At a comedy club, a bad joke can get you booed. At school, a bad joke can get you expelled.
Landon Wynar was a student at Nevada’s Douglas County High School in 2008 when he and a friend had several Internet conversations in which he discussed shooting schoolmates and compared himself to Seung-Hui Cho, the gunman behind the 2007 Virginia Tech massacre. Wynar later said he was kidding and never intended to act on any of the statements, and that he and his friend had just been joking.
The friend showed transcripts of the conversation to another friend, who alerted school officials. Wynar was arrested and held for 33 days before being released without criminal charges. He was suspended from school for 10 days and subsequently expelled for the remainder of the school year. His guardian, Mark Wynar, filed a lawsuit on Landon’s behalf, alleging the school violated Landon’s First and Fourteenth Amendment rights.
Nevada District Court Judge Larry Hicks sided with the school district, finding that the landmark Tinker v. Des Moines case empowered the school to reach Wynar’s speech because the remarks were disruptive to the school environment, despite taking place off campus. The judge granted summary judgment to the school, meaning he determined that Wynar’s claims were foreclosed as a matter of law with no need to submit the case to a jury trial.
Jeffrey S. Blanck, attorney for Mark and Landon Wynar, criticized the opinion as incomplete and out of line. He said that the discussion between Wynar and his friend was a private conversation never intended to be seen by anyone else, leaving the statements below the “true threat” threshold for unprotected speech.
“A true threat is a statement of immediate harm conveyed to the victim or intended to be conveyed to the victim,” Blanck explained. “So what they’re saying now, or at least what the court’s saying here now, is whatever you say, if you say anything of a violent nature about anybody, you can be kicked out of school and arrested. You can be punished for your words and not your acts. And you don’t need any criminal intent.”
Blanck said the decision also neglected to discuss key details such as whether the school had conducted an investigation into the credibility of Wynar’s threat and the details of how the conversations were reported to the principal.
“The judge picked and chose his facts, which shouldn’t be done in summary judgment,” Blanck said. “These are teenage boys talking about things that teenage boys talk about. They never threatened anybody.”
Blank said the Wynars are still deciding whether they will file an appeal.