Facebook and Online Threats - Major Court Decisions
The Fifth Circuit Court of Appeals, in a lengthy 13-3 en banc decision, Bell v. Itawamba County School Board, ---F.3d. ---, 2015 WL 4979135 (5th Cir. 2015), analyzed a high school student suspended for Facebook and YouTube postings of a rap he had composed and performed and ultimately upheld the school district's discipline of the student, including a placement in an alternative school. The case pushes the Tinker standard for student "free speech" in even stronger protection of school district disciplinary action for off campus speech.
The facts of the case are interesting and full of the details that make for a tense resolution. Itawamba High School made national headlines months prior to Bell's discipline when it canceled senior prom as a senior lesbian student prepared to bring her girlfriend and wear a tuxedo. Then Taylor Bell, a.k.a. "T-Bizzle", after hearing some female classmates complaining about coaches ogling them and making inappropriate comments, composed and recorded lyrics that were allegedly "meant to warn the coaches that their alleged behavior could incite a reprisal from the girls' relatives." ["looking down girls' shirts/ drool running down your mouth/ messing with wrong one / going to get a pistol down your mouth . . . middle fingers up if you can't stand that nig!$#/ middle fingers up if you want to cap that nig!#*."]
The balance of student freedom of speech and appropriate school authority has been long guided by Tinker v. Des Moines Independent Community School District. The Tinker standard requires that a school reasonably forecast a substantial disruption of the educational environment in order to regulate student speech. That standard has been analyzed in multiple Supreme Court rulings, mostly before 2007, where the speech that schools were regulating was mostly on campus and indisputably part of the educational environment. Then, in Morse v. Frederick, which in a limited view holds that schools can censor language it believes can "reasonably be regarded as encouraging illegal drug use," the Supreme Court generally expanded its analysis and refused to accept the student's argument that his off campus speech was not school speech that could be regulated by the school, and therefore recognized that Tinker's "schoolhouse gate" sometimes extends off campus to school-sponsored events.
Enter social media, where the boundaries between school speech and off-school speech are entirely blurred, and exit any clear analysis from the Supreme Court. Even where social media sites are strictly regulated in the school environment, the general student body's awareness of social media events have generally led courts to hold in favor of school district discipline where this awareness can be forecast as a substantial disruption to the school environment.
Although nearly all the federal courts have, the U.S. Supreme Court has not forayed into the online student speech First Amendment analysis. The U.S. Supreme Court did issue a case relating to Facebook speech this summer, but Elonis v. United States assessed the criminal liability of an adult Facebook-er rapping threats including one against a school: "And hell hath no fury like a crazy man in a Kindergarten class. The only question is . . . which one?" After being convicted for these "threats" under a federal statute, the Supreme Court took the case and provided a long analysis on whether the rap was a "true threat" and if it included the necessary intent to make a threat, or whether it was sufficient that a reasonable person would view the communication as a threat. The Court majority decided that Elonis and other criminal defendants must transmit communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat, in order to be criminally convicted.
There were multiple harsh dissents, including Justice Thomas, who stated that the majority's failure to address the recklessness (whether recklessness of an individual issuing statements that could be perceived as a threat) throws everyone from appellate judges to everyday Facebook users into a state of uncertainty. He advocated for the more "general intent" standard which the Government also advocated in the Elonis case and a majority of Federal Circuit Courts had approved - which means knowing that communication contained a threat only requires that the defendant knows the words used in the communication along with their ordinary meaning in context. Justice Thomas's dissent specifically references the school-context "[b]ut there is nothing absurd about punishing an individual who, with knowledge of the words he uses and their ordinary meaning in context, makes a threat. For instance, a high-school student who sends a letter for his principal stating that he will massacre his classmates with a machine gun, even if he intended the letter as a joke, cannot fairly be described as engaging in innocent conduct", before pointing to the majority and claiming its stance on Elonis' school shooting plans couldn't stand without a heightened mental state.
Despite the disagreement within Court, the holding sheds some light in our societal-wide debates around social media and "artistic expression" of any and all nature and the place that government, and the criminal system, is in in terms of constitutionally assessing criminal liability under "true threat" analysis.
In the school-setting, districts are constantly assessing threats under school policies, bullying and harassment statutes, and federal and state anti-discrimination statutes. The goal is to appropriately address true threats through education and student discipline long before any heightened criminal standards are in play - and districts have far different guidance based more around the "reasonable person" standard that the Court discussed would be appropriate in the civil context. Think back to the Tinker standard discussed above, and compare it and Elonis to another 2015 decision out of the 9th Circuit, Burge v. Colton School District. In Burge, an eighth-grade student ranted to a friend on Facebook that his health teacher was "just a b#$!h" and "she needs to be shot". The U.S. District Judge ruled that the student "did not intend to threaten or otherwise communicate with [the teacher] and did not seriously believe that [the teacher] should be shot."
Burge received a three-and-a-half day in school suspension after another parent anonymously supplied a printout of the exchange to the principal of the middle school. His parent brought suit against the school, arguing that his free-speech rights had been violated.
The Court applied a 2013 decision, Wynar v. Douglas County School District, in which the 9th Circuit Court of Appeals held that students can be disciplined at school for off-campus speech that causes a disruption at school; and applied the long-standing Tinker standard that the speech could be restricted only if it would cause "a material and substantial interference with appropriate school discipline."
In the Burge case, the Court based its finding most heavily on the fact that the school did not take any actions after learning of the threat "upon which a rational juror could find that it reasonably foresaw a threat to appropriate school discipline." The Court said that the school was provided with a print-out of the online exchange six weeks after it occurred, and neither the principal or superintendent ever asked the student if he or his parents had access to guns, never contacted the police, never had the student evaluated by a mental health professional, never discussed the comments with other teachers than the one who was the subject of the comment, and never investigated whether he made similar, subsequent comments. The Judge said that "[w]ithout taking some sort of action that would indicate it took the comments seriously, the school cannot turn around and argue that Braeden's comments presented a material and substantial interference with school discipline." The judge ordered the district to remove the suspension from the student's school records and to pay his family's attorney's fees and costs.
This analysis shows that the long-standing Tinker's, "material and substantial disruption" standard continues to govern in school-speech cases, but also shows that the "reasonable person" standard that we look to in the school discipline setting is going to require certain actions by school districts to demonstrate a reasonable forecast of disruption.
Taking the Elonis and Burge cases together, we can see that consideration of Facebook threats looks different in the criminal conviction process and the school-setting. In the school-setting, we are able to consider what reasonable third-parties perceive the threats to be, but districts must take some sort of action that comports with a reasonable belief that there will be a material and substantial inference with school discipline in order to curtail a student's free-speech rights under the First Amendment. Noting what those actions are or might look like from the Burge analysis, we can fashion more appropriate investigations and responses to protect from potential First Amendment claims, before issuing appropriate discipline for inappropriate online behavior.
Notably, the 5th Circuit did not discuss the actions taken in investigating Bell's rap before upholding his suspension, and so we can see where the need for clarity from the U.S. Supreme Court is building.
Ultimately, many education policy commentators are just as upset with the lack of clarity in the issue of dealing with online threats as Justice Thomas was in his dissent. Grappling with these constitutional issues is something many feel the U.S. Supreme Court has been too cautious to undertake. School districts are not able to avoid grappling with these issues daily, and so, as administrators consider the impact of any student statements, on or off school property, and the impact on the school environment, it is important to undertake a thorough investigation and reasonable steps to consider and/or address the impact on the school environment, in order to exercise appropriate authority to discipline students.