A Pennsylvania student’s joking Facebook post attempting tomake light of a school bomb threat landed him a 23-day suspension. Now, it mayput him on a path to the U.S. Supreme Court.
In an opinion issued May 3, U.S. District Judge John E.Jones III decided that the student’s post was unprotected by the FirstAmendment, because school administrators reasonably perceived the speech assubstantially disruptive to school operations.
Jones’ ruling squarely tees up a question that the ThirdCircuit U.S. Court of Appeals avoided deciding in a 2011 case about thepunishment of social-media speech: Do schools have authority over off-campusspeech equivalent to their authority over in-school speech?
It’s a question the U.S. Supreme Court has so far dodged –including in this past term, refusing to accept the case of a Mississippihigh-school student expelled for a profane rap video shared on YouTube – butthat the justices inevitably will be forced to confront
The case began in October 2013, when a student atPennsylvania’s Central York High School reported finding a handwritten notethat said, “there is a bomb in the school.” The note prompted SuperintendentMichael Snell to order the building evacuated and to cancel classes for theday.
(The school also claims to have seen a student’s Twitterpost that “the bomb is supposedly in the stadium,” which school officials tookas a renewal of the threat, but the existence of that tweet is disputed.)
After school was dismissed and students were sent home, a15-year-old freshman referred to in court records as “R.L.” posted atongue-in-cheek observation to his Facebook wall: “Plot twist, bomb isn’t foundand goes off tomorrow.”
The post stayed up for only about four hours before R.L.voluntarily deleted it. But that was long enough for the post to come to theattention of local police, who notified the school administration.
The school did not cancel classes for the following day,bring in bomb-sniffing dogs or take any other additional precautions inresponse to R.L.’s post.
Nevertheless, Snell made a special trip that evening to anaway football game to find R.L. and interview him about his intentions.Although there was no evidence any bomb plot actually existed – much less oneinvolving R.L. – the superintendent issued him a 10-day disciplinary suspensionon the spot. After a district-level hearing, the suspension was lengthened to23 days – for a joke on Facebook, about a bomb that didn’t exist.
The student’s family challenged the lengthy suspension as aviolation of the First Amendment. In the real world outside of school, theyargued, a fleeting joke about violence would be regarded as constitutionallyprotected speech falling short of a “true threat.”
But Jones decided that, even when speech is created onpersonal time outside of school, it can be punished if shown to pose a realistic prospect of substantially disrupting school functions.
That “substantial disruption” threshold was recognized bythe U.S. Supreme Court in a 1969 case, Tinker v. Des Moines Independent Community School District, involving punishmentfor in-school speech during instructionaltime. Speech disseminated from home outside of school time is qualitativelydifferent. School lawyers have tried for years to convince federal judges toextend schools’ punitive authority so that all online speech is regarded as“in-school” speech, but the courts have hesitated to go that far.
Teeing up Tinker
The U.S. District Court for the Middle District ofPennsylvania is subject to precedent set by the federal Third Circuit, which isknown for being especially protective of students’ First Amendment rights. Thecircuit’s judges have been the most hesitant of any in the country to join thegrowing trend of applying Tinker tolegitimize school punishment of off-campus speech.
In a 2011 case heard by the entire (“en banc”) roster of 14 active judges, the court threw out a middleschool’s suspension of a student who crudely mocked her principal in a profilecreated on the MySpace social networking site. But the judges could not agreeon the larger question of whether the school’s disciplinary action should bemeasured by the Tinker standard or bysome new standard more protective of speech.
Six judges wrote that Tinkershould apply to all student speech regardless of where it is created andpublished, while five wrote that Tinkerwas insufficiently protective, failing to account for the distinction betweenspeech in a classroom and speech on personal time to a non-school audience.
Acknowledging that his approach went beyond Third Circuit precedent, Judge Jones nonetheless wrote that he was “comfortable” applying the Tinker principle to R.L.’s case, because (1) the speech was about violence, a uniquely acute concern for school policymakers and (2) the subject matter of the speech made it especially likely to reach the school and cause an adverse reaction there.
Johnson cited cases from the New York-based Second Circuit (Wisniewski v. Bd. of Ed. of Weedsport Central School Dist.) and the California-based Ninth Circuit (Wynar v. Douglas County Sch. Dist.) in which judges similarly granted schools broad latitude under Tinker to punish off-campus speech that portended violence against fellow students or school employees: “In light of the many school shootings that have tragically occurred over the past few decades, there can be no doubt that schools, parents, and students must take any suggestion of a bomb threat very seriously and with great cause for concern.”
Suggesting that online speech may be even more disruptive to school than in-class speech because of the potential breadth of the audience, Jones wrote, “a bright line distinction between on-campus and off-campusspeech in the context of Internet speech is both anachronistic and illogical.”
Lawyers for R.L. maintain that his speech, unlike the speech in those comparable cases, was clearly meant as gallows humor along the lines of “wouldn’t it be ironic if the school evacuated the building today but the bomb actually went off tomorrow,” which indicates no intent on the part of the speaker to commit any violence. An appeal is expected.
If the Third Circuit were to side with R.L.’s family, the case would be an especially opportune one for Supreme Court review, since the Court is most disposed to accept cases presenting a chance to reconcile a division among circuits. A ruling for R.L. would arguably place the Third Circuit in opposition, most directly, to the New Orleans-based Fifth Circuit, which sided with school authorities last fall in the case of the student rapper (Bell v. Itawamba County Sch. Bd.) that the justices recently declined to hear.
School “inappropriate behavior” code struck down as overbroad
Because no other school rule was a fit for R.L.’s behavior, the school disciplined him under a regulation penalizing “[b]ehavior or items brought to school that are inappropriate, that may cause a disruption to the school environment.”
The judge almost certainly should have struck down the discipline on due process grounds, since a regulation about in-school behavior gave R.L. no adequate warningthat social-media speech would be considered punishable. But Jones declined to do so, finding that R.L. should have been on notice that school prohibitions against disruptive behavior extended into his off-campus life.
The court did, however, hand the family a victory in invalidating the regulation as facially overbroad, because it applies to behavior that “may” cause disruption even with no reasonable likelihood that such a disruption was foreseeable.
This is a significant point that throws many hundreds of school disciplinary codes into question. It is alarmingly commonplace for schools to claim the authority to punish “inappropriate” speech — no matter where it occurs — even though no court has ever said that speech loses its constitutional protection simply because an authority figure subjectively deems it “inappropriate.”
Striking down the regulation did not end up helping R.L., however, since the judge found that his speech was within a constitutionally permissible application of the rule — even if the rule itself invited impermissibly broad misapplications to other speakers.
The case is R.L. v. Central York School District., No. 1:14-cv-00450.