were really thinking about this kind of hypo where it was directed lewd matters directed to a school principal but was accessed by people within the school community  i obviously don't know what the supreme court was thinking or each of the nine justices would be thinking and as full as this speech may be there is a countless line of cases where the supreme court has protected speech that's offensive that's provocative that involves opprobrious words abusive language racial epithets odious epithets patently offensive sexual speech  speech in school we said that don't we have to determine the fact issue of whether this was brought in your honor if it was in school then yes it could be subject to frazier in fact as a and directed to the principal not just general your comments your honor that i think that the line would be not who it's directed at i mean if you have a standard that says speech that's directed at or about a school official and that's the standard then you are essentially creating a content based censorship standards one that invites you point you said that if if it were done within the school context it could certainly be the punished or correcting inside the school house gate the supreme court has relaxed free speech standards out so what the student can say outside the school house is subject to sanction inside the school house so i think it is where the speech  swear the speech is distributed that in fact is the key not the content of the speech not whether it's about a principal or provocative a principal especially when it's outside the school on just on punishment based on the sharing of information in the school or the creation of the message on sides in well the argument before the panel that question was asked quietly chief judge mckee  and mr sanchez at that time sad and mid it that the punishment was based soley on the creation of this profile the creation which took place on a sunday and justin lay shocks grandmother's house using her computer so it had nothing to do with anything that may have happened in the school and the school was ignorant of that until long after that it only targeted fraser which isn't in school ok then yes that's correct i think that's certainly one inference and your honor if the court were to deem that in fact that tinker argument is not waived and we certainly think that it is waived it was not raised in the in the panel argument it was not raised and their initial the nexus they argued was that there was because he went on the website and copied the picture because it was directed at school there's a sufficient nexus to the school to make this on campus teach because they concede that you can apply frazier to off campus speech they can see that so they have to figure out some way to turn this off campus speech into on campus speech if you look at their opening brief they make two arguments in that neither one of them involves your honor and we filed our our twenty eight j letter on this point and i know there was a response and i think there is not helpful to the school district what it says there is if there is a pure question of  then maybe if it's of supreme importance or it would do in a justice the court may be able to consider that while which test applies may be a matter of law here the issue is how does tinker apply that's not an issue that was raised that's not an issue that was briefed in this court at any time so we would argue that it's way to reach the tanker issue given the factual and here given the fact that there was precious little evidence the court what what to do or how to approach this case all argument is that the court has that the parties have waived the tinker argument and to the extent the court determines otherwise there's really nothing in this record to show that there was actual destruction or a basis to forecast destruction which is an argument that they didn't even make in the district courts which never been made and it's patently unfair to raise that now especially since we've never had a chance to brief that but really fraser in the factual underpinning that would allow scary proposition it's certainly not an authority that either the supreme court or this court has given to school officials while children are in school they are under the custody and to t ledge of the school district i mean the parents have relinquished their rights at c n that's granthi that's on spot but once they leave that schoolhouse gate you've got parents who come into play they regain their custody they regain their rights over that child now as abusive as that language may be at a phillies game or on the internet it is beyond the school's authority to punish that because while it may be constitutionally unprotected inside the school whether it's hustler whether it's r a v whether it's a c l u versus reno whether it's johnson versus campbell in this case that kind of speech as much as we may not like it and nobody likes to be sworn at and nobody likes to why applying tinker outside the school would be so dangerous right so let's take substantial disruption there's a case been going on here in the philly area many judges may have heard about involving blake robbins and the lower merion school district where a student alleged that a school issued laptops and then used those laptops to spy on the kids initially that was an allegation it turned on to a lawsuit there's absolutely no question that that speech created a substantial a material disruption in that school they had t v helicopters flying over the school they had media stationed outside the school there can be no question that that speech created a substantial material disruption or also should be absolutely no speech no question that that speech is an absolute must be protected by the first amendment even if when making a bad accusation here decided to throw in a few choice words and call this principal  somebody is from a home computer putting out very demeaning things with respect to another student and it is causing that student and her family great consternation the student has become depressed the parents are worried that the student going is absolutely a terrible thing and the first thing i would say is that to decide what standard is applied and even if the court were to apply the tinker standard and as the squad has interpreted take sypniewski the first thing that needs to be looked at is whether that bullying is unprotected because as then a judge alito said in sacks there is no categorical exception for harassment so if it's a simple teasing or name calling that may be constitutionally protected at the point that it becomes sufficiently pervasive versus vere then it may be actionable and i know as judge randell wrote in a concurrence in that case it is these are very very difficult question frazier i think what you're what i'm really looking to your honor is some thinking that their house to be an or in approaching this that that we don't even get taker or frazier until we decide whether or not th can constitute a on campus speech by way of nexus one of the things i wanted to respond to that i thought was interesting though as i think was quite confusing we don't get the on campus speech unless we can i think first we have to look the campus or into the school i don't know if it's adopting a new rule of law your honor a hybrid because i think i think that the pennsylvania supreme court in that j s case was faithful to both the supreme court decisions and what's new a new rule offer us without bond but what i understand that said i understand that i think that though i think the way i read the jass this isn't from the pets makes for a court your honors i think that they were consistent with both thinker and frazier i don't think that they created any new walker asking us to adopt a first thing they did then they went on to the analysis and said you know well this isn't taker we're not sure if it's a pleasure but it's promotion drugs that's how i read what the morse court said but one of the interesting things that i heard in argument here i believe it was in response to a question from judge rangel is that counsel for les shock said that a school message board is part of a school and in this case funds or school message board yes in this case this case starts this issue is it a pot a school district administrator and here the very beginning of the very beginning of it is getting to test that is not content neutral because if a kid wants to go into the school website take the principal's picture and then deem it to the entire school saying i think mr tools is the world's greatest principal my kind of guy if i had if i could vote i would suggest that he be complete for the way vegetation my guess is the kid's not going to suspend it for that so if we're looking at the inten address of everything in a positive opinion then you're ok go ahead of the class i don't think it's an intent question when i walk into an elementary school i am on school property regardless of what my intent is when i go onto a school district website i am on school district property not regardless or my i mean frazier all the cases have to do with activity in school frasier wasn't a nexus case in frasier there was a captive audience the student was making obscene remarks in an assembly convened by the school i mean those are key facts here so i mean i don't know where you're you're getting this nexus what case has said if there's a nexus that that means it's in school think that's a good point and i but i would i believe your honour's i think again the very essence of the internet has the what one person once said to me it's not a matter of where you throw the grenade it's where the grenade la exactly you know of any case i don't believe there is a case on point with that no you are however and you know all i was trying to do it was say that conceivably there could be if you had a school sponsored message board and somebody from home access that it might fit under morse in that it's a school sponsored something this will sponsor deemed to be part of the school activities  one example one of the other things that i wanted to touch on is i think that you know we don't agree that school districts the it's critical for school districts and schools to be able to function and i think you know we talk about one of the other you're out a series said during the first oral argument you conceded that he was disciplined soley not based on what may have happened when he opened it up or not at school is that the case i don't know but i don't recall that because i went back while he picture is dragging now there is this business wasn't there well i think with regard to that your honor i mean it's all pieces of a part i mean the taking of the truck trash profile and creating this and and  sharing it with other students and accessing a school that is harassment of a student of a school administrator via the computer internet with remarks that have the meeting implications it's the same thing it's exactly the same thing i think as far as this issue not being raised and being briefed you know in the lay shot brief in response to our brief they clearly go through a section where they say just the speech is protected under taker because it's it cause  no disruption that's one of their arguments when they reframe my argument and that's why the reply brief says no we believe there was a substantial risk disruption and we believe that there was a i believe that one of the difficult the for called inquiries at least for me is that when we look at frazier and we look at pinker they're not in my mind at least so  have a situation really have school speech to me that's the legal issue frazier of course goes to the one and obscene speech taker of course goes to political speech so we were arguing frazier frazier this was an obscene speech case and that's why it was applicable however that does not mean we ever conceded that there was not a substantial disruption or a reasonable risk that th an obviously the school believe that when they had their computer specialist spent twenty five percent of his time trying to repair it and as counsel for les shock pointed out they tried something it didn't work they went out and got outside help they spent money they expended funds conclusion i think that i have challenged it in the sense that yes did i write the words in my principle brief this offends take or because there was a substantial disruption or a reasonable likelihood of sepsis there disruption i did not write that however when that is that below the bare with it and what it would that be retaliation a first met retaliation of the student if mr trius would not write such a letter recommendation he could forward a copy of the profile wouldn't that be retaliation i believe that this is a i said i believe the internet changes the tariff that ron and i know judge smith asked me for that earlier i think one is that you do have questions like like this question is the message board part of school sure it is the internet these days is part of school so i mean just because he travels more quickly does that justify greater regulation of that speech that would welcome a lot of people asking that question i think that it's not speed as well i have a footnote here right cite from a gallup survey and students today that's how they communicate that is a primary method of communication is the internet  space might my own sure i feel students they communicate by my space in the my space profiles go to their phones where does that take you in a first amendment analysis where because it the way they communicate i here for the first amendment last seems now i think you think of i think the first amendment is is the same i don't think it changes the first member what i think it does though is i think what we consider on campus changes because of the internet i think that we're it was easy in