Off-campus speech case to be reheard

Appeals court vacates Aug. decision favoring student

ARKANSAS ' A federal appeals court granted a petition for rehearing on Nov. 5 in a case where a student was punished for off-campus speech ' vacating an August opinion that was seen as a major victory for proponents of student rights.

In Doe v. Pulaski County Special School District, 263 F.3d 833 (8th Cir. 2001), the U.S. Court of Appeals for the Eighth Circuit limited a school's jurisdictional boundaries, stating that a school district 'cannot silence a student's personal expression that occurs off campus.

By agreeing to hear Pulaski before a larger panel of judges, the court has agreed to reconsider whether the written words of student Josh Mahan were protected by the First Amendment. No date has been set for the hearing.

In its 2-1 decision on Aug. 28, the court of appeals upheld U.S. District Judge George Howard Jr.'s November 2000 ruling that the written words of Mahan were protected under the First Amendment. Mahan, a junior high student who is represented by the American Civil Liberties Union, was expelled for one year after school officials obtained profane lyrics about his former girlfriend that he wrote at home.

The court's Aug. 28 opinion said that since Mahan's 'statements do not amount to a true threat, his speech is protected because he wrote the compositions at home, and the school district cannot silence a student's personal expression that occurs off campus.'

U.S. Circuit Judge David Hansen was the lone dissenting voice, saying the lyrics were a true threat. 'The young lady who was the target of the threats considered them to be very real; so real that she took to sleeping with the lights on,' he wrote.

The lyrics were never brought to school, nor did Mahan attempt to present them directly to his ex-girlfriend. According to court documents, they were stolen from his home by a friend who gave the lyrics to the former girlfriend. She then gave them to school administrators.

reports, Winter 2001-02