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8th Circuit Says Disciplining Student for Off-Campus Online Speech Containing True Threats Does Not Violate Student’s Free Speech Rights

Here we go again. Only a few days after the 4th Circuit issued its decision Kowalski v. Berkley County Sch., the 8th Circuit has now become the latest court to recently weigh in on the issue of whether a school district’s discipline of off-campus online speech violates a student’s free speech rights under the First Amendment. As discussed in our recent post on July 28, 2011, there has been much activity in the Circuit Courts in the past few months regarding disciplining of students for their off-campus online speech. So, what did the 8th Circuit have to say on the issue?

In D.J.M. v. Hannibal Pub. Sch. Dis., No. 10-1428, decided on August 1, 2011, the 8th Circuit held that statements made in a student’s off-campus online communication with a fellow classmate constituted unprotected true threats and therefore not protected speech. As such, the 8th Circuit held that the school’s discipline of the student did not violate the student’s First Amendment rights. The facts in this case involved an off-campus online instant message conversation in which the student in this case, D.J.M, made statements to another classmate about getting a gun, named specific students that he “would have to get rid of”, and stated that he could borrow a .357 magnum from a friend.  He further stated that a particular named classmate “would be the first to die.” The student with whom D.J.M was having the instant message communication became concerned about the threatening nature of the student’s messages and provided portions of the online conversations to school administrators. The school administrators agreed they should call the police, which they did. The student was placed in juvenile detention and the school district ultimately suspended him for the rest of the school year.

In appealing the district court’s decision granting the school district’s motion for summary judgment, D.J.M asserted that 1) he had not intended to make any true threats and that his messages were not serious expressions of intent to harm 2) his speech should not be regulated by school officials because it was online outside of school and 3) the school’s decision to suspend him was content based restriction violating the First Amendment.  The 8th Circuit rejected these claims, finding that there was no genuine dispute of material fact regarding whether his speech could be reasonably understood as a true threat and as such was not protected speech under the First Amendment. The 8th Circuit also used the reasonably foreseeable substantial disruption analysis test based on the Supreme Court’s decision in Tinker and found that the off-campus speech caused a substantial disruption and therefore could be the subject of disciplinary action.

As some of you may recall, the 2nd Circuit in 2007 weighed in on this issue regarding off-campus threats in the case Wisniewski v. Bd. of Educ. of the Weedsport Central School District, 494 F.3d 34 (2d Cir. 2007).   In Wisniewski, the 2nd Circuit held that the district court had properly dismissed the claim that a school district had violated a student’s First Amendment Rights when the school suspended the student for sharing over the Internet a small drawing, which crudely and clearly suggested that a named teacher should be shot and killed. Applying the Tinker analysis, the 2nd Circuit held that it was reasonably foreseeable that the student’s online communication would cause a substantial disruption within the school environment, and as such, the school district in disciplining the student did not violate his First Amendment rights.  The 8th Circuit refers to and discusses the Wisniewski case in the D.J.M. decision when determining that it was “reasonably foreseeable that D.J.M.’s threats about shooting specific students in school would be brought to the attention of school authorities and create a risk of substantial disruption within the school environment,” although, in the Wisniewski case, the 2nd Circuit never reached the issue of whether the internet transmission was a “true threat.”

Connecticut school districts should continue to be aware of the other Circuit decisions, but note that until there is a Supreme Court ruling on this issue, the 2nd Circuit cases applying the Tinker standard are the law in this Circuit.  When school districts are made aware of online communications that are threatening in nature, Connecticut school districts should be aware that the state’s new bullying statute requires principals or a principal’s designee to notify the local law enforcement of any act of bullying that constitutes “criminal conduct.” As recommended previously on this blog, districts, if they haven’t already, should familiarize themselves with the new language and requirements added to Connecticut’s bullying statute.