Q: My friend is being suspended from high school for the rest of the year and is having her senior year activities taken away from her. All this came about because she got into an confrontation with at teacher and later posted a blog ranting about the teacher and what happened. The school found out about the blog and is punishing her for it. They are saying that she was threatening the teacher because in it she said “someone should throw her into the ocean or fuck her.” I know that this must be a clear violation of her first amendment rights but no one she’s talked to is willing to support her.
A: The United States Supreme Court has held that public school students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.” See Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). California law provides even greater protection for student speech. See California Education Code sections 48950; 48907; California Constitution, Section 2, Article 1.
However, this does not mean that all student speech is protected. Neither the First Amendment nor California law gives a student the right to threaten others. Lovell v. Poway Unified School District, 90 F3d 367, 371 (9th Cir. 1996). Whether a blog entry like the one posted by your friend is protected speech or an unprotected threat depends on whether it is a “true threat.” A statement is a “true threat” if a reasonable person making the statement would foresee that others would perceive the statement as a serious expression of intent to commit harm or assault. Lovell, 90 F3d at 372. The person making the threat need not actually intend to harm the other person, and a statement can be a threat even if not directly communicated to the target of the threat. Doe v. Pulaski County Special School Dist., 306 F.3d 616, 624 (8th Cir. 2002).
Free speech cases often turn on particular facts, so it is difficult to say if your friend’s statement would be considered a “true threat.” However, several courts have held that statements on student blogs and websites similar to the statement posted by your friend are not true threats. See Mahaffey v. Aldrich, 236 F. Supp. 2d 779, 785 (D. Mich. 2002); J.S. ex rel H.S. v. Bethlehem Area School District, 569 A.2d 638 (Pa. 2002); Emmett v. Kent School District, 92 F.Supp 1088 (W.D. Wash. 2000).
If your friend’s blog is not a “true threat”, the school still may be able to suspend her. A school may be able to punish a statement such as the one your friend made on her blog if the school can show that it caused a substantial disruption at school or substantially interfered with school discipline. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). However, the school probably cannot punish purely off-campus speech that has no connection to the school. See Emmett v. Kent School District, 92 F.Supp 1088 (W.D. Wash. 2000); Flaherty v. Keystone Oaks School District, 247 F.Supp. 2d 698 (2003). The circumstances under which a student’s blog or social networking site constitute on-campus speech are uncertain. It is possible that statements on a student’s private blog can be considered on-campus speech if the blog is created, accessed, or edited at school, shared with others at school, or if the blog is directed at the school or school officials. See J.S. ex rel H.S. v. Bethlehem Area School District, 569 A.2d 638 (Pa. 2002) (upholding suspension of a student for threatening content on the student’s website even though the content was not a “true threat”).
On the other hand, your friend’s blog may be protected under California law even if it is not protected under the First Amendment. In general, California law provides greater free speech protections to students than does the First Amendment. See Lopez v. Tulare Joint Union High Sch. Dist., 34 Cal. App. 4th 1302 (Cal. Ct. App. 1995). For instance, California Education Code section 48950 prohibits a school from imposing discipline “on the basis of conduct that is speech or communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution” (although the section does not protect speech that constitutes “harassment, threats, or intimidation”). While we are not aware of any legal authority in which this section was applied to a situation like the one facing your friend, you should be aware of it.