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Legal Learning: True threat or just kidding?

James Manahan

Courts are struggling with the constitutional right of students to express themselves on social media (Facebook, Twitter, WhatsApp and so on). As with all First Amendment rights, there are limits to what students can say.

The U.S. Supreme Court made it clear in the Tinker case in 1969 that Mary Beth Tinker could not be punished for wearing a black armband to school to protest the Vietnam war. Only conduct that would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” can be punished, the court ruled.

In that same year in Watts v. United States, the court ruled that mere political hyperbole must be distinguished from true threats. In that case, Robert Watts, 18, protested his draft classification by saying: “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”

Even though he made a gesture of sighting down the barrel of a rifle, his conviction was reversed, since his statement was just a “very crude, offensive method of stating a political opposition to the president.”

With all the school violence in recent years, plus the increasing use of social media by young people, school administrators are having to evaluate potential threats to school safety and protect the right of free speech at the same time. Here are some recent cases; see what you think:

  • In Kowalski (West Virginia, 2012), a student created a MySpace discussion group where she and two dozen other students disparaged another student with lewd references, including her picture. Kowalski was suspended from school.
  • In S.J.W. (Missouri, 2012), twin brothers created a blog with racist content and sexually degrading comments about female classmates, and they were suspended from school.
  • In Wynar (Nevada, 2013), a high school sophomore wrote on MySpace about a school shooting that would take place on April 20 (Hitler’s birthday and the date of the Columbine massacre), and his desire to “get the record” for school shootings. He was suspended for 90 days.
  • In A.N. (Pennsylvania, 2017), a 15-year-old created a private, anonymous account on Instagram and posted a video showing students in a school gymnasium, another student coming with a rifle, and students screaming and running. He added: “See you next year, if you’re still alive.” The school canceled classes the next day and expelled the student.
  • In Wisniewski (New York, 2008), the student created an icon on his instant messaging software showing a pistol firing a bullet at a teacher’s head and the words “Kill Mr. VanderMolen.” The student said it was a joke, but he was suspended for one semester.
  • In Burge (Oregon, 2015), an eighth-grade student posted on his Facebook page that his teacher was “the worst teacher ever” and “she needs to be shot.” His mother had him delete the post within 24 hours. He said he was just kidding, but the school gave him three and a half days of in-school suspension.
  • In Mortimer (North Carolina, 2001), a student created a screensaver on one of the school’s computers that said, “The end is near.” He was convicted of communicating a threat.
  • In all but the last two cases, the courts agreed with the school’s action. The legal standard seems to be that if statements are “true threats,” reasonably calculated to reach the school environment, and they pose a serious safety risk, they can constitutionally be punished. “Just kidding” is not usually an excuse.

After reading the cases, I’m just glad I’m not a school superintendent.

James H. Manahan is a Harvard Law School graduate. He handles family law, wills and probate in and around Lake County, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. The opinions expressed in this column are those of its author and are not to be attributed to his employer. He can be reached at jimmanahan@gmail.com.

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