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Legal Report September 2011


SOCIAL MEDIA. In two similar cases before the U.S. Court of Appeals for the Third Circuit, the appellate court ruled that students who created fake MySpace pages to spoof pages that their principals might have created were protected under the First Amendment. The courts ruled that the schools could not discipline the students for activities conducted off school grounds.

In one case (Layshock v. Hermitage School District), Justin Layshock used his grandmother’s computer to create a MySpace profile spoofing his high school principal, Eric Trosch. On December 10, 2005, the 17-year-old Layshock used a photo from the school district’s Web site to create the profile and gave unflattering and vulgar answers to the questions used to create the profile. Layshock then gave numerous other students access to the profile by listing them as “friends.” After Layshock posted the profile, three other students posted profiles of Trosch. Each was more offensive than Layshock’s.

Trosch learned of the profiles about a week after they were posted. Concerned about his reputation, Trosch contacted the police and attempted to press charges, asking whether the profile constituted harassment, defamation, or slander. No criminal charges were brought against Layshock or the other students who posted profiles.

The school was not able to block student access to MySpace from school computers because the district’s technology coordinator was on vacation. So the school cancelled computer programming classes and limited the students’ access to computer labs and the library. This policy continued until school was out for holiday break on December 21, 2005.

On that day, officials learned that Layshock might be the author of one of the profiles. Layshock and his mother were called into the superintendent’s office. Layshock admitted writing the profile. No disciplinary action was taken, and Layshock gave an unprompted, personal apology to Trosch.

The school district held a disciplinary hearing in early 2006 and found Layshock guilty of several infractions, including disrespect, harassment of a school administrator via the Internet, and gross misbehavior. The school found Layshock guilty of all charges. Punishment included a 10-day suspension and exclusion from all extracurricular activities. Layshock was not allowed to participate in graduation and he was prohibited from continuing his advanced placement classes and was instead put in a program for disruptive or learning delayed children for the rest of his high school career. The school district informed Layshock that he might still face expulsion for his actions.

Layshock’s parents sued the school district claiming that it violated their son’s First Amendment rights to freedom of speech. Both sides requested summary judgment—a hearing based on the facts of a case without a trial. The U.S. District Court for the Western District of Pennsylvania found in favor of the Layshocks. The school district appealed the decision.

The U.S. Court of Appeals for the Third Circuit found that, absent conduct that causes significant disruption, a school may not discipline students for First Amendment speech that occurs outside school grounds. In the written opinion of the case, the court wrote that “we do not think that the First Amendment can tolerate the school district stretching its authority into Justin’s grandmother’s home and reaching Justin while he is sitting at her computer after school in order to punish him for expressive conduct that he engaged in there.”

In another case (J.S. v. Blue Mountain School District), a female middle-school student, referred to as J.S. in court documents, created a MySpace profile of her principal, James McGonigle. The profile, which was created on the weekend at the home of J.S., did not name McGonigle but did include a photo of him from the school district’s Web site. The profile was vulgar and contained sexually explicit terms. Initially, the profile was public and could be found by anyone but the next day J.S. made the profile private. By the time the profile was taken down, 22 students had been given access.

McGonigle learned of the profile two days after it was posted when a student mentioned it to him. The student told McGonigle that J.S. had posted the profile and provided a print-out of the post. The only print-out of the profile that ever entered the school was this one requested by McGonigle.

J.S. was given a 10-day suspension and was prohibited from attending school dances. McGonigle also threatened J.S. and her mother with legal action. Both apologized personally to McGonigle and J.S. wrote him a letter of apology.

On the same day that he met with J.S. and her mother, McGonigle contacted local police to press charges. Local law enforcement referred McGonigle to the state police but warned him that any charges would likely be dropped. McGonigle ultimately decided not to press charges but requested that police discuss the matter with J.S. to stress the seriousness of the issue. J.S. and her mother were summoned to the state police station for this purpose.

J.S. and her parents filed a lawsuit against the school district, claiming a violation of First Amendment rights. Both parties requested summary judgment. The U. S. District Court for the Middle District of Pennsylvania granted the school’s request. The court made a distinction between protected speech and “vulgar and offensive” speech, which is not protected in a school setting. The court noted that while the incident did not cause a serious disruption, it did have an effect on the functioning of the school, and the district, therefore, acted appropriately. The plaintiffs appealed.

The U.S. Court of Appeals for the Third Circuit overturned the lower court’s decision. The court ruled that the profile was created outside of school on the student’s own time and was, therefore, protected by the First Amendment. The court also noted that the profile did not cause a significant disruption at the school and that J.S. took pains to ensure that the profile would remain private. In the written opinion of the case, the court noted that “if anything, McGonigle’s response to the profile exacerbated rather than contained the disruption at the school.” (Layshock v. Hermitage School District, U.S. Court of Appeals for the Third Circuit, No. 07-4465, 2011. J.S. v. Blue Mountain School District, U.S. Court of Appeals for the Third Circuit, No. 08-4138, 2011)

DRUG TESTING. A federal appeals court has ruled that the Americans with Disabilities Act (ADA) does not stipulate how long a drug user must undergo rehabilitation before being protected by the act, but an employee is not protected by the ADA if the drug use is sufficiently recent that the employer believes drug abuse is still an issue. Protections are triggered when there is a reasonable belief that drug use is no longer a problem.

Peter Mauerhan was hired by Wagner Corporation as a sales representative in 1994. In 2004, Mauerhan entered an outpatient drug rehabilitation program. Wagner was aware of Mauerhan’s participation in the program but was not affected because the program took place outside of work hours.

In June 2005, Mauerhan was required to take a drug test. The test was positive, and Mauerhan was fired for violating the company’s drug policy. Mauerhan’s supervisor told him that if he could stop using drugs, he could return to the company.

Mauerhan entered an inpatient drug program in July 2005. He completed the program a month later, but his counselor’s prognosis as to a potential recovery was “guarded.”

The day after completing the program, Mauerhan contacted Wagner and asked for his job back. Mauerhan was told that he could return but at a lower compensation level and with different accounts. Mauerhan declined the offer and filed a lawsuit claiming that Wagner violated the ADA and discriminated against him as a drug addict when it refused to hire him back.

Wagner requested summary judgment, arguing that Mauerhan was a current drug user when he asked to be rehired and, thus, was not a qualified individual with a disability under the ADA. (The ADA provides a “safe harbor” for those who have successfully completed a drug rehabilitation program and are no longer using drugs.) The U.S. District Court for the District of Utah granted Wagner’s request, ruling that a 30-day rehabilitation program was too short to ensure that Mauerhan had successfully completed a program and was drug free. Mauerhan appealed the decision, arguing that there was no rule or standard establishing that a 30-day program was insufficient proof of rehabilitation.

The U.S. Court of Appeals for the Tenth Circuit upheld the lower court’s decision. The court ruled that the 30-day program was not the determining factor, however. An employer must be convinced that a person’s drug use is no longer an issue for that person to be protected by the ADA. An employee is not protected by the ADA if the drug use is sufficiently recent that the employer believes drug abuse is ongoing. In the written opinion of the case, the court noted that “an individual’s eligibility for the safe harbor must be determined on a case-by-case basis, examining whether the circumstances of the plaintiff’s drug use and recovery justify a reasonable belief that the drug use is no longer a problem.” (Mauerhan v. Wagner Corporation, U.S. Court of Appeals for the Tenth Circuit, No. 09-4179, 2011)


DATA SECURITY. A bill (S. 799) introduced by Sen. John Kerry (D-MA) would apply data protection and notification requirements to companies not yet covered by other federal laws. The law expressly exempts financial institutions and healthcare organizations, both of which already are covered under other federal statutes. Industries that would be affected include telecommunications and cable television industries, which have not previously been included in privacy laws.

Under the proposal, protections are only given to sensitive data, which is defined as personally identifiable information, information that includes a unique identifier, and any information that is collected, used, or stored in connection with other information that, when combined, may be used to identify a specific individual. The bill excludes information obtained from public records or data shared voluntarily in a forum, reported in the media, or designated as workplace contact information. Privacy advocates have voiced objections to these exclusions.

S. 799 would require the Federal Trade Commission (FTC) to issue rules on how companies must notify individuals of information use, storage, transfer, and collection practices. Rules would also be issued on the acceptable methods for opt-out or opt-in consent and the means by which consumers could correct inaccuracies.

Individuals could not sue under the provision and the bill would preempt state data protection laws, many of which are more stringent than the proposed legislation.

S. 799 has two cosponsors and has been referred to the Senate Commerce, Science, and Transportation Committee.

Testifying at a House Energy and Commerce subcommittee hearing on similar legislation, Justin Brookman of the Center for Democracy & Technology said “What is needed more than security and notification requirements is a data privacy law that incentivizes and requires companies to collect only as much personal information as necessary, be clear about with whom they’re sharing information, and expunge information after it is no longer needed.”

INTELLECTUAL PROPERTY. A bill (S. 968) introduced by Sen. Patrick Leahy (D-VT), which would allow the attorney general to take action against Internet sites that infringe on intellectual property rights, has been approved by the Senate Judiciary Committee. The Senate has announced that it will consider the measure.

S. 968 would permit the attorney general to pursue certain actions against what the bill defines as Internet sites dedicated to infringing activities. Such sites are those that have no significant use other than engaging in copyright infringement and by selling or promoting copyrighted works without permission. The government would be allowed to take legal action against the registrant of the domain name or the owner or operator as indicated through the domain name registration. Courts could issue temporary restraining orders or injunctions against such sites.

BORDER SECURITY. A bill (H.R. 915) introduced by Rep. Henry Cuellar (D-TX), designed to improve security along the U.S. border with Mexico, has been approved by the House Homeland Security Committee’s Subcommittee on Border and Maritime Security. The bill must now be considered by the full committee.

The bill would require that U.S. Immigration and Customs Enforcement (ICE) establish a border enforcement security task force that would facilitate collaboration among federal, state, local, tribal, and foreign law enforcement agencies. These groups would share information and launch coordinated crime reduction activities.

ICE would be required to report to Congress on the effectiveness of the program in enhancing border security and reducing drug trafficking, arms smuggling, illegal alien trafficking, violence, and kidnapping along the border.


WEAPONS. A new law (formerly S.B. 321) in Texas allows employees to keep firearms and ammunition locked in their cars on company property. The law does provide exceptions for schools and for properties, such as oil and gas refineries, where combustible or explosive materials are prohibited by law.

The law makes it clear that the presence of firearms or ammunition on the employer’s property does not constitute an unsafe workplace. Except in cases of gross negligence, the law gives employers immunity from civil liability arising from the practice of keeping firearms on company property.

New York
SEXUAL ABUSE. A bill (S.B. 5606) has been introduced that would require hotel and motel owners to provide sexual harassment training to employees and to develop programs to facilitate reporting of harassment. Hotel owners would be required to provide a “know your rights” brochure to all employees detailing state and federal laws on sexual harassment. The bill would make it illegal to retaliate against employees who report sexual harassment.

The bill was introduced in response to the alleged sexual assault of a housekeeper by Dominique Strauss-Kahn, the former managing director of the International Monetary Fund.

This column should not be construed as legal or legislative advice.