When Is a Public School Student’s Online Speech About School Violence Cause for Concern?

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I’ve written, here at Justia’s Verdict, a number of times about cases regarding the First Amendment rights of public school students. I think that these cases are especially important because they can be formative, in either positive or negative ways, for the student or students who are directly affected by them, and for their classmates, as they watch the case unfurl.

The leading Supreme Court precedent in the school speech area is Tinker v. Des Moines Indep. Cmty. Sch. Dist. Almost always, in studying the cases governed by Tinker, I’ve found that school administrations tend to overreact regarding controversial but also First-Amendment-protected student speech, and thus, they do not follow Tinker’s dictates as faithfully as they should.  In such cases, students are therefore often wronged– at least until their parents, or a public interest group such as the ACLU, finds them a good attorney. But a recent case that was heard by the U.S. Court of Appeals for the Ninth Circuit, Wynar v. Douglas County Sch. Dist., is significantly different from these other school-speech precedents that I’ve previously commented on, as I will explain.

The Facts of Wynar

The Wynar case arose after Nevada public high school sophomore Landon Wynar, while at home, sent a series of Instant Messages (IMs) to his friends on MySpace bragging about the weapons he owned, which included various rifles, including a Russian semi-automatic and a .22 caliber rifle; threatening to shoot specific classmates; and invoking the Virginia Tech Massacre.

Some of those friends, unsettled by Landon’s remarks, rightly alerted school authorities, and as a result, Landon was expelled from school.  His defense, in the expulsion proceeding, was that he was only joking. Although he could have called witnesses in his defense in that proceeding, he did not do so.

The Ninth Circuit panel affirmed the district court’s grant of summary judgment in favor of the school district, despite Landon’s First Amendment defenses. The result here is unsurprising, as Landon’s MySpace messages eventually centered on a future school shooting centering around the dates of Hitler’s birth, the Columbine massacre, and the Virginia Tech Massacre.

Landon challenged the expulsion on First Amendment grounds.  However, the U.S. District Court granted summary judgment in the school’s favor, while also noting that the U.S. Supreme Court has not yet ruled on the law applying to the off-campus speech of public school students when that speech pertains directly to the public school.

However, as the District Court noted, there is precedent in the Ninth Circuit that is closely relevant to the Wynar case.

The Key Ninth Circuit Precedent

In that closely relevant case, LaVine v. Blaine Sch. Dist., the Ninth Circuit upheld the temporary, emergency expulsion of a student who had written a first-person poem, at home, about a school shooting and a subsequent suicide.  Applying Tinker’s test, the court found that the poem fulfilled the criteria of Tinker: It constituted speech that might reasonably lead school authorities to forecast substantial disruption of, or material interference with, school activities, or that collides with the rights of other students to be secure and to be let alone.

Does Off-Campus Student Speech Come Within the Tinker Test?

An interesting facet of public school cases, in the age of the Internet, is that students may carry on the same conversation with their peers as they travel from school to home, and vice-versa, via a variety of media.  That reality raises an interesting question as to whether Tinker’s reach is long enough to reach such conversations.

As the Wynar court notes, a number of federal Circuits (the Second, Fourth, and Eighth) say yes, while the Third and Fifth have left the question open thus far.  My sense is that, in the end, the test will have to relate to the subject matter of the conversation (that is, whether it is school-related or non-school-related), rather than the physical or virtual location of that conversation.

Returning to Wynar itself, there is little doubt that if the messages that Wynar had sent to his friends come under the Tinker test, even despite the fact that they were posted on MySpace, because of their school-related subject matter, then those messages should be deemed to be speech that might reasonably lead school authorities to forecast the substantial disruption of, or the material interference with, school activities, and/or speech that collides with the rights of other students to be secure and to be let alone.

In the end, Landon Wynar lost his case due to a number of bad facts.  Important among them were (1) the fact that, in the court’s eyes, Landon’s MySpace messages could be seen as a plan to attack the school; (2) the fact that Landon possessed weapons that he could use to carry out that possible plan; (3) and the fact that the consequences of such a plan, if they ensued, would be catastrophic.

These three key facts, along with other facts from the case, convinced the Ninth Circuit panel to rule in the school’s favor and thus to uphold the expulsion – and rightly so. Many school speech cases are just that: A dispute about a student’s comments or a student body’s protests, centering on events at the school. Landon’s case, unlike other school speech cases, has much higher stakes, for it has a marked undertone of possible future school violence. Landon needs some counseling now, while he is still young, in order to ensure that he doesn’t someday translate his First Amendment-protected thoughts and comments, over time, into something much more dangerous.

  • evilunderlord

    “as they watch the case unspurl.”
    Is that really something our children should be doing? Furling and unfurling, now, I could see. But watching things unspurl? Maybe best done in private.