Court says student's violent buddy icon not protected expression

NEW YORK — An eighth-grader’s suspension for sharing an AOL Instant Messenger buddy icon depicting his teacher being shot was upheld by the Second U.S. Circuit Court of Appeals on July 5, affirming a lower court’s dismissal of the First Amendment challenge.

The icon showed a gun shooting a bullet at a person’s head, splattering red dots, and included the caption, “Kill Mr. VanderMolen,” who was the student’s English teacher at the time, according to court documents.

The student, Aaron Wisniewski, transmitted the icon to at least 15 online friends, including some classmates at Weedsport Middle School, from his parents’ home computer in April 2001, according to the decision.

The three-judge panel’s decision directly addresses the collision of off-campus speech with on-campus school disciplinary policies in the Internet age, ruling that out-of-school speech, especially threats, that could disrupt school operations may be punished.

“The fact that Aaron’s creation and transmission of the IM icon occurred away from school property does not necessarily insulate him from school discipline,” the court’s decision read. “We have recognized that off-campus conduct can create a foreseeable risk of substantial disruption within a school.”

“It just shows that the courts are giving schools the authority to reach outside of school and outside of the school building,” said Stephen Ciotoli, Wisniewski’s attorney. “This is a private text message between kids. This is like two kids having a conversation in their bedroom and the court now saying a school can punish that.”

Wisniewski did not send the icon to any school officials, but another student showed it to VanderMolen, who alerted local police, the school superintendent and Wisniewski’s parents.

A police officer questioned Wisniewski and determined that he meant the icon as a joke and posed no real threat, closing a criminal investigation. A psychological evaluation reached the same conclusion.

But after a May 2001 superintendent’s hearing, the hearing officer decided that the icon did constitute a threat, irrespective of Wisniewski’s intent. She said that although the act occurred outside of school, it disrupted school operations and created “an environment threatening the health, safety and welfare of others,” according to her written decision.

Wisniewski was suspended for a semester.

His parents sued in November 2002, but a federal district court sided with the hearing officer in June 2006, and the Second Circuit agreed this month.

“Even if Aaron’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 that the icon would ‘materially and substantially disrupt the work and discipline of the school,'” read the court’s decision, invoking the “substantial disruption” test established in the U.S. Supreme Court’s 1969 ruling in Tinker v. Des Moines Independent Community School District.

Significantly, the court said the icon was not a true threat but could still cause a substantial disruption, according to Adam Goldstein, attorney advocate for the Student Press Law Center.

“That ruling sets up a Catch-22,” Goldstein said. “If it’s clear that speech is not a true threat, then no one could reasonably conclude that it would cause a disruption. In fact, it would be pretty unreasonable to conclude that non-threatening speech could be disruptive.”

Ciotoli said the Second Circuit court’s decision was influenced by the Supreme Court’s “Bong Hits 4 Jesus” ruling last month.

“I assume the Second Circuit was waiting for that decision and, to a certain extent, I think they followed it,” he said. “They probably figured if they had gone the other way and then this case had gone up to the Supreme Court, the Supreme Court might have reversed them. So I see them following the more conservative wind here, which is disappointing because I see it as a whittling away of student free-speech rights.”

But Ciotoli said that the Second Circuit’s ruling went a step further than “Bong Hits,” or Morse v. Frederick.

“Now we have this kind of leap where we’ve gone from, ‘Well, we’ll control speech at school assemblies, we’ll control speech in the student newspaper, we’ll even control speech if you unroll a 20-foot banner at a school-sponsored event,'” he said. “Maybe that all makes sense. But now we’re going to control speech between two kids having a private conversation off campus, which really has nothing to do with school? That’s quite a leap.”

“So that really begs the question: What’s left of Tinker?” Citoli added.

Referencing Supreme Court Justice Clarence Thomas’s concurring opinion in Morse, in which he advocated overturning the Tinker standard altogether, Ciotoli said, “in some ways the Second Circuit just did that.”

Ciotoli said the Wisniewskis would petition for en banc review, allowing all 13 Second Circuit judges to reconsider the case.

“If we don’t get a hearing there, we’ll do a writ of [certiorari] up to the Supreme Court,” he said. “This may be something they’ll want to hear because student free speech seems to be on their minds these days.”