Q: My daughter was featured on the top most headline of the local newspaper this last Saturday. She has been stripped of her ELECTED position as President of her High School because of an off-hand comment she made on a chat on Facebook. We are looking to anyone that can help us and a lawyer friend in the are suggested contacting you.
A: The Supreme Court “has held that the First Amendment guarantees only limited protection for student speech in the school context.” Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 371 (9th Cir. 1996), citing Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969):
holding that schools can punish student conduct that would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” without violating the First Amendment);
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (“A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.”);
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986) (“The constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.”).
California has enacted statutes that broaden protection for student speech in many contexts.
The California Education Code extends students’ free speech rights while on campus to the same extent those rights may be exercised outside of the school context.” Lovell, 90 F.3d at 371, citing Cal. Educ. Code §§ 48907 and 48950. Education Code § 48907 provides that “[p]upils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous.
Also prohibited shall be material that so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.”
As an initial matter, the fact that the location of the speech was in a non-school sponsored forum does not necessarily insulate a student from school discipline. See J.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1105-06 (C.D. Cal. 2010), citing Doninger v. Niehoff, 527 F.3d 41, 50 (2d Cir. 2008) (where off-campus speech creates a foreseeable risk of substantial disruption within a school, “its off-campus character does not necessarily insulate the student from school discipline.”).
As for the situation involving your daughter, courts have recognized that, generally, “threats are not protected by the First Amendment,” though it is not always clear what constitutes a “threat.” Lovell, 90 F.3d at 372, citing Watts v. United States, 394 U.S. 705 (1969) (holding that the statement, “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.,” was political hyperbole and not a “true threat” given its context).
In Lovell, the court found that, under both the federal constitution and state law, threats made by a student to a teacher stating she would shoot her teacher if she did not rearrange her class schedule were not protected. Lovell, 90 F.3d at 372.
Although the statement was made while the student was on the school’s campus, the court seemed to disregard this fact, instead focusing its inquiry on whether the student could be punished, “based on her statement, without violating her First Amendment free speech rights, regardless of whether the conduct occurred on or off campus.” Id. at 371.
Rather, the court focused on whether the threat (as alleged by the teacher) — “If you don’t give me this schedule change, I’m going to shoot you,” according to the teacher — could be interpreted as a “true threat,” thereby falling outside the protection of the First Amendment. Id. at 372.
The applicable test that the court used was whether a reasonable person in the student’s position would foresee that the recipient of the threat (the teacher) would interpret her statement as a serious expression of intent to harm or assault. Id. at 372. “[T]here is no question that a person could reasonably consider the statement, ‘If you don’t give me this schedule change, I’m going to shoot you,’ made by an angry teenager, to be a serious expression of intent to harm or assault.
A reasonable person in these circumstances would have foreseen that [the teacher] would interpret that statement as a serious expression of intent to harm. This statement is unequivocal and specific enough to convey a true threat of physical violence. This is particularly true when considered against the backdrop of increasing violence among school children today.” Id.
The court acknowledged that it was a closer question as to whether punishing the student for the statement that the student claimed to have made — “I’m so frustrated I could just shoot someone” — violated her First Amendment rights. Id. at 373.
“It is not clear that one should foresee that such a statement will be interpreted as a serious expression of intent to harm.” Id.
Unfortunately, the court did not definitively answer whether punishment for this statement violated the student’s First Amendment rights, since she failed to meet her burden of showing that she uttered these particular words, as opposed to the words that the teacher alleged she spoke. Id.
There would seem to be good arguments that the kind of “threat” that your daughter posted to Facebook — “She makes me want to shoot my shotgun and imagine her as the clay pigeon” — might not have been reasonably interpreted by the teacher as a serious threat of harm toward her.
For one thing, your daughter did not explicitly state that she wanted to actually shoot the teacher, but rather directed any anger she had toward an imagined clay pigeon, which she would merely pretend was the teacher (if she indeed carried out her threatened actions).
It does not seem that a reasonable person in your daughter’s position would foresee that the teacher would interpret this statement as a serious expression of an intent to harm that individual.
Given that the school does not appear to have expelled your daughter for her Facebook posting, or otherwise taken any other disciplinary action that one might expect if actual danger was suspected, it seems questionable that school officials have interpreted her statement to be an actual threat against the teacher or anybody else at the school.
And if there were no “true threat,” it may be that the school’s taking away your daughter’s right to speak at her graduation represents retaliation against her in violation of her First Amendment rights.
As for what to do to reinstate her right to speak at the graduation ceremony, given that the school year is coming to an end, you would probably have to act quickly if you plan to take legal action against the school district (i.e., if you sought a preliminary injunction requiring the school to permit your daughter to speak).
You may want to consult with an attorney regarding the best course of action to take. You may be able to find an attorney to assist you through the First Amendment Coalition’s Lawyer’s Assistance Request Form at https://firstamendmentcoalition.org/legal-hotline/lawyers-assistance-request-form/.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.