Federal appellate court reverses preliminary injunction barring Missouri district from disciplining students for online blog posts

S.J.W. v. Lee’s Summit R-7 Sch. Dist., No. 12-1727 (W.D. Mo. Oct. 17, 2012)

Abstract: A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit (ND, SD, MN, NE, IA, MO, AR) has ruled that a federal district court erred in granting two students a preliminary injunction barring a school district from suspending the students for posts to an online blog. The panel concluded that regardless of whether the speech occurred on-campus or off-campus, the speech should be analyzed under the substantial disruption standard established in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

Applying the Tinker standard to the students’ speech, the panel concluded that the students had failed to show the likelihood of success on the merits of their claim and that they failed to show that imposing the suspensions would irreparably harm the students. The panel rejected the students’ contention that off-campus speech is constitutionally protected and is not subject to school discipline even if the speech is directed at the school or specified students.

The panel also rejected the students’ arguments that their speech is protected under the federal Communications Decency Act. On the other hand, the panel found the school district’s assertion that the students’ motion for injunctive relief should be evaluated under the standard for a permanent injunction to be without merit. It, likewise, dismissed the school district’s argument that the district court had improperly shifted the burden of proof to the school district.

Facts/Issues: In mid-December 2011, Steve and Sean Wilson, twin brothers and students at Lee’s Summit North High School (LSNHS), created a website that contained a blog, the purpose of which “was to discuss, satirize, and ‘vent’ about events at LSNHS.” The Wilsons claim they set up the blog on their personal computer on their own time, and used a Dutch domain name so it would be difficult for peers to see it unless they told them about it. The parties dispute the extent to which the Wilsons used LSNHS’ computers to create, maintain, or access the blog.

The Wilsons’ posts contained a variety of offensive and racist comments as well as sexually explicit and degrading comments about particular female classmates, whom they identified by name. The racist posts discussed fights at LSNHS and mocked black students. A third student added another racist post. In the next days after the website and blog had been created, word spread quickly, and eventually the student body at large learned about.

Based on student and faculty reports, school administrators were able to tie the Wilsons to the website and blog. The Wilsons were initially suspended for 10 days, and the matter was referred to the school district. Following a hearing, an appeal by the Wilsons, and a second hearing, Lee’s Summit R-7 School District (LSR-7SD) suspended the Wilsons in January 2012 for 180 days from LSNHS, but allowed them to enroll in another school, Summit Ridge Academy, for the duration of their suspensions. In March 2012, the Wilsons filed suit in federal district court against LSR-7SD and moved for a preliminary injunction to lift the suspensions. The court granted the Wilsons’ motion for a preliminary injunction.

Following the Eighth Circuit panel’s denial of LSR-7SD’s expedited motion for stay pending appeal, the Wilsons returned to LSNHS. As a result of the preliminary injunction, the Wilsons have not completed their suspensions.

In its appeal of the preliminary injunction, LSR-7SD argues that the district court failed to make sufficient findings of irreparable harm and failed to make an appropriate finding of the Wilsons’ likelihood of success on the merits. LSR-7SD also argues that the preliminary injunction gave the Wilsons “substantially all the relief sought”, i.e., blocking the suspensions, and should have been treated as a motion requesting a permanent rather than a preliminary injunction.

Ruling/Rationale: The Eighth Circuit panel vacated the district court’s order and reversed the preliminary injunction granted to the Wilsons. The panel specifically stated that it did not find that the district court made inadequate findings; “rather, [the panel] conclude[d] that [the district court's] findings do not support the relief granted.” The panel found that the Wilsons were unlikely to succeed on the merits of their free speech claim under relevant case law. The panel also determined that district court’s findings did not establish sufficient irreparable harm to the Wilsons to justify a preliminary injunction.

Likelihood of Success on the Merits

The panel determined that the Tinker substantial disruption standard should be applied. It rejected the Wilsons’ argument that “all off-campus speech is protected and cannot be the subject of school discipline, even if the speech is directed at the school or specified students.” It also found unpersuasive the Wilsons’ alternative argument that, if Tinker applies, the speech was not directed at the school and did not create a substantial disruption.

Based on case law and the district court’s finding that the blog was “targeted at” LSNHS, the panel expressed its belief that “Tinker is likely to apply,” and that because the Wilsons’ posts caused substantial disruption, they were unlikely to succeed on the merits under Tinker. It pointed out that the Eighth Circuit in D.J.M. v. Hannibal Public School District #60 indicated that Tinker applies to off-campus student speech where it is reasonably foreseeable that the speech will reach the school community and cause a substantial disruption to the educational setting.

In addition, the panel cited decisions from the Second Circuit, Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), the Fourth Circuit, Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011), and the Third Circuit, J.S. v. Blue Mountain School District, 650 F.3d 915 (3d Cir. 2011), cert denied, 132 S. Ct. 1097 (2012), in support of its position that Tinker should apply and the Wilsons were unlikely to succeed on the merits.

According to the panel: “The parties dispute the extent to which the Wilsons’ speech was ‘off-campus,’ but the location from which the Wilsons spoke may be less important than the District Court’s finding that the posts were directed at Lee’s Summit North.” The panel found that like the cited cases, the Wilsons’ blog posts “could reasonably be expected to reach the school or impact the environment.”

Irreparable Harm

The panel found that the district court’s findings do not show that the Wilsons would have suffered irreparable harm in the absence of an injunction. As to whether LSR-7SD’s disciplinary action threatened irreparable harm to the Wilsons, the panel stressed that the district court “relied in part on the Wilsons’ argument that the academic work at Summit Ridge Academy was insufficiently challenging.” The panel found that argument unavailing because “the Wilsons earned academic credit and stayed on track for graduation in May 2013″ while attending Summit Ridge Academy.

The panel also was not persuaded by the Wilsons’ argument that their inability to try out for the LSNHS band during their suspensions constituted irreparable harm. The Wilsons argued that they might pursue music careers, and if they did not participate in band, they might jeopardize their music careers in college and beyond.  However, the panel found that any future harm to the Wilsons’ careers was speculative, and “[s]peculative harm does not support a preliminary injunction.”

Communications Decency Act

The panel then addressed the Wilsons’ argument under the Communications Decency Act (CDA), which states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The Wilsons argue that they were merely providers of a computer service, namely, the internet site containing the blog, and they cannot be treated as the “publisher or speaker” of the third student’s post. While the panel declined to address the question of whether the CDA protects high school students from school discipline, the panel concluded that the CDA would not necessarily protect the Wilsons even if the CDA applied because the lower court’s findings did not support the Wilsons’ contention that the disruption stemmed exclusively from the third student’s post, but instead “expressly found that the Wilsons’ own posts contributed to the disruption.”

S.J.W. v. Lee’s Summit R-7 Sch. Dist., No. 12-1727 (W.D. Mo. Oct. 17, 2012)

[Editor's Note: In March 2012, Legal Clips summarized an article in the Courthouse News Service, which reported on the Wilsons' lawsuit against LSR-7SD. That suit alleged the school district violated the Wilsons' First and Fourteenth Amendment rights when it suspended them for 180 days for setting up and running a nonviolent website on their own time and on their own computers. The suit asked the court to reinstate the students and remove the suspension from their permanent records.]

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