MISSOURI — If it is “reasonably foreseeable” that students’ onlineconversations will reach the attention of school authorities, administrators maybe able punish students for them, a three-judge panel of the 8th U.S. CircuitCourt of Appeals ruled Monday.
The decision is the second in a week to hold that“disruptive” off-campus posts can be punished at school.
“D.J.M.” was a high school student in the Hannibal PublicSchool District in 2006 when he exchanged instant messages with a friend,including his thoughts on obtaining access to a gun and killing students at hisschool. The conversation concerned his friend, “C.B.” to the point that sheforwarded the messages on to an adult, who in turn contacted the principal. Thepolice were called after the principal and superintendent determined the chatlogs constituted a threat.
The school suspended D.J.M. for 10 days following his arrestand psychiatric evaluation. His suspension was later extended to cover the restof the school year because administrators concluded his instant messages andarrest constituted “a disruptive impact on the school.” His parents appealedhis suspension, lost, then filed a lawsuit against the school district allegingit had violated D.J.M.’s First Amendment rights. They argued he did not intendany “true threat,” a legal term for a threat of violence communicated with themeans to carry it out.
A federal court in Missouri found in favor of the schooldistrict on the First Amendment claim, and the Eighth Circuit agreed. The courtconcluded that the posts did constitute a true threat and thus had no FirstAmendment protection.
But the decision went further and invoked the Tinker v. Des Moines Independent CommunitySchools decision, determining that the speech entered the campus whenanother student brought it to an adult’s attention and created a substantialdisruption.
“School officials cannot constitutionally reach out todiscover, monitor, or punish any type of out of school speech,” Judge DianaMurphy wrote for the court. “When a report is brought to them about a studentthreatening to shoot specific students at school, however, they have a‘difficult’ and ‘important’ choice to make.”
The court decided that although D.J.M.’s statements weremade off-campus, they became punishable when they were brought to schooladministrators, finding that “Here, it was reasonably foreseeable that D.J.M.’sthreats about shooting specific students in school would be brought to theattention of school authorities and create a risk of substantial disruption withinthe school environment.”
Frank LoMonte, executive director of the Student Press LawCenter, expressed concern over the scope of the decision.
“Once the court realized that the case could be fullydecided on the basis of the true threat standard, that’s where they should havestopped,” LoMonte said. “There’s no need to wade into the much more complex anddelicate Tinker issue that doesn’tappear to have gotten adequate consideration.”
The decision impacts students in Arkansas, Iowa, Minnesota,Missouri, Nebraska, North Dakota and South Dakota. It joins Kowalski v. Berkeley County Schools,decided just last week by the 4th U.S. Circuit Court of Appeals, in using Tinker as the standard to decide onlinespeech cases.
“It certainly has the potential for spillover effect ontostudent expression even though this speech is very far from the core ofjournalistic or editorial speech that’s of the greatest concern,” said LoMonte.“That’s always the risk when the court makes an overly broad ruling, that it hasunintended bad consequences for people engaging in far more meritorious typesof speech.”
Teri Goldman, attorney for the school district, said she waspleased with the decision.
“We never viewed it as a First Amendment free speech case,but [D.J.M.] clearly did,” Goldman said.
Attorneys for the student were not immediately available forcomment.
Either side may appeal by Aug. 15 to have the case reheard en banc by the full panel of EighthCircuit judges. The parties also have until mid-October to petition to have thecase heard by the Supreme Court.