Federal appellate court rules Missouri school district did not violate student’s free speech rights by disciplining for off-campus online true threats
D.J.M. v. Hannibal Pub. Sch. Dist., No. 10-1428 (8th Cir. Aug. 1, 2011)
Abstract: The U.S. Court of Appeals for the Eighth Circuit, in a three-judge panel decision, has ruled that a school district that suspended a student for off-campus instant message communications with a classmate did not violate the student’s free speech rights because the student’s speech constituted unprotected true threats. The panel also concluded that the school district was justified in disciplining the student under the substantial disruption standard established in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), based on Tinker’s language that school officials may discipline students for speech that occurs ”in class or out of it,” which “might reasonably [lead]school authorities to forecast substantial disruption of or material interference with school activities.”
Facts/Issues:D.J.M., a student at Hannibal High School (HHS), sent an instant message (IM) on his home computer to a classmate, C.M., on her home computer saying that he was going to get a gun and kill certain students. C.M. notified school authorities, who informed local law enforcement. D.J.M. was briefly detained and subsequently referred by the juvenile court to a hospital for psychiatric treatment. Hannibal Public Schools (HPS) then suspended him for the remainder of the school year. D.J.M. filed suit against HPS, alleging violation of his First Amendment free speech rights.
A federal district court ruled that D.J.M.’s speech was not protected by the First Amendment because it was a “true threat.” The court also held that even if his speech enjoyed First amendment protection, HPS was justified in disciplining the student under Tinker’s substantial disruption standard. It found there had been a substantial disruption in the school because many concerned parents called in and threatened to remove their children. It also pointed out that HHS significantly increased its security. Regarding school officials’ authority to regulate off-campus speech, the court stated, “Several courts of appeal, including this circuit, have applied ‘school speech’ law to cases where the communications occurred off of school grounds but their effects reverberated to the classroom.”
Ruling/Rationale: The Eighth Circuit panel affirmed the lower court’s decision. The panel first acknowledged that none of U.S. Supreme Court’s four decisions addressing student speech, Tinker, Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), and Morse v. Frederick, 551 U.S. 393, 397 (2007), occurred in the context of student threats of violence, or conduct outside of school or a school sanctioned event. The Eighth Circuit, however had addressed the issue of a student threat that occurred off-campus in Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002) (en banc).
Doe defined a true threat as a “statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another.” The speaker must have intended to communicate his statement to another, a requirement which is satisfied if the “speaker communicates the statement to the object of the purported threat or to a third party.”
The panel rejected D.J.M.’s contention that Doe’s language regarding a third party was merely dicta, not part of the Eighth Circuit’s holding, pointing out that it was a third party that relayed the threat to the potential victim and brought it to the attention of a school official. It found D.J.M.’s reliance on the decision in Porter v. Ascension Parish Sch. Bd., 393 F.3d 608 (5th Cir. 2004), cert. denied, 544 U.S. 1062 (2005), misplaced because the facts in the present case were dissimilar to those in Porter. Specifically, the alleged perpetrator in Porter had no intent of communicating a threat to anyone at school, as his sketch depicting violence remained at home for two years and was brought “unwittingly” to school by his brother.
The panel, instead, found the Eighth Circuit’s decision in Riehm v. Engelking, 538 F.3d 952, 962 (8th Cir. 2008), a closer fit because of the specificity of detail and the graphic description of violence. As a result, it concluded that there was ”no genuine dispute of material fact regarding whether [D.J.M.'s] speech could be reasonably understood as a true threat.” The panel, likewise, dismissed his argument that there was a genuine issue of material fact as to whether his statements were sufficiently serious to be perceived as a true threat. It, therefore, held that HPS officials ”did not violate the First Amendment by notifying the police of D.J.M.’s threatening messages and later suspending him.”
Turning to the question of whether DPS could justify its decision to suspend D.J.M. based on Tinker’s substantial disruption standard, the panel cited Wisniewski v. Weedsport Central Sch. Dist., 494 F.3d 34 (2d Cir. 2007), a case that also involved the use of instant messaging technology off-campus to convey threats of violence in the school. It noted that the technology allows students both inside school and out to communicate rapidly and widely. It also acknowledged, however, that ”[s]chool officials cannot constitutionally reach out to discover, monitor, or punish any type of out of school speech.”
The panel cited Tinker’s language justifying the restricting of student speech that occurs “in class or out of it,” if school officials “… might reasonably forecast substantial disruption of or material interference with school activities.” It then found that, like Wisniewski, where the Second Circuit panel found the “message had in fact reached the school,” it was reasonably foreseeable that the instant message communications would come to the attention of school officials and create a risk of substantial disruption within the school environment.
The panel concluded:
“The [Supreme] Court has not yet had occasion to deal with a school case involving student threats or one requiring it to decide what degree of foreseeability or disruption to the school environment must be shown to limit speech by students. These cases present difficult issues for courts required to protect First Amendment values while they must also be sensitive to the need for a safe school environment.”
D.J.M. v. Hannibal Pub. Sch. Dist., No. 10-1428 (8th Cir. Aug. 1, 2011)
[Editor's Note: In July 2011, Legal Clips reported on a Fourth Circuit panel's decision in Kowalski v. Berkeley County Sch. ruling that a school district's discipline of a student for off-campus Internet activity did not violate the student’s First Amendment free speech rights. The panel also rejected the student’s claims that her procedural due process rights were violated.
The panel concluded that the school district had authority under Tinker's substantial disruption standard to discipline the student for speech that originated off-campus because, given the reach of the Internet, it was reasonably foreseeable that the speech would reach the school.
The number of off-campus online student speech cases continues to grow. Federal Circuit Courts of Appeal facing cases with varying facts all seem to share an affinity for relying on Tinker in some fashion.]