Two Student Threat Cases Illustrate Gross Disparity in Treatment of Student Speech

January 21, 2014 · by Venkat Balasubramani · in Content Regulation

Two decisions from different jurisdictions illustrate the drastically divergent approaches the law takes in dealing with alleged threats from students on social media.

In one case, a middle school student (A.N.) was tweeting with her friend Smith (who lost her boyfriend to another student). [Eric’s comment: cue the music. Dun-Dun-DUNNN. There’s nothing quite like the drama of a junior high school love triangle.] Smith tweeted that she was going to “shoot [the interloper] in the face,” along with an emoji of a girl’s face and a gun, and the hashtags #nolie and #hopeshereadsthis. A.N. tweeted back saying that she would help Smith. She included various smiley faces and #isweear. In a later tweet to Smith, A.N. said “Good Luck. Shoot her in the face,” followed by pictures of a face and a gun.

In another case, a student, Joshua L., posted the following to Facebook:

[I]’ll put a bullet into both of your heads and go to jail for it because [I] have enough balls to kill ya, so don’t talk . . . because the next time [I] will be holdin, and there won[‘]t be shit talk for long befor[e] [I] rip a hole in your gut pull everything out and stomp it out. [F]orgive me if you don[‘]t like my words but [I] don[‘]t give a fuck because the next time [I] see you there will be blood on the floor and some shit . . . on the floor and some shit stolen from you gust [sic] like you did to me. [T]his goes out to [E.V.] and [Llloyd S.]. [Y]ou butt pirate faggots…

Joshua L. was not friends with either E.V. or Lloyd S. and did not direct the message to them in any way.

Think they would be facing roughly similar legal consequences for their death threats, right? Unfortunately not. A.N. got ten days diversion to an alternate school (originally forty-five, but reduced) and was forced to participate in counseling. She brought a civil rights claim against administrators which the court said could go to trial. In other words, she has a possible claim for relief against the school administrators for disciplining her. Joshua L., on the other hand, was convicted of making an unlawful criminal threat (a felony) and declared a ward of the court.

The tenor of the statements differ of course, and maybe it’s attributable to the difference in jurisdiction, gender, age, or medium, but it’s tough to see how the law should accord the two speakers such disparate treatment.

Case No. 1: Nixon v. Hadrin County Board of Ed, et al., 2013 U.S. Dist. LEXIS 180591 (W.D. Tenn. Dec. 27, 2013). This is the case brought by A.N. against school administrators. The court engages in a detailed analysis of Tinker and subsequent cases addressing First Amendment standards for punishment based on student speech. The court looks at Morse (the “bong hits for Jesus” case) as well as several cases asking the question of whether student speech on social media is sufficiently connected with the school as to warrant discipline or punishment. Ultimately, the court concludes that the speech in question here “had no connection” with the school and did not result in any demonstrable disruption. Accordingly, the court denies summary judgment on the First Amendment claim and allows A.N.’s First Amendment claims to go to trial. A.N. and her parent brought a slew of other claims, including a due process and an Eighth Amendment (excessive punishment) claim, but the court rejects these.

Case No. 2: In re Joshua L., B245686; 248397 (Cal. Ct. App. Jan.8, 2014). Here, Joshua L. told authorities that he was “just venting,” and while E.V. [the victim] testified that he was “kind of offended” at the statement and didn’t believe that Joshua L. “would have” carried out the threat, the court still says that there was sufficient evidence to conclude that Joshua L. intended that E.V. would take his statement as a specific threat. Interestingly, much of the court’s discussion focused on whether Facebook was used in this circumstance as a “diary” or a means of one-to-one communication. As with prior cases, the defendant argued that the confusing nature of Facebook’s privacy settings excused his failure to properly utilize those settings to set the post to “private.” As with prior cases, the court rejects this argument. Joshua L. argued that if he wanted to communicate the threat directly, he could have taken simple steps, such as tagging E.V. or emailing him the post and he did neither. The court rejects this argument as well, saying that the fact that Joshua L. sent it out to a large group of friends (120) and indicated “this goes out to [E.V.]” are indicative that he intended the threat to reach E.V.

Finally, the court examines and rejects Joshua L.’s First Amendment argument. The First Amendment does not protect so-called true threats—statements “where the speaker means to communicate a serious expression of an intent to commit” a threat of violence. The court says this statement satisfies this standard.

State statutes regarding student speech: We’ve seen a few examples of state statutes that describe when, and for what, speech administrators can suspend or discipline students. The statutes did not get much discussion in the two cases above; in Nixon, the court briefly cites to the statute (implicitly acknowledging that First Amendment standards trump the statute anyway), and the court in Joshua L. does not mention California’s statute on this topic. That statute, which you can access here, gets at things such as the creation of “burn pages,” e-personation, and threats. It does limit the types of speech that can be the basis of discipline to that which (1) creates fear of harm to person or property; (2) results in a “substantially detrimental effect” on physical or mental health; (3) causes interference with academic performance or ability to participate in school activities or benefits. In the realm of this type of legislation, I think we’ve seen far worse (e.g., statutes that purport to regulate speech that “annoys” or “alarms” another). Future cases will hash out whether the California statute adequately tracks the First Amendment, but it’s worth also recognizing that schools do face a bit of a Catch-22. They have a legal obligation to offer equal educational conditions, which includes the obligation to prevent certain types of harassment.

[Eric’s comment: for more on the Catch-22 and the California statute, see this article by Rachel Swan.]
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Coming back to these cases, no one denies that administrators should not take threats of violence with the utmost seriousness. Notwithstanding that students can be held liable under criminal statutes for statements that satisfy the First Amendment true threat test, administrators may want to do some soul-searching and confirm that this punishment accomplishes educational or administrative ends. Discipline is one thing, but administrators should be particularly hesitant to impose criminal penalties in this context, given the blurry overlap between juvenile social media shenanigans and true threats, and the consequences that students may face from convictions under criminal statutes.

As the numerous cases we’ve blogged about illustrate, courts are across the board on treatment of student speech. To begin with, there is little uniformity on when online speech comes under the administrator’s jurisdiction. Eric’s post from 2010 about a pair of Third Circuit cases looks at a pair of tough-to-reconcile cases that deal with when there’s a sufficient nexus between student online speech and the school. (“Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles“.) With respect to the content of the speech itself we’re seeing similarly inconsistent treatment–what is taken for a playful gossiping between friends in one case is treated as a threat warranting criminal sanctions in another.

Case citations:

Nixon v. Hadrin County Board of Ed, et al., 2013 U.S. Dist. LEXIS 180591 (W.D. Tenn. Dec. 27, 2013)

In re Joshua L., B245686; 248397 (Cal. Ct. App. Jan.8, 2014)

Creating Parody Social Media Accounts Doesn’t Violate Computer Fraud & Abuse Act – Matot v. CH

Logging Into Someone Else’s Facebook Account and Posting Messages on Their Friends’ Walls Could Be Identity Theft — In re Rolando S.

Employee’s Claims Against Employer for Unauthorized Use of Social Media Accounts Move Forward–Maremont v. SF Design Group

Accessing Ex-girlfriend’s MySpace Account and Posting Offensive Content Results in Conviction

Griping Patient Goes Too Far Posting Fake Content in Doctor’s Name–Eppley v. Iacovelli

Mortuary Student Can Be Disciplined for Facebook Posts–Tatro v. University of Minnesota

Suspension for Facebook/YouTube Rap Video Critical of High School Coach Does not Violate First Amendment – Bell v. Itawamba County School Board

Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech–TV v. Smith-Green

Mortuary Sciences College Student Disciplined for Threatening Facebook Posts–Tatro v. University of Minnesota