 |
Court says student's violent buddy icon not protected expression
Attorney says case will be appealed
July 18, 2007
NEW YORK — An eighth-grader's suspension for sharing an AOL
Instant Messenger buddy icon depicting his teacher being shot was upheld by the
Second U.S. Circuit Court of Appeals on July 5, affirming a lower court's
dismissal of the First Amendment challenge.
The icon showed a gun
shooting a bullet at a person’s head, splattering red dots, and included
the caption, “Kill Mr. VanderMolen,” who was the student's English
teacher at the time, according to court documents.
The student, Aaron
Wisniewski, transmitted the icon to at least 15 online friends, including some
classmates at Weedsport Middle School, from his parents' home computer in April
2001, according to the decision.
The three-judge panel's decision
directly addresses the collision of off-campus speech with on-campus school
disciplinary policies in the Internet age, ruling that out-of-school speech,
especially threats, that could disrupt school operations may be
punished.
"The fact that Aaron’s creation and transmission of the
IM icon occurred away from school property does not necessarily insulate him
from school discipline," the court's decision read. "We have recognized that
off-campus conduct can create a foreseeable risk of substantial disruption
within a school."
"It just shows that the courts are giving schools the
authority to reach outside of school and outside of the school building," said
Stephen Ciotoli, Wisniewski's attorney. "This is a private text message between
kids. This is like two kids having a conversation in their bedroom and the court
now saying a school can punish that."
Wisniewski did not send the icon to
any school officials, but another student showed it to VanderMolen, who alerted
local police, the school superintendent and Wisniewski's parents.
A
police officer questioned Wisniewski and determined that he meant the icon as a
joke and posed no real threat, closing a criminal investigation. A psychological
evaluation reached the same conclusion.
But after a May 2001
superintendent's hearing, the hearing officer decided that the icon did
constitute a threat, irrespective of Wisniewski's intent. She said that although
the act occurred outside of school, it disrupted school operations and created
"an environment threatening the health, safety and welfare of others," according
to her written decision.
Wisniewski was suspended for a
semester.
His parents sued in November 2002, but a federal district court
sided with the hearing officer in June 2006, and the Second Circuit agreed this
month.
"Even if Aaron’s transmission of an icon depicting and
calling for the killing of his teacher could be viewed as an expression of
opinion within the meaning of Tinker, we conclude that it crosses the
boundary of protected speech and constitutes student conduct that poses a
reasonably foreseeable risk that the icon would 'materially and substantially
disrupt the work and discipline of the school,'" read the court's decision,
invoking the "substantial disruption" test established in the U.S. Supreme
Court's 1969 ruling in Tinker v. Des Moines Independent Community School
District.
Significantly, the court said the icon was not a true
threat but could still cause a substantial disruption, according to Adam
Goldstein, attorney advocate for the Student Press Law Center.
"That
ruling sets up a Catch-22," Goldstein said. "If it's clear that speech is not a
true threat, then no one could reasonably conclude that it would cause a
disruption. In fact, it would be pretty unreasonable to conclude that
non-threatening speech could be disruptive."
Ciotoli said the Second
Circuit court's decision was influenced by the Supreme Court's "Bong Hits 4
Jesus" ruling last month.
"I assume the Second Circuit was waiting for
that decision and, to a certain extent, I think they followed it," he said.
"They probably figured if they had gone the other way and then this case had
gone up to the Supreme Court, the Supreme Court might have reversed them. So I
see them following the more conservative wind here, which is disappointing
because I see it as a whittling away of student free-speech rights."
But
Ciotoli said that the Second Circuit's ruling went a step further than "Bong
Hits," or Morse v. Frederick.
"Now we have this kind of leap
where we've gone from, 'Well, we'll control speech at school assemblies, we'll
control speech in the student newspaper, we'll even control speech if you unroll
a 20-foot banner at a school-sponsored event,'" he said. "Maybe that all makes
sense. But now we're going to control speech between two kids having a private
conversation off campus, which really has nothing to do with school?
That’s quite a leap."
"So that really begs the question: What's
left of Tinker?" Citoli added.
Referencing Supreme Court Justice
Clarence Thomas's concurring opinion in Morse, in which he advocated
overturning the Tinker standard altogether, Ciotoli said, "in some ways
the Second Circuit just did that."
Ciotoli said the Wisniewskis would
petition for en banc review, allowing all 13 Second Circuit judges to
reconsider the case.
"If we don’t get a hearing there, we'll do a
writ of [certiorari] up to the Supreme Court," he said. "This may be
something they'll want to hear because student free speech seems to be on their
minds these days."
By Isaac Arnsdorf, SPLC Staff Writer
© 2007 Student Press Law Center
Share
For More Information:
Wisniewski v. Bd. of Educ. of the Weedsport Central Sch. Dist., No. 06-3394 (2d Cir. April 17, 2007).
< Return to Previous Page