The National Attorneys General Training & Research Institute

The National Attorneys General Training & Research Institute The National Attorneys General Training & Research Institute

When Social Media Becomes an Oxymoron: Free Speech, True Threats, & "Just Kidding"

Kevin C. McDowell, Assistant Chief Counsel, Advisory Division, Indiana Attorney General’s Office

This is the first article in a two-part series.[1]

Every state has had a school shooting or an incident where weapons were brought onto campus.  While such threats galvanize a community and garner media coverage, the lasting effect is with the public schools:  How will the next tragedy be prevented?  As Judge M. Margaret McKeown stated in Wynar v. Douglas County School District:[2]

With the advent of the Internet and in the wake of school shootings at Columbine, Santee, Newtown and many others, school administrators face the daunting task of evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights. It is a feat like tightrope balancing, where an error in judgment can lead to a tragic result. …But the challenge for administrators is made all the more difficult because, outside of the official school environment, students are instant messaging, texting, emailing, Twittering, Tumblring, and otherwise communicating electronically, sometimes about subjects that threaten the safety of the school environment. At the same time, school officials must take care not to overreact and to take into account the creative juices and often startling writings of the students.[3]

Depending upon a state’s laws, a public school may be a state agency or a local governmental entity.  Notwithstanding what the status might be, public schools operate typically pursuant to legislative enactments, statutory and regulatory. With increased concerns over school security, public schools, in implementing such laws, may find themselves running afoul of constitutional rights of students. This increasingly draws attorneys general into the fray, usually to defend the legislative enactment or to prosecute purported criminal activity. The nearly universal use of social media by students raises important questions as to whether or to what extent public schools may discipline students for such “speech,” especially where the speech occurs off-campus during non-school hours.   

Student social media use has resulted in school concerns regarding harassment (particularly, cyberbullying), creation of a substantial disruption or material interference in the school, and a marked increase in what may be termed “true threats,” this latter topic the focus of this article.

Any First Amendment[4] analysis of student speech within a public school context must begin with reference to the U.S. Supreme Court’s four school-speech cases:

Tinker v. Des Moines Independent Community School District, 393 U.S.503, 507-08, 514 89 S. Ct. 733 (1969) (student speech/expressive conduct in a school context cannot be banned absent substantial disruption or material interference with school purposes or the reasonable forecast of same, or the invasion of the rights of others).

Bethel School District No. 403 v. Fraser, 478 U.S. 675, 681, 683, 685-86, 106 S. Ct. 3159 (1986) (student’s sophomoric speech — which contained offensive, indecent, lewd references — was not protected speech and could be regulated because vulgar or indecent speech and lewd conduct in the classroom or school context is inconsistent with the fundamental values of public school education).

Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 270-71, 273-76, 108 S. Ct. 562 (1988) (school could exercise editorial control over the style and content of student articles in school newspaper because newspaper was part of journalism class experience and, accordingly, was part of a school-sponsored expressive activity; however, such editorial control must be “reasonably related to legitimate pedagogical concerns”).

Morse v. Frederick, 551 U.S. 393, 127 S. Ct. 2618 (2007) (a message reasonably viewed as advocating illegal drug use – “Bong HiTS 4 Jesus” – need not result in a substantial disruption before school officials could restrict such speech on school property or at a school event).[5]

From these four cases, lower courts have distilled the following:

  1. Public schools have wide discretion to prohibit speech that is vulgar, lewd, indecent, or plainly offensive, even if not obscene (Fraser).

  2. If the speech may be considered “school sponsored,” school personnel may censor the speech so long as the censorship is “reasonably related to legitimate pedagogical concerns.” This would apply to any medium of expression controlled by the school (Kuhlmeier). 

  3. School personnel may censor speech that is “reasonably perceived as promoting illegal drug use” (Morse).

  4. A student’s free-speech rights within the public school context are not co-extensive with the rights of adults in other settings (Fraser, Kuhlmeier, Morse).

  5. For all other student speech (speech that is not vulgar, lewd, indecent, or plainly offensive; does not promote illegal drug use; or is not considered “school sponsored”), the rule of Tinker will apply, and school personnel may not regulate student speech unless such speech would materially interfere or substantially disrupt class work and discipline within the school, or violate the rights of others.

Without reference to a public school, there are also other categories of speech that are not protected at any time:

  • New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964) (absent proof of actual malice, a public official cannot be awarded damages against critics of his official conduct for purported libel).

  • Miller v. California, 413 U.S. 15, 93 S. Ct. 2607 (1973) (state can regulate the indiscriminate dissemination of obscene materials where these materials depict or describe patently offensive “hard core” sexual conduct, as defined under state law).

  • Incitements to Imminent Lawlessness. Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827 (1969) (state’s criminal code cannot punish mere advocacy or assembly with others to advocate actions that are not incitements to imminent lawless action).

  • True Threats. Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399 (1969) (political hyperbole by 18-year-old during discussion does not constitute “true threat” to kill the president).

  • Fighting Words. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766 (1942) (calling police officer a “damned racketeer” and “damned Fascist” are insulting words likely to provoke the average person to retaliate and thereby breach the peace).

The U.S. Supreme Court’s four student free-speech cases all occurred on a high school campus (or at a school-related activity) and did not involve electronic communications; as a consequence, lower courts endeavor to apply these precedents to circumstances not contemplated by the highest court.  Some patterns are emerging. 

The metaphorical “schoolhouse gate” in Tinker is “not constructed solely of the bricks and mortar surrounding the school yard,” especially in the Internet age.  “Nevertheless, the concept of the ‘school yard’ is not without boundaries and the reach of school authorities is not without limits.”[6]   Two tests are emerging to assess whether a public school may discipline a student for off-campus electronic speech that does not occur during school hours or through the use of school equipment—the “Nexus” test and the “Reasonable Foreseeability” test.

The “Nexus” Test

This test is derived from the Fourth Circuit’s holding in Kowalski v. Berkeley County Schools.[7] This test “looks for a sufficient nexus between speech and the school[.]” In Kowalski, a high school student created a MySpace discussion group where she and over two dozen students from the high school engaged in a series of increasingly disparaging remarks about another student, including lewd references using the targeted student’s picture.  Although Kowalski deleted the discussion group after the targeted student discovered it, the damage had been done.  The targeted student was mortified that fellow classmates could write such things about her.  She filed a complaint of harassment with the high school and found it impossible to attend school in the immediate aftermath.  Kowalski, who was suspended for this activity, argued her speech was protected from school discipline because it took place at home, after school, through personal means.  The court disagreed, finding that there was a sufficient nexus between Kowalski’s speech and the school.  The participants were mostly high school classmates of the targeted student, the discussion group was named after the targeted student, it was foreseeable the dialogue would reach the school and did reach the school, the “group thread was understood by the victim [to be] an attack ‘made in a school context,’” and there was an impact in the school environment (the impingement on the right of the targeted student to a safe, secure learning environment). 

The “Reasonable Foreseeability” Test

This test arises from the Eighth Circuit’s holding in S.J.W. v. Lee’s Summit R-7 School District,[8] where twin brothers created a blog directed at the school.  This test “asks whether it was reasonably foreseeable that the off-campus speech would reach the school” and “create a risk of a substantial disruption.”  The students’ blog contained “racist content as well as sexually degrading comments about specifically identified female classmates.” Even though the brothers told only six school friends about their blog, there were no privacy settings.  “[W]hether by accident or intention, word spread quickly” about the blog’s content in the high school.  According to the court, it was reasonably foreseeable the blog content might reach the school because it was “targeted” at the school and specific students, the content was likely to cause a substantial disruption, and the content did, in fact, result in a substantial disruption, meriting long-term suspensions for the brothers.

These tests are not bright-line in any sense but depend upon a number of factors, especially upon what sort of potentially proscribed speech is at issue.  For “true threats,” the more immediate concern of school officials, there are two necessary elements:  (1) the speaker intends his communication to put his target or targets in fear for their safety; and (2) the communication is likely to actually cause such fear in a reasonable person similarly situated to the target.  As with most student speech, whether a statement is a threat is an objective question.  The speaker’s subjective frame of mind is not particularly relevant.  For “true threats” that affect schools, there are other considerations, especially where the statement occurred off-campus and not during school hours or on school equipment.

The courts are increasingly analyzing such disputes to determine whether the off-campus electronic speech is a “true threat” or the student really was “just kidding,” as they so often represent.  Some of areas the courts are scrutinizing:

  • Was the threat sufficiently precise?
  • Was the threat directly communicated to the intended person(s) or communicated in such a fashion as to ensure the target would receive the threat?
  • Was there a significant passage of time between the communication and the receipt of the threat by the targeted person?
  • Does the student have the ability to carry out the threat?
  • Is state law sufficiently clear so as to put a student on notice that his communication could be considered a “true threat?”

Under the Court’s decision in Watts,[9] the challenged speech must constitute a “true threat” and not merely political hyperbole or idle chatter.  The speaker must intend to communicate to another a “serious expression” of an intent to commit an act of unlawful violence to a particular individual or group of individuals.[10]

However, “[t]he speaker need not actually intend to carry out the threat.  Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”[xi] A reasonable recipient of such a statement would have to interpret the challenged speech as a serious expression of an intent to harm another.  It is not necessary that the speaker communicate the threat directly to the targeted individual or group; communication to a third party may be sufficient.[xii]

While courts in recent years have displayed considerable deference towards public school districts in addressing threatening speech or other student expression that may be disruptive, they have also been more circumspect of late, declining to accept the utterance of “Columbine” as sufficient justification or defense to challenges by students claiming violations of their free-speech rights under the First Amendment.

True Threat Present

Violent Speech and Expression

As noted supra, there is no bright-line analysis for determining whether a student’s seemingly violent expression (written, drawn, or spoken) is intended as a creative exercise or poses a “true threat.”  There likely is not such a bright-line; instead, there will have to be a case-by-case analysis to assess the reasonableness of the actions of school administrators in disciplining students for such speech.  Context and the known history of the student do play a role.  The Wynar case, discussed below, has proven influential in the area of assessing whether social media communications constitute a “true threat” to a school.

In Landon Wynar v. Douglas County School District, et al.,[xiii] the school district found the student’s off-campus speech posed a threat to the safety and security of the school and its students.  Landon Wynar was a high school sophomore.  He collected weapons and ammunition and owned various rifles.  He communicated regularly from home with his friends via instant messaging through MySpace, a social networking website that allows its members to engage in real-time dialogue through various means. Landon often wrote about weapons, World War II, and Adolph Hitler, whom he once referred to as “our hero.”  He also expressed degrees of alienation.  His MySpace messages became increasingly violent and disturbing.  Some messages centered on a school shooting to take place on April 20 (Hitler’s birthday and the date of the Columbine massacre).  He wrote about hit lists, a desire to “get the record” for school shootings, a girl who would be the first one he would kill, raping other students, and the perceived ineptness of the Virginia Tech shooter.   

These escalating comments alarmed Landon’s friends. Two of them approached a football coach, who, in turn, took them to the principal who was shown print-outs of his messages. Law enforcement was then contacted. Two police deputies talked with the reporting students and viewed the print outs. They then met with Landon who was subsequently taken into custody. School officials met with Landon while he was in custody and asked him if he wanted his parents present during this meeting.  Landon declined to have his parents present. He admitted authorship of the MySpace messages, but he claimed these were meant to be jokes. School officials obtained a written statement from Landon. He was suspended from school for 10 days.   

The school board charged Landon with violating a state statute that provides that a student will be considered a “habitual discipline problem” if there is written evidence the student threatened another pupil, teacher, or school employee.  Under a companion statute, a student considered a “habitual discipline problem” must be suspended or expelled for at least a semester.  The school board convened a hearing. At the conclusion, the school board found that Landon was a “habitual discipline problem” and expelled him from school for 90 days.   

Landon sued his school district and several of its personnel, asserting that his First Amendment free-speech and Fourteenth Amendment due-process rights were violated.  The federal district court granted the school district’s Motion for Summary Judgment, and Landon appealed to the Ninth Circuit.

First Amendment Defense

Although noting that the U.S. Supreme Court had not yet addressed whether or to what extent its existing student free-speech cases would apply to student speech occurring off campus, the court nevertheless held that, under Tinker, the school district did not violate Landon’s First Amendment rights.  His messages “threatened the safety of the school and its students” and “interfered with the rights of other students.”  It was “reasonable for school officials to forecast a substantial disruption of school activities.” 

Although acknowledging that Tinker did not involve off-campus speech and noting reluctance to adopt an approach that would essentially negate the relevance of the geographic origins of the student speech at issue, it concluded:  “[T]he location of the speech can make a difference, but that does not mean that all off-campus speech is beyond the reach of school officials.”[xiv]  Other Circuit Courts have applied Tinker to off-campus speech to varying degrees and with some variations in the analysis.  Some other Circuit Courts have left open the question whether Tinker applies at all.    

One of the difficulties with the student speech cases is an effort to divine and impose a global standard for a myriad of circumstances involving off-campus speech.  A student’s profanity-laced parody of a principal is hardly the same as a threat of a school shooting, and we are reluctant to try and craft a one-size-fits-all approach. We do not need to consider at this time whether Tinker applies to all off-campus speech such as principal parody profiles or websites dedicated to disparaging or bullying fellow students.  These cases present challenges of their own that we will no doubt confront down the road.  Nor do we need to decide whether to incorporate or adopt the threshold tests from our sister circuits, as any of these tests could be easily satisfied in this circumstance.  Given the subject and addressees of [Landon’s] messages, it is hard to imagine how their nexus to the school could have been more direct; for the same reasons, it should have been reasonably foreseeable to [Landon] that his messages would reach campus.  Indeed, the alarming nature of the messages prompted [his] friends to do exactly what we would hope any responsible student would do: report to school authorities.  Here we make explicit what was implicit in LaVine:  when faced with an identifiable threat of school violence, schools may take disciplinary action in response to off-campus speech that meets the requirements of Tinker.[xv]

In this case, the messages could be interpreted as a plan to attack the school.  The messages were written by a student with access to weapons (and apparently once brought a gun to school). His messages were brought to the attention of school authorities by other students.  Under Tinker, public schools may restrict speech that may reasonably forecast a substantial disruption or material interference with school activities or impinge upon the rights of other students to be secure and to be let alone.  It was reasonable for school officials to interpret the messages as a real risk and to forecast a substantial disruption, particularly when one considers Landon’s background, his fascination with previous school shootings, his stated desire to set the record for murdering other students, and his choice of a date (April 20), which “implicitly invoked another horrific mass school shooting—the massacre at Columbine.”  The court noted that, unlike the parody of the principal in J.S. ex rel. Snyder v. Blue Mountain Sch. District,[xvi]  which, although exceptionally crude, “was so outrageous that no one took its content seriously,”[xvii] Landon’s “MySpace messages should have been taken seriously and apparently were.”[xviii]  It does not matter whether Landon was joking; it was reasonable for the school district to proceed as though he were not. 

The court noted that few courts have addressed the “impingement or invasion of the rights of other students” prong of the Tinker analysis and stated its agreement with the Third Circuit which opined in Saxe v. State College Area School District,[xix] that it is insufficient to find that the student speech at issue is merely offensive to some listener.

Whatever the scope of the “rights of other students to be secure and to be let alone,” Tinker, 393 U.S. at 508, without doubt the threat of a school shooting impinges on those rights.  [Landon’s] messages threatened the student body as a whole and targeted specific students by name.  They represent the quintessential harm to the rights of other students to be secure.[xx]

Fourteenth Amendment Due Process Defense

Turning to Landon’s Due Process argument, the court noted that state law does provide a right to a publicly-funded education.  Accordingly, Landon had a property interest in his public education and was entitled to due process before he could be suspended.[xxi]  In this case, the court concluded that Landon received adequate due process before both his 10-day suspension and 90-day expulsion. He received adequate notice prior to his 10-day suspension.                                                              

Before the decision to suspend him for 10 days, he received appropriate notice.  Prior to the hearing before the school board concerning expulsion, Landon received written notice of the charges against him and a list of possible witnesses; was allowed to be represented by counsel; had the opportunity to present evidence; and was allowed to cross-examine witnesses.  He was not denied his due process rights.[xxii]

The court also rejected Landon’s assertion that the school district failed to provide adequate notice that his off-campus speech could result in disciplinary action, including expulsion.  The student handbook, which is distributed at the beginning of the school year, warns students that they could face disciplinary sanctions for engaging in behavior that could be considered “intimidating, harassing, threatening, or disruptive.”  The student handbook does not employ geographic limitations for such conduct. 

In this case, the school officials correctly evaluated the potential safety threat. Thus, summary judgment in favor of the school district was affirmed.

In another case involving possible “true threats,” the federal district court in the Eastern District of Pennsylvania reviewed the suspension of a 15-year-old high school student, A.N.[xxiii]  A.N. and two friends created a private, anonymous account on Instagram, a social networking website, which they named “upperperkiscool.”  A.N. characterized the account as a “vigilante” group designed to “make fun” of others.  He wished to remain anonymous so he did not use his real name and used a photograph of another child as his profile picture.  The followers of the private Instagram group were predominately students at A.N.’s high school. 

On Dec 4, 2016, around 8:00 p.m., A.N. posted a “mash-up” of two videos to the Instagram account.[xxiv]  He merged Evan, a video intended to draw attention to potential signs of school violence, with lyrics from a song titled “Pumped Up Kicks” by a group called Foster the People.  In the Evan video, one of the main characters in the first part of the video (Evan) signs a yearbook with “See you next year.”  The lyrics from the song contain references to guns and bullets, exhorting the listener to run if the listener wishes to remain alive. 

The mash-up used only a portion of Evan—a scene where students are all signing yearbooks in the gymnasium when a silhouetted student appears in the doorway, drops a duffel bag, and cocks a semiautomatic rifle.  The video fades to black as students begin screaming and running.  A.N. overlaid the lyrics to “Pumped Up Kicks” to this portion of the clip.  No specific reference is made to his high school and, other than the lyrics, there is no specifically threatening language.  When he posted this to the Instagram account, he added the following take-off on Evan’s yearbook statement:  “See you next year, if you’re still alive.”[xxv] 

After the anonymous posting, other students viewing it (45 during the two hours it was available) expressed concerns that this might be a threat.  One student contacted A.N. directly to see whether he intended the post to be a threat.  A.N. said it was not a threat and removed it from the Instagram account.  A.N. also deleted the mash-up video from his personal devices as well.  Two parents also saw either the video or a screenshot.  One emailed the high school principal, while the other called the state police. 

The state police contacted the high school principal and left a voicemail around 2:00 a.m., alerting him that a threat may have been made against the school on an anonymous Instagram account.  The principal returned the call “within minutes.”  The state police sent the principal a screenshot.  The principal then notified the superintendent.  The principal also read the email from the other parent, expressing alarm at the video.  The principal tried to identify the student from the photograph A.N. used for his profile, but this proved unsuccessful.[xxvi]

The superintendent and state police worked through the night, but it was not possible to determine whether the threat was real because the poster was anonymous and the picture used was not of A.N.  Finally, early in the morning of December 5, 2016, the superintendent cancelled all classes in the school district. The superintendent also notified all schools and parents of the circumstances, including the superintendent’s concerns that she could not determine whether the threat was real or who might be the intended targets. 

Around 6:30 a.m., A.N. emailed the superintendent.  He did not use this opportunity to alleviate her concerns nor confess that he was responsible.  Rather, he seemed to be taunting her. He acknowledged the “issue at hand” that resulted in the cancellation of classes “was serious,” and that it was his understanding that persons who viewed the video “became reasonably scared.”  A.N. later admitted that he “intentionally mislead” the superintendent.  The superintendent forwarded A.N.’s email to the state police.  As a result, the state police paid a visit to A.N.’s home.  After a preliminary investigation (all traces of the video had been erased by then), they closed the case, determining that A.N. had not committed a crime of making terroristic threats.  Not so the school.  It suspended A.N. pending expulsion.  He was not allowed to enter school grounds or attend a school function without permission.  Prior to this incident, A.N. had never been subject to school-based discipline.

On December 15, 2016, A.N. through his parents sued the school district and its personnel, asserting the school district’s discipline violated his right to free speech.  He sought emergency injunctive relief that would have required the school to readmit him.  He also sought a discontinuance of his suspension and a prohibition against the school to prevent his expulsion. 

The court held that A.N. was not entitled to injunctive relief and that Tinker did not protect A.N.’s speech in this instance.  While the speech did occur off-campus, school personnel could reasonably conclude the speech constituted a true threat against the school, and that his speech could—and did—cause a substantial disruption to the school and the entire district. 

The court observed that, although the Supreme Court has not applied Tinker to off-campus speech, other circuit courts of appeal have done so.[xxvii] The federal district court elected to follow the majority and apply Tinker to A.N.’s off-campus speech.  The court rejected A.N.’s contention that, if a disruption did occur, it was not because of his speech.  He argued that it was the “mischaracterization” of his speech that caused the disruption, adding that the reaction by school personnel was not reasonable: 

While A.N. attempts to argue that others mischaracterized his speech, the facts do not support such a conclusion. Any “mischaracterizations” arose after the perceived threat existed and stemmed from A.N.’s choices pertaining to the mash-up, including posting the video from an anonymous account, using a profile picture of an unknown child, posting on an Instagram page directed at School District students.[xxviii]

To the court, it did not matter what A.N.’s subjective intent was when he posted the video. The mash-up video post did, in fact, create a substantial disruption to the school environment and it was reasonable for the school district to forecast a substantial disruption.  The court also determined that it did not matter, in this case, that no school personnel had actually viewed the video; it was sufficient that others viewed it and notified school personnel. 

Considering the totality of the circumstances, and the facts as outlined above, [the superintendent] and the School District officials’ fear of disruption was significant and not remote because, at the very least, there was a suggestion of a school threat from an unknown source over the internet in a forum consisting predominately of Upper Perkiomen school district students.[xxix]

The court held that A.N.’s First Amendment rights were not violated and A.N. did not meet his burden to obtain injunctive relief. 

Threats To School Personnel

Threatening school personnel can have serious repercussions.  It is not uncommon for states to have laws that not only specifically address such threats but provide for enhanced sanctions, making what might be a misdemeanor offense a felony count.[xxx]  Courts tend to view threats to school personnel as constituting a substantial disruption or material interference under a Tinker analysis.  The following cases are representative.

Wisniewski v. Bd. of Education of Weedsport Central School District, 494 F.3d 34 (2d Cir. 2007), cert. denied, 552 U.S. 1296, 128 S. Ct. 1741 (2008).  Using AOL Instant Messaging (IM) software on his parents’ home computer, he created an icon on his IM profile that showed a pistol firing a bullet at the teacher’s head with blood splattering as a result.  Below the drawing were the words “Kill Mr. VanderMolen.”  The student did this even though he recently had been instructed that the school would not tolerate threats or any other acts of violence.  The icon was available for viewing by his IM “buddies” for three weeks.  A classmate informed the teacher who, in turn, informed the principal.  The student indicated the icon was a joke and that he had no violent intent.  He was suspended for one semester.  His parents appealed, claiming the suspension violated the student’s First Amendment rights.  The court upheld the student’s suspension.  “Even if [the student’s] transmission of an icon depicting and calling for the killing of his teacher could be viewed as an expression of opinion within the meaning of Tinker, we conclude that it crosses the boundary of protected speech and constitutes student conduct that poses a reasonably foreseeable risk [of] materially and substantially disrupting the work and discipline of the school.”[xxxi] 

Bell v. Itawamba County School Board, et al., 799 F.3d 379 (5th Cir. 2015) (en banc), cert. denied., 136 S. Ct. 1166 (2016).  The rap on rap songs is that they are frequently obscene, lewd, indecent, vulgar, misogynistic, racist, and replete with gross grammatical errors, all of which serve to define this genre. Taylor Bell composed a rap about two coaches at this high school and the wife of one of them, incorporating just about all the criteria for “rap.”  He posted it to Facebook, which was accessible to about 1,300 “friends,” but he also published it on YouTube where the audience could be, essentially, unlimited.  The rap contained racist lyrics and potentially defamatory remarks about the coaches, suggesting they engaged in sexual improprieties with female students.  The song also indicated the coaches were “going to get a pistol down” their mouths.  School officials accused Bell of making threats and false allegations of improper conduct.  He was disciplined for engaging in conduct that constituted “harassment and intimidation of teachers and possible threat against teachers.”  The court upheld the discipline, finding that, although Bell devised his rap outside of school, his publishing it to Facebook and YouTube to reach an unlimited audience (as well as fellow students) resulted in a substantial disruption or material interference with the school. There is no First Amendment right to knowingly make a comment that reasonably could be perceived as a threat of violence to school employees.  Students’ free speech rights are tempered by the school’s legitimate interest in maintaining order.   The rap song did cause a material interference or substantial disruption, and—by publishing it to an unlimited audience—it was reasonably foreseeable that this would occur, especially with the allegations of improper conduct and the threats of violence. 

J.S. v. Bethlehem Area School District, 807 A.2d 847 (Pa. 2002).   An eighth grade student created a threatening website directed at his algebra teacher, explaining “Why she should die” and seeking contributions to hire a hitman.  The website badly frightened the teacher as well as several students and parents, so much so that the teacher was unable to resume her teaching responsibilities.  The Pennsylvania Supreme Court found the website “created disorder and significantly and adversely impacted the delivery of instruction,” such that the school district was justified in punishing the student for his off-campus expressive conduct.[xxxii] 

True Threat Not Present

Although the courts have been particularly deferential to public schools in addressing threatening behavior of students, the Internet concept of the “school yard” is not, as one court noted, “without boundaries and the reach of school authorities is not without limits.”[xxxiii] Sometimes the Internet speech could not reasonably be construed as a “true threat.”  In such cases, common sense should prevail. 

Braeden Burge v. Colton School District 53, 100 F.Supp.3d 1057 (D. Or. 2015).  Braeden was a 14-year-old eighth grade student in the middle school.  He received a “C” in his health class, which resulted in his being grounded by his mother.  On his personal Facebook page, he vented his frustration to his “friends,” indicating he wanted to “start a petition” to get his health teacher fired, adding “she’s the worst teacher ever.”  After some exchanges with his friends and the copious use of “HAHAHAHA,” he wrote “Yah aha she needs to be shot.”  His mother, however, daily monitors Braeden’s Facebook page (as well as the Facebook pages of her other children).  She told him to delete the entire post, which he did.  The comments were deleted within 24 hours of their creation.

There is no dispute he posted these comments from his home computer when school was not in session.  The postings were restricted to his “friends.”  His health teacher is not one of these “friends” and could not have viewed his comments.  Braeden never communicated a threat to his health teacher, did not believe she would be shot, and never intended to start a petition.

Six weeks later, a parent of another middle school student anonymously put a print-out of the comments in the principal’s mailbox.  The principal called Braeden to the office and spoke to him about the posts and school policy.  The principal also called his mother, who indicated she had already taken care of this, adding that this was not a school matter since it occurred outside of school.  Nevertheless, the principal gave Braeden three and one-half days of in-school suspension.  The lawsuit followed.

The federal district court was more interested in what the school did not do rather than what it did do.  While the principal did speak with Braeden, neither the principal nor anyone else on behalf of the school investigated to see whether Braeden had access to guns or other weapons, did not contact the police, and did not consider whether he needed a referral for counseling.  In addition, no one inquired of his other teachers whether they were aware of any untoward Facebook postings by Braeden of a similar nature nor did they inquire to see whether he made any subsequent postings of a similar nature.

His health teacher was upset about the postings, but she did not miss any days of teaching because of it.  She was not enthusiastic about having him back in her class, but accepted the school’s decision to return him to her class.  There were no problems for the rest of the school year.

The court, noting that Tinker involved in-school expressive conduct and not off-campus speech, nonetheless applied the “substantial disruption/material interference” Tinker standard, as other courts have done, notably in the Wynar case discussed above. 

Braden’s comments, the court found, “did not cause a widespread whispering campaign at school or anywhere else.  No students missed class and no [middle school] employees, including [the health teacher] missed work.”  The school’s failure to take basic investigatory steps indicated that it was not taking the comments seriously. 

Braeden was, thus entitled to summary judgment on his First Amendment free-speech claim against the school district. 

North Carolina v. Joshua Mortimer, 542 S.E.2d 330 (N.C. Ct. App. 2001).  Following the Columbine shootings on April 20, 1999, schools throughout the country were on alert for possible copycat crimes.  On May 4, 1999, a screen saver on the one of the school’s computers displayed the following: “The end is near.”  The screen saver was created by Mortimer, a student at the school.   Although the investigating detective testified that he believed the screen saver to be a prank, the student was charged and convicted of communicating a threat.  The appellate court reversed, finding that the statement “the end is near” does not communicate a threat to injure a person or property.  In fact, the court noted. There is no way to ascertain what was meant. No one at trial could testify as to what the statement meant, although, given the proximity to the Columbine tragedy, the statement could have been interpreted that the author meant to bomb the school. The court found, however, that it was not a reasonable inference to come to such a conclusion beyond a reasonable doubt.

What We Can Learn From These Cases?

Under existing case law, there seems to be some consensus when it comes to analyzing off-campus social media speech by students that may pose a “true threat” to the student’s school.

  • Out-of-school statements by a student are constitutionally protected and not punishable by school authorities unless the statements are “true threats,” are reasonably calculated to reach the school environment, and are so egregious as to pose a serious safety risk or other substantial disruption the school environment.

  • A student’s off-campus online expression of opinion that is non-violent, non-threatening, and non-defamatory may not be subject to school disciplinary action even when targeted to a school audience.

  • “Substantial disruption” means more than mere embarrassment, offense, or inconvenience; the concept is not determined on a subjective basis.

  • A student’s social media communications that are not accessible to the public are generally protected from intrusion by school authorities, the same as a conventional letter.

  • “Just Kidding” is rarely a justifiable excuse or reason. Whether social media comments constitute a “true threat” is determined on an objective basis, not a subjective one.

When analyzing whether a student’s off-campus statement constitutes a “true threat,” there are several factors that may come into play:

  • What is the student’s disciplinary history?
  • What is the student’s ability to carry out the threat? Is the content of the threat fanciful or does the student actually have access to weapons or otherwise have the ability to carry out the threat?
  • What is the student’s social media history (before and after the incident giving rise to the school’s concern)?
  • What is the anticipated reaction of the intended audience (where the threat is to the general school population)? Can a substantial disturbance or material interference be reasonably forecast?
  • What is the reaction of the target (where the threat is directed at a specific person or group)?
  • What is the effect on the target?
  • Was the threat sufficiently precise?
  • Was the threat directly communicated to the target or was the threat communicated in such a fashion so as to ensure the target received the threat?
  • Was there a significant passage of time between the communication of the threat and receipt of the threat by the target?
  • Is state law or school policy sufficiently clear so as to put a student on notice that the content of a communication could be considered a “true threat?”

APPENDIX

For Your Reference: Social Media Sites[xxxiv]

  1. Facebook — Apart from the ability to network with friends and relatives, the user can also access different Facebook apps to sell online and can even market or promote your business, brand, and products by using paid Facebook ads. 1.59 billion users per month.
  2. WeChat — Similar to WhatsApp. A user can text, call, and share media. 697 million users per month.
  3. Instagram — Users can post videos and photos, follow and like other photos and videos as well as use filters when you upload multi-media. 400 million users.
  4. SnapChat — This is an image messaging platform. Users can chat with friends through text or through photos that disappear after a set amount of time. 200 million monthly users.
  5. WhatsApp — Messaging app that lets users text, chat, and share media. They can also share voice messages and video whether with individuals or groups. 1 billion users per month.
  6. QQ —This is an instant messaging app. It can be used to send texts, video calls, and voice chats. It also has a built in translator. Popular in China. 853 million users per month.
  7. QZone — Used to share photos, watch videos, listen to music, and write blogs. 640 million monthly users.
  8. TUMBLR — Owned by Yahoo! A user can find and follow things that you are interested in and post anything, including multi-media. 550 million monthly users.
  9. Twitter — Allows users to post short messages. One can also promote their business. 320 million monthly users.
  10. Google+ — Users can stay in touch with friends by sharing photos, videos, links, and so on. One can also promote their business. 300 million monthly users.
  11. Skype — Users can connect with people through voice calls, video calls, and text – to include group calls. Skype to Skype calls are free. 300 million monthly users.
  12. VIBER — Available in 30 languages and users can text and use voice messaging as well as share photos and videos and audio messages. 249 million monthly users.
  13. Pinterest — Users can share photos and visuals as well as bookmark things one likes. It is used primarily for DIY projects, travel, recipes, and so forth. 100 million monthly users.
  14. LinkedIn — Designed for professional users. Available in 20 languages, and allows users to connect with other professionals or businesses. 100 million monthly users.
  15. Reddit — Users can submit content and vote for the content posted. The voting determines whether your content moves up or down and the site is organized by areas of interest. 100 million monthly users.
  16. Foursquare — Users can search in the local area and find places to go with friends or family: food, entertainment, etc. 40 million monthly users.
  17. Myspace — Music focused social media site that allows users to network with friends with blogs, photos, videos, personal profiles and so on. 20 million monthly users.
  18. YouTube — Largest video sharing site. Users can upload and share videos as well as comment on them. Users can create a channel and upload original content.
  19. Vine — Users can upload short videos that can then be viewed, shared and commented on by other users.
  20. Flickr — Users can share photos and is used by photographers to manage and share their work.

[1] Part I addresses school security issues and social media. Part II, which will appear in the next NAGTRI Journal, will address the non-security issues involving student social media use.

[2] 728 F.3d 1062, 1064 (9th Cir. 2013).

[3] See, e.g., Porter v. Ascension Parish School Board, 393 F.3d 608 (5th Cir. 2004), cert. denied., 544 U.S. 1062, 125 S. Ct. 2530 (2005), which involved a student’s violent drawing of the destruction of his school he created when he was a freshman.  His younger brother inadvertently took it to school two years later because he needed a sketch pad for class.  The school’s punishment abridged the student’s First Amendment free-speech rights (“Private writings made and kept in one’s home enjoy the protection of the First Amendment, as well as the Fourth. For such writings to lose their First Amendment protection, something more than their accidental and unintentional exposure to public scrutiny must take place”).

[4] “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly, and to petition the government for a redress of grievances.”

[5] Searches of electronic devices under the Fourth Amendment and other non-security issues will not be discussed in this article.  The general court consensus is that the reasonable suspicion/reasonable scope requirements arising under New Jersey v. T.L.O., 469 U.S. 325 (1985), would apply to searches of student cell phones and other electronic devices.  This is source material for another article.

[6] Layshock v. Hermitage School District, et al., 650 F.3d 205, 216 (3d Cir. 2011) (en banc).

[7] 652 F.3d 565 (4th Cir. 2011), cert. denied, 132 S. Ct. 1095 (2012). 

[8] 696 F.3d 771 (2012).

[9] 394 U.S. at 708 (1969).

[10] Context and listener reaction are important.  In Watts, id., a conviction for threatening the president was reversed.  The statement was directed at forced conscription (“If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.”). No reasonable listener would have interpreted these remarks as an actual or true threat on the president.

[xi] Virginia v. Black, 538 U.S. 343, 359-60, 123 S. Ct. 1536 (2003) (citation and internal punctuation omitted).

[xii] See, e.g., D.J.M. v. Hannibal Public School District #60, 647 F.3d 754 (8th Cir. 2011) (court upheld suspension of student who, through Instant Messaging with friends, indicated he would obtain a gun and shoot certain classmates and then commit suicide; friend knew D.J.M. had access to a gun and was distraught; school did not have to wait for actual disruption but could act because student’s speech constituted “true threats,” which are not afforded First Amendment protection).  Also see Wynar v. Douglas County School District, 728 F.3d 1062 (9th Cir. 2013) (school could suspend student based upon reasonable forecast of substantial disruption based on violent social media comments he made, including threats to the school and specific students as well as a desire to “get the record” for school shootings).

[xiii] 728 F.3d 1062 (9th Cir. 2013).

[xiv] Id. at 1068.

[xv] Id. at 1069.

[xvi] 650 F.3d 915 (3rd Cir. 2011) (en banc).

[xvii] Id. at 921,

[xviii] 728 F. 3d at 1071.

[xix] 240 F.3d 200, 217 (2001).

[xx]  728 F.3d at 1072.

 [xxi] Id., citing Goss v. Lopez, 419 U.S. 565, 572-74 (1975).

[xxii] Landon made much of the fact that no witnesses testified to any disruption that occurred at school because of his MySpace messages.  The court pointed out that, under Tinker, there need not be an actual disruption, just a reasonable forecast of a substantial disruption or material interference.  “Tinker does not require actual disruption before a school can impose discipline.”  The court also noted that Landon’s speech may have also been considered “true threats,” which would not be entitled to any First Amendment protection at all, but the Court declined to so find because this dispute could be resolved through application of Tinker.  The court also noted that, while a separation from school attendance for more than 10 days might require a more formal process, there were no specific procedures detailed by either the Supreme Court or federal courts with jurisdiction in this district. 

[xxiii] A.N. v. Upper Perkiomen School District, et al., 228 F.Supp.3d 391 (E.D. Pa. 2017).

[xxiv] The court relied upon an on-line dictionary to define “mash-up” as “something created by combining elements from two or more sources.”  Id. at 393, n. 1. 

[xxv] Id at 394. A.N. stated that he created the mash-up because he believed Evan deserved ridicule. 

[xxvi] Apparently, the photo A.N. used was of another child in the community.  Later in the opinion, the court wrote that “[a]n innocent child and his family were awoken in the middle of the night by the police out of concern that he posted the threat.”  Id. at 399. 

[xxvii]  228 F. Supp.3d. at 399, n. 9 (collected cases).

[xxviii] Id. at 400.

[xxix] Id.

[xxx] Indiana not only requires the specific reporting of such an offense, see Ind. Code § 20-33-9 et seq., but also bumps up such an offense from a Class A misdemeanor to a Level 6 felony if the threat is communicated to “an employee of a school or school corporation.”  Ind. Code § 35-45-2-1(b).

[xxxi] 494 F.3d at 38-39.

[xxxii] See also O.Z. v. Board of Trustees of the Long Beach Unified School District, et al., 2008 WL 4396895 (C.D. Cal., September 9, 2008) where a middle school student was disciplined for her violent video depicting the death of one of her teachers, even though it occurred during a school vacation.  It was uploaded to YouTube and, as a consequence, was not private speech.  It did not matter that O.Z. meant this to be a joke.

[xxxiii] Layshock v. Hermitage School District, et al., 650 F.3d 205, 216 (3d Cir. 2011) (en banc).

[xxxiv] Thanks to Weston Nicholson for compiling this list.  Weston is completing his first year of law school.  I needed someone under 30 years of age to do this.

[1] Part I addresses school security issues and social media. Part II, which will appear in the next NAGTRI Journal, will address the non-security issues involving student social media use.

[2] 728 F.3d 1062, 1064 (9th Cir. 2013).

[3] See, e.g., Porter v. Ascension Parish School Board, 393 F.3d 608 (5th Cir. 2004), cert. denied., 544 U.S. 1062, 125 S. Ct. 2530 (2005), which involved a student’s violent drawing of the destruction of his school he created when he was a freshman.  His younger brother inadvertently took it to school two years later because he needed a sketch pad for class.  The school’s punishment abridged the student’s First Amendment free-speech rights (“Private writings made and kept in one’s home enjoy the protection of the First Amendment, as well as the Fourth. For such writings to lose their First Amendment protection, something more than their accidental and unintentional exposure to public scrutiny must take place”).

[4] “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly, and to petition the government for a redress of grievances.”

[5] Searches of electronic devices under the Fourth Amendment and other non-security issues will not be discussed in this article.  The general court consensus is that the reasonable suspicion/reasonable scope requirements arising under New Jersey v. T.L.O., 469 U.S. 325 (1985), would apply to searches of student cell phones and other electronic devices.  This is source material for another article.

[6] Layshock v. Hermitage School District, et al., 650 F.3d 205, 216 (3d Cir. 2011) (en banc).

[7] 652 F.3d 565 (4th Cir. 2011), cert. denied, 132 S. Ct. 1095 (2012). 

[8] 696 F.3d 771 (2012).

[9] 394 U.S. at 708 (1969).

[10] Context and listener reaction are important.  In Watts, id., a conviction for threatening the president was reversed.  The statement was directed at forced conscription (“If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.”). No reasonable listener would have interpreted these remarks as an actual or true threat on the president.

[11] Virginia v. Black, 538 U.S. 343, 359-60, 123 S. Ct. 1536 (2003) (citation and internal punctuation omitted).

[12] See, e.g., D.J.M. v. Hannibal Public School District #60, 647 F.3d 754 (8th Cir. 2011) (court upheld suspension of student who, through Instant Messaging with friends, indicated he would obtain a gun and shoot certain classmates and then commit suicide; friend knew D.J.M. had access to a gun and was distraught; school did not have to wait for actual disruption but could act because student’s speech constituted “true threats,” which are not afforded First Amendment protection).  Also see Wynar v. Douglas County School District, 728 F.3d 1062 (9th Cir. 2013) (school could suspend student based upon reasonable forecast of substantial disruption based on violent social media comments he made, including threats to the school and specific students as well as a desire to “get the record” for school shootings).

[13] 728 F.3d 1062 (9th Cir. 2013).

[14] Id. at 1068.

[15] Id. at 1069.

[16] 650 F.3d 915 (3rd Cir. 2011) (en banc).

[17] Id. at 921,

[18] 728 F. 3d at 1071.

[19] 240 F.3d 200, 217 (2001).

[20]  728 F.3d at 1072.

[21] Id., citing Goss v. Lopez, 419 U.S. 565, 572-74 (1975).

[22] Landon made much of the fact that no witnesses testified to any disruption that occurred at school because of his MySpace messages.  The court pointed out that, under Tinker, there need not be an actual disruption, just a reasonable forecast of a substantial disruption or material interference.  “Tinker does not require actual disruption before a school can impose discipline.”  The court also noted that Landon’s speech may have also been considered “true threats,” which would not be entitled to any First Amendment protection at all, but the Court declined to so find because this dispute could be resolved through application of Tinker.  The court also noted that, while a separation from school attendance for more than 10 days might require a more formal process, there were no specific procedures detailed by either the Supreme Court or federal courts with jurisdiction in this district. 

[23] A.N. v. Upper Perkiomen School District, et al., 228 F.Supp.3d 391 (E.D. Pa. 2017).

[24] The court relied upon an on-line dictionary to define “mash-up” as “something created by combining elements from two or more sources.”  Id. at 393, n. 1.

[25] Id at 394. A.N. stated that he created the mash-up because he believed Evan deserved ridicule. 

[26] Apparently, the photo A.N. used was of another child in the community.  Later in the opinion, the court wrote that “[a]n innocent child and his family were awoken in the middle of the night by the police out of concern that he posted the threat.”  Id. at 399. 

[27]  228 F. Supp.3d. at 399, n. 9 (collected cases).

[28] Id. at 400.

[29] Id.

[30] Indiana not only requires the specific reporting of such an offense, see Ind. Code § 20-33-9 et seq., but also bumps up such an offense from a Class A misdemeanor to a Level 6 felony if the threat is communicated to “an employee of a school or school corporation.”  Ind. Code § 35-45-2-1(b).

[31] 494 F.3d at 38-39.

[32] See also O.Z. v. Board of Trustees of the Long Beach Unified School District, et al., 2008 WL 4396895 (C.D. Cal., September 9, 2008) where a middle school student was disciplined for her violent video depicting the death of one of her teachers, even though it occurred during a school vacation.  It was uploaded to YouTube and, as a consequence, was not private speech.  It did not matter that O.Z. meant this to be a joke.

[33] Layshock v. Hermitage School District, et al., 650 F.3d 205, 216 (3d Cir. 2011) (en banc).

[34] Thanks to Weston Nicholson for compiling this list.  Weston is completing his first year of law school.  I needed someone under 30 years of age to do this.

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