Federal appeals court issues significant ruling on student online speech

Tuesday, December 3, 2013

A recent federal appeals court decision upholding the expulsion of a student who allegedly made threatening online statements increases the possibility that the U.S. Supreme Court will finally tackle the thorny questions surrounding student online expression.

The 9th U.S. Circuit Court of Appeals ruled in Wynar v. Douglas County School District that Nevada high school student Landon Wynar’s online messages “presented a real risk of significant disruption to school activities and interfered with the rights of other students.”

Wynar had sent a series of online messages, which he always claimed were mere jests, to friends that talked about guns and shooting people on the anniversary of the Columbine and Virginia Tech massacres. One of his friends told a football coach, doing which eventually landed Wynar a 90-day expulsion. (See more background on the case.)

The opinion is significant for several reasons. First, it highlights the split in the federal circuits over the legal standard used to evaluate student online speech created off-campus. The 9th Circuit noted that its sister circuits were divided on how the U.S. Supreme Court’s landmark student-speech case involving black peace armbands, Tinker v. Des Moines Independent Community School District,  applies to speech created off-campus. Many circuits simply apply Tinker to such speech.  Other circuits have questioned whether there is a close enough nexus between the online speech and the off-campus expressive conduct. The 9th Circuit mentions the split but then determines that there is a difference between student threats and student speech that merely ridicules or lampoons others. The 9th Circuit reasons that “when faced with an identifiable threat of school violence, schools may take disciplinary action in response to off-campus speech that meets the requirements of Tinker.”

Second, the opinion is significant because it relies in part on the oft-ignored prong of the Tinker test – that school officials can limit student speech that interferes with the rights of others.   The vast majority of courts apply the traditional portion of Tinker, which asks when can school officials reasonably forecast that student speech will cause a substantial disruption of school activities.  In the Wynar case, the 9th Circuit emphasizes that the “invade the rights of others” part of Tinker also applies.  The 9th Circuit reasons that whatever the scope of this test, it clearly applies to student threats, which “represent the quintessential harm to the rights of other students to be secure.”

Third, the opinion shows that courts are very reluctant to second-guess the decisions of school administrators when faced with allegedly threatening speech. The very first sentence of the court’s opinion references the infamous school shootings in “Columbine, Santee, Newtown and many others.” In a close case, courts often will side with school officials and their need to provide safety for their student bodies.

Fourth, the opinion still emphasizes that the First Amendment applies even when student expression discusses violent themes. The 9th Circuit emphasized that “school officials must take care not to overreact and to take into account the creative juices and often startling writings of the students.”

Hopefully, the U.S. Supreme Court soon will provide more guidance to school officials in the area of student online speech.

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