Section 230 Doesn’t Apply to High Schoolers’ Online Bullying–Kutchinski v. Freeland Community School District

HK built an Instagram account impersonating a teacher. He “made one innocuous post on the account.” He unwisely shared the login credentials with two classmates, KL and LF. Those classmates made “incendiary posts” about other teachers (and tagged those teachers) and another student. “H.K. monitored the account and viewed the posts himself. H.K. did not delete them. Instead, he joked with K.L. and L.F. about the posts and the three accepted 18 requests to follow the account.” The next schoolday, the account spurred the typical hallway chatter and left one of the targeted teachers crying. HK deleted the account midday.

HK received a school suspension for “gross misbehavior for his posting a fake Instagram account impersonating a teacher (under an assumed name), posting to that account as the teacher, and sharing the username and password with other students.” HK sued the school district for free speech deprivations. The district court sided with the school district. The appeals court affirms.

The court summarizes its application of Mahanoy and some precedent cases involving group bullying online:

when a student causes, contributes to, or affirmatively participates in harmful speech, the student bears responsibility for the harmful speech. And because H.K. contributed to the harmful speech by creating the Instagram account, granting K.L. and L.F. access to the account, joking with K.L. and L.F. about their posts, and accepting followers, he bears responsibility for the speech related to the Instagram account.

HK said the court’s test violates Section 230 because it holds him responsible for the content posted by KL and LF. The court responds:

To the extent § 230 applies, we do not treat H.K. as the “publisher or speaker” of the posts made by K.L. and L.F. Instead, we have found that H.K. contributed to the harmful speech through his own actions.

But what actions are those? If KL and LF hadn’t added their content, it wouldn’t have stirred any hallway chatter at all (it just had the one “innocuous” post from HK), and the school could not have disciplined him for that because the innocuous account didn’t pose a substantial risk of disrupting school. The court makes this clear:

Defendants reasonably forecasted that a fake Instagram account that impersonated a Freeland teacher and directed sexual and violent posts at three Freeland teachers and a student would substantially disrupt normal school proceedings.

None of that content came from HK. The court also cites the crying teacher, who was not referenced in the content from HK. Thus, HK’s suspension is due purely to the content added by KL and LF, which means HK is being punished for third-party content. That’s an obvious Section 230 problem.

Perhaps the court means that HK should be punished for his “action” of giving authoring rights to third-party classmates or accepting new followers, but that can’t be the basis for disqualifying Section 230 because every UGC service necessarily does that. HK also did not remove the content from KL and LF, but Section 230 also protects the decision not to withdraw third-party content.

That basically leaves HK liable for joking with KL and LF about their content, and that’s too slender of a basis for liability. From my perspective, the court’s rejection of Section 230 is an obvious mistake.

The court also rejects HK’s freedom of association claim because the school concluded that HK acted jointly with his peers in their misbehavior.

The court’s ruling is wrong, but I’m not thrilled with HK’s choices either. As I concluded my post on the district court ruling:

I don’t have a ton of sympathy for GenZers who think that online accounts impersonating teachers are fresh or novel. GenXers were pulling similar stunts 40+ years ago (maybe using mimeograph machines, but whatever), and I’ve been blogging virtually identical cases for 17+ years. Apparently, despite the venerable history of such students, each crop of 14 year old boys must independently traverse this path themselves

Case Citation: Kutchinski v. Freeland Cmty. Sch. Dist., 2023 U.S. App. LEXIS 13687 (6th Cir. June 2, 2023)

Selected related blog posts:

* What Consequences for High School Freshmen’s Racist Online Petition?–Plaintiff A v. Park Hill School District
High School Students Can Be Disciplined for Racist Private Instagram Account–Chen v. Albany School District
School Can Discipline Student for Impersonating Teacher Online, Even if Other Students Added the Worst Content–Kutchinski v. Freeland School District
School Can’t Discipline Student For Off-Campus Snapchat Messages–Mahanoy School District v. BL
High School Can’t Expel Student for Sharing Memes in Private Snapchat Conversation–JS v. Manheim Township School District
More Teenagers Mistakenly Think “Private” Chat Conversations Will Remain Private–People v. JP
Must Universities Shut Down Constitutionally Protected Speech Forums That Also Enable Student Harassment?
Twitter Isn’t Liable for Impersonation Account–Dehen v. Doe
Court Affirms Stalking and Harassment Conviction for Tagged Tweets–In re AJB
University Defeats Cyberbullying Lawsuit Related to Yik Yak–Feminist Majority v. UMW
Facebook Isn’t Liable for Fake User Account–Caraccioli v. Facebook
University Rejection of Students’ Marijuana-Themed T-Shirt Violates First Amendment–Gerlich v. Leath
Student Disciplined for Posting Threatening Mashup Video to Instagram–AN v. Upper Perkiomen School District
Tweeting Death Threats Isn’t Juvenile Delinquency–In re R.D.
University Cannot Discipline Student for Off-Campus Tweets
Qualified Immunity Bars Claims Based on Search of Student’s Facebook Account and Discipline for Private Messages
School District Wrongly Disciplined Student for a Two Word Tweet
First Amendment Bars School Discipline For Student’s Rap Video About School Coaches
Two Student Threat Cases Illustrate Gross Disparity in Treatment of Student Speech
Ill-Advised Student YouTube Video Leads to Conviction For Misusing Computerized Communication System–In re Kaleb K.
University May Be Liable for Improper Access to Student’s Facebook Photos – Rodriguez v. Widener Univ.
Crass and Offensive Tweets by Student May not Justify Suspension — Rosario v. Clark County School Dist.
Misguided Catfishing Scheme Leads to Discipline of College Students — Zimmerman v. Ball State
Another School Violated a Student’s First Amendment Rights by Disciplining Her For Facebook Posts — R.S. v. Minnewaska Area School Dist. No. 2149
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
Nursing Student’s Blog Post Doesn’t Support Expulsion–Yoder v. University of Louisville
Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page–Draker v. Schreiber
Court Upholds Student Suspension For YouTube Video of Teacher
Teenager Busted for Creating Fake “News” Story