Pennsylvania court extends school's disciplinary reach into student's off-campus Facebook joke



A Pennsylvania student’s joking Facebook post attempting to make light of a school bomb threat landed him a 23-day suspension. Now, it may put him on a path to the U.S. Supreme Court.

In an opinion issued May 3, U.S. District Judge John E. Jones III decided that the student’s post was unprotected by the First Amendment, because school administrators reasonably perceived the speech as substantially disruptive to school operations.

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Jones’ ruling squarely tees up a question that the Third Circuit U.S. Court of Appeals avoided deciding in a 2011 case about the punishment of social-media speech: Do schools have authority over off-campus speech equivalent to their authority over in-school speech?

It’s a question the U.S. Supreme Court has so far dodged – including in this past term, refusing to accept the case of a Mississippi high-school student expelled for a profane rap video shared on YouTube – but that the justices inevitably will be forced to confront

The case began in October 2013, when a student at Pennsylvania’s Central York High School reported finding a handwritten note that said, “there is a bomb in the school.” The note prompted Superintendent Michael Snell to order the building evacuated and to cancel classes for the day.

(The school also claims to have seen a student’s Twitter post that “the bomb is supposedly in the stadium,” which school officials took as a renewal of the threat, but the existence of that tweet is disputed.)

After school was dismissed and students were sent home, a 15-year-old freshman referred to in court records as “R.L.” posted a tongue-in-cheek observation to his Facebook wall: “Plot twist, bomb isn’t found and goes off tomorrow.”

The post stayed up for only about four hours before R.L. voluntarily deleted it. But that was long enough for the post to come to the attention of local police, who notified the school administration.

The school did not cancel classes for the following day, bring in bomb-sniffing dogs or take any other additional precautions in response to R.L.’s post.

Nevertheless, Snell made a special trip that evening to an away football game to find R.L. and interview him about his intentions. Although there was no evidence any bomb plot actually existed – much less one involving R.L. – the superintendent issued him a 10-day disciplinary suspension on the spot. After a district-level hearing, the suspension was lengthened to 23 days – for a joke on Facebook, about a bomb that didn’t exist.

The student’s family challenged the lengthy suspension as a violation of the First Amendment. In the real world outside of school, they argued, a fleeting joke about violence would be regarded as constitutionally protected speech falling short of a “true threat.” 

But Jones decided that, even when speech is created on personal time outside of school, it can be punished if shown to pose a realistic prospect of substantially disrupting school functions.

That “substantial disruption” threshold was recognized by the U.S. Supreme Court in a 1969 case, Tinker v. Des Moines Independent Community School District, involving punishment for in-school speech during instructional time. Speech disseminated from home outside of school time is qualitatively different. School lawyers have tried for years to convince federal judges to extend schools’ punitive authority so that all online speech is regarded as “in-school” speech, but the courts have hesitated to go that far.

Teeing up Tinker

The U.S. District Court for the Middle District of Pennsylvania is subject to precedent set by the federal Third Circuit, which is known for being especially protective of students’ First Amendment rights. The circuit’s judges have been the most hesitant of any in the country to join the growing trend of applying Tinker to legitimize school punishment of off-campus speech.

In a 2011 case heard by the entire (“en banc”) roster of 14 active judges, the court threw out a middle school’s suspension of a student who crudely mocked her principal in a profile created on the MySpace social networking site. But the judges could not agree on the larger question of whether the school’s disciplinary action should be measured by the Tinker standard or by some new standard more protective of speech.

Six judges wrote that Tinker should apply to all student speech regardless of where it is created and published, while five wrote that Tinker was insufficiently protective, failing to account for the distinction between speech in a classroom and speech on personal time to a non-school audience.

Acknowledging that his approach went beyond Third Circuit precedent, Judge Jones nonetheless wrote that he was "comfortable" applying the Tinker principle to R.L.'s case, because (1) the speech was about violence, a uniquely acute concern for school policymakers and (2) the subject matter of the speech made it especially likely to reach the school and cause an adverse reaction there. 

Johnson cited cases from the New York-based Second Circuit (Wisniewski v. Bd. of Ed. of Weedsport Central School Dist.) and the California-based Ninth Circuit (Wynar v. Douglas County Sch. Dist.) in which judges similarly granted schools broad latitude under Tinker to punish off-campus speech that portended violence against fellow students or school employees: "In light of the many school shootings that have tragically occurred over the past few decades, there can be no doubt that schools, parents, and students must take any suggestion of a bomb threat very seriously and with great cause for concern."

Suggesting that online speech may be even more disruptive to school than in-class speech because of the potential breadth of the audience, Jones wrote, “a bright line distinction between on-campus and off-campus speech in the context of Internet speech is both anachronistic and illogical.”

Lawyers for R.L. maintain that his speech, unlike the speech in those comparable cases, was clearly meant as gallows humor along the lines of "wouldn't it be ironic if the school evacuated the building today but the bomb actually went off tomorrow," which indicates no intent on the part of the speaker to commit any violence. An appeal is expected.

If the Third Circuit were to side with R.L.'s family, the case would be an especially opportune one for Supreme Court review, since the Court is most disposed to accept cases presenting a chance to reconcile a division among circuits. A ruling for R.L. would arguably place the Third Circuit in opposition, most directly, to the New Orleans-based Fifth Circuit, which sided with school authorities last fall in the case of the student rapper (Bell v. Itawamba County Sch. Bd.) that the justices recently declined to hear.

School "inappropriate behavior" code struck down as overbroad

Because no other school rule was a fit for R.L.'s behavior, the school disciplined him under a regulation penalizing "[b]ehavior or items brought to school that are inappropriate, that may cause a disruption to the school environment."

The judge almost certainly should have struck down the discipline on due process grounds, since a regulation about in-school behavior gave R.L. no adequate warningthat social-media speech would be considered punishable. But Jones declined to do so, finding that R.L. should have been on notice that school prohibitions against disruptive behavior extended into his off-campus life.

The court did, however, hand the family a victory in invalidating the regulation as facially overbroad, because it applies to behavior that "may" cause disruption even with no reasonable likelihood that such a disruption was foreseeable.

This is a significant point that throws many hundreds of school disciplinary codes into question. It is alarmingly commonplace for schools to claim the authority to punish "inappropriate" speech -- no matter where it occurs -- even though no court has ever said that speech loses its constitutional protection simply because an authority figure subjectively deems it "inappropriate."

Striking down the regulation did not end up helping R.L., however, since the judge found that his speech was within a constitutionally permissible application of the rule -- even if the rule itself invited impermissibly broad misapplications to other speakers.

The case is R.L. v. Central York School District., No. 1:14-cv-00450.

Tagged: facebook, First Amendment, First Amendment, first-amendment, off-campus speech, recent-news, social media, Tinker v. Des Moines Independent Community School District