Ninth Circuit gives school officials (limited) license to punish students’ threatening online speech

Whether public schools can regulate students’ off-campus speech just as if the speech occurred on campus is a recurring legal issue that will arise with increasing frequency now that state legislatures are putting schools into the business of policing online bullying.

The Ninth Circuit U.S. Court of Appeals, based in San Francisco and covering nine Western states, normally is considered one of the more pro-free-expression federal courts. A recent Ninth Circuit ruling represents a setback for students’ First Amendment rights, but a purposefully narrow one, applying only to speech that portends a physical threat to school safety.

The case of Wynar v. Douglas County School District arose when students at a Nevada high school turned in one of their classmates, Landon Wynar, for disturbingly graphic messages about school violence he shared with them through MySpace. Wynar talked specifically about how much ammunition he would need to kill more people than the 32 victims murdered at Virginia Tech in 2007, named specific people on campus he hoped to shoot, and even identified a target date. That was enough to prompt Douglas High School to alert the police and impose a 10-day suspension, which the school board extended to a one-semester expulsion.

Wynar and his father sued, claiming that the school district overreached in expelling him for the content of his off-campus speech. A federal district judge threw out the case, and on Aug. 29, a three-judge panel of the Ninth Circuit agreed, finding no First Amendment violation.

Wynar’s case was the first time that the Ninth Circuit explicitly said that the Supreme Court precedent applying to students’ First Amendment rights on campus, Tinker v. Des Moines Independent Community School District, applies off campus as well. Tinker allows schools to punish speech if it portends a substantial disruption of school activities. Normally, the government cannot punish speech outside government premises unless it crosses extreme thresholds (offers to sell drugs or pay a bribe, child pornography), so Tinker represents a significant compromise in the level of legally protected freedom that a citizen would otherwise expect.

Many First Amendment advocates believe Tinker is insufficiently protective of off-campus speech, recognizing that speech on a social networking page is not equivalent to speech inside a school building during the school day, where a captive listening audience is legally prevented from leaving.

Two federal circuits (the Fourth and the Eighth) have found speech to be punishable under Tinker even if it takes place entirely off campus on social media. Three federal circuits (the Second, Third and Fifth) have equivocated.

In the Wynar ruling, the Ninth Circuit took pains to distinguish Wynar’s threatening speech from the more-difficult case of a student who merely uses the Internet to post uncivil or mocking remarks about school officials — the more commonplace scenarios in cases such as Doninger v. Niehoff (finding a student’s disrespectful remarks on a blog to be unprotected) and J.S. v. Blue Mountain School District (finding a student’s crude parody of her principal on MySpace to be protected).

Emphasizing that Wynar’s case was solely about “an identifiable threat of school violence,” Circuit Judge M. Margaret McKeown wrote:

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.

Although the Wynar ruling was not as broad as it might have been, the judges need not have (and arguably should not have) addressed the Tinker issue at all. Judges are cautioned always to decide cases in the narrowest way, avoiding difficult constitutional questions when possible. In this case, a narrower route was available. If Wynar’s speech qualified as a “true threat,” then it was unprotected by the Constitution even if spoken by an adult in the off-campus world.

In a footnote, the judges said it was unnecessary to decide whether Wynar’s speech was credible and specific enough to constitute a “true threat,” because they were deciding the case on Tinker grounds instead. But that is exactly backward. The “unnecessary” part of the case was creating a new legal precedent when a century of Supreme Court precedent regarding threats could have disposed of the case entirely, doing no additional harm to the First Amendment.

For those involved in student journalism or campus activism, the most important takeaway from Wynar is that the Ninth Circuit is still open to being persuaded that stronger protection than Tinker is appropriate when a student is speaking outside of school on personal time and no credible threat of violence exists. It will be important for students and teachers in the Ninth Circuit states to educate their schools about what the court did not decide.