Another Case Involving School Discipline for a Violent Post on a Social Networking Site — Wynar v. Douglas County School Dist.

September 16, 2013 · by Venkat Balasubramani · in Content Regulation

Mynar v. Douglas County School Dist, 2013 WL 4566354 (9th Cir. Aug 29, 2013) [pdf]

This is a school discipline case involving a student’s MySpace posts:

• “its pretty simple / i have a sweet gun / my neighbor is giving me 500 rounds / dhs is gay / ive watched these kinds of movies so i know how NOT to go wrong / i just cant decide who will be on my hit list / and thats totally deminted and it scares even my self”

• “i havent decided which 4/20 i will be doing it on / by next year, i might have a better gun to use such as an MI cabine w/ a 30 rd clip. . . .or 5 clips. . . .10?”

• “and ill probly only kill the people i hate?who hate me / then a few random to get the record”

• [in response to a statement that he would “kill everyone”] “no, just the blacks / and mexicans / halfbreeds / athiests / french / gays / liberals / david”

• [referring to a classmate] “no im shooting her boobs off / then paul (hell take a 50rd clip) / then i reload and take out everybody else on the list / hmm paul should be last that way i can get more people before they run away…”

• “she only reads my mesages and sometimes doesnt even do that. / shes #1 on 4/20”

• “ya i thought about ripping someones throat out with one. / wow these r weird thoughts… / then raping some chicks dead bodies to? no. maybe. idk.”

• “that stupid kid from vtech. he didnt do shit and got a record. i bet i could get 50+ people / and not one bullet would be wasted.”

• “i wish then i could kill more people / but i have to make due with what i got. / 1 sks & 150 rds / 1 semi-auto shot gun w/sawed off barrle / 1 pistle”

Friends of the student (Landon Wynar) became concerned and started buzzing about these posts. They went to their football coach and then the principal. Two police officers interviewed the friends, questioned Landon and took him into custody. Landon declined to have his parents present. He admitted writing the posts but claimed they were a joke.

The school board charged him with violating a “habitual discipline” statute and, after holding a hearing, expelled him for 90 days. Landon sued, claiming the expulsion violated his First Amendment rights.

The court recites the familiar line that students don’t shed their First Amendment rights “at the schoolhouse gate”. Outside of certain categories of speech, such as sexually themed speech, speech that could be school sponsored, or speech that arguably promotes drug use, the prevailing test courts use was set forth in Tinker, which requires “substantial disruption” from speech before it can be used a basis for discipline. However, it’s still unclear the extent to which Tinker applies to online speech posted from outside school grounds. A previous Ninth Circuit opinion had approved of discipline over off-campus speech without delving into whether the speech occurred on- or off-campus. Other federal appeals courts typically require some sort of nexus or foreseeability—that the speech will reach the school—before discipline can be imposed. The court says it need not set forth a precise test or adopt one of the tests from other federal appeals court because, here, any of the tests would be “easily satisfied”:

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.

In response to Landon’s argument that he was joking, the court says that it does not matter—it was reasonable for the school officials to take the threat seriously.

Finally, the court says that Landon’s speech also threatened other students, so it could properly form the basis for discipline because it infringed on third party rights. The court is careful to say that merely being offensive is not necessarily a sufficient basis to exclude speech or discipline the speaker, but it declines to elaborate on any standards.

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The court talks about several categories of speech where courts have tolerated a greater degree of incursion into the First Amendment rights of students. It makes sense to add any threat of violence that is greater than the garden-variety schoolyard threat to the list, because that’s most likely where courts will come out. Courts have gone either way on student speech that aims to poke fun at teachers or administrators, but I suspect there is much less divergence of opinion when it comes to posts that reference violence in school. The opinion notes school shootings that have occurred over the years starting with Columbine, and in the face of this, school administrators will be overly cautious. Arguably, they should only take the necessary security measures to confirm that the student who engaged in this type of speech is not a threat, but as the court here notes, courts won’t necessarily micromanage the particular reaction of the school. On the bright side for speech, the court takes pains to note that this is a fact-specific decision. Administrators are granted leeway when the threat of school violence is involved, but this decision will not necessarily have broader applicability.

It’s also worth noting that the posts in question may not constitute a “true threat,” as they had a conditional tone to them. While that’s relevant to whether the speech in question can be criminalized (see, e.g, my post from last week on another school speech case: “High Schooler’s Facebook Post Can Constitute the Crime of Menacing – In re P.T.“), that is not determinative as to the question of whether the school can properly use it as a basis for discipline.

Other coverage:

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

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

Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation–Doninger v. Niehoff

Nursing School Can’t Expel Students for Posting Photo to Facebook–Byrnes v. Johnson County CC

Sending Politically Charged Emails Does Not Support Disturbing the Peace Conviction — State v. Drahota

Private Facebook Group’s Conversations Aren’t Defamatory–Finkel v. Dauber

Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles

Private High School Not Liable for Cyberbullying–DC v. Harvard-Westlake