Appeals court: Schools cannot silence off-campus expression

ARKANSAS — A federal court of appeals ruled Aug. 28that it was beyond the jurisdiction of a school district to expela student for profane and violent lyrics he wrote outside of schoolabout his former girlfriend.

In a 2-1 decision, the U.S. Court of Appeals for the EighthCircuit upheld the judgment of U.S. District Judge George HowardJr., who had ruled in November that the written words of studentJosh Mahan were protected under the First Amendment.

The appeals court said in Doe v. Pulaski County SpecialSchool District, 2001 WL 968357, that since Mahan’s "statementsdo not amount to a true threat, his speech is protected becausehe wrote the compositions at home, and the school district cannotsilence a student’s personal expression that occurs off campus."

U.S. Circuit Judge David R. Hansen was the lone dissentingvoice, saying that in his view the lyrics were a true threat."The young lady who was the target of the threats consideredthem to be very real; so real that she took to sleeping with thelights on," Hansen wrote. He also said the district courtinadvertently valdified the "disgusting document" bycalling it a "composition."

Court documents describe Mahan’s lyrics as "patently offensive,"with references to "violence, misogynism, and suicide."

Mahan, a junior high student who is represented by the AmericanCivil Liberties Union, was expelled for one year after schoolofficials obtained the lyrics he wrote. Mahan never brought thewritings to school, nor did he attempt to present the lyrics directlyto his ex-girlfriend. According to court documents, they werestolen from his home by a friend who gave the lyrics to the formergirlfriend. She then gave them to school administrators.

Rita Sklar, executive director of the ACLU of Arkansas, commendedthe decision, telling the Associated Press that the ruling helpsto clarify when speech that contains violent thoughts is protectedby the First Amendment. Sklar said the ruling, "affirmsthe principle that schools may not reach out beyond school wallsto punish off-campus protected activity it doesn’t like."