Facebook bomb threat comment raises Free Speech questions
By P.J. D’Annunzio, From The Legal Intelligencer
The First Amendment case of a high school student suspended for making a Facebook post about a bomb threat entered murky constitutional waters Tuesday when a federal judge said the law was conflicted as to whether students can be punished by schools for Internet remarks.
On Oct. 23, 2013, Central York High School was evacuated after a note indicating that a bomb was in the building had been found. After the school had been cleared and police determined that there was no bomb in the building, a 15-year-old student identified in court papers as R.L. posted on Facebook, “Plot twist, bomb isn’t found and goes off tomorrow.” School administrators suspended him for 10 days on the grounds that his comments caused worry among students the following day.
R.L.’s parents, Michael and Jill Lordan, sued Central York School District claiming his right to free speech had been violated by the discipline.
Despite that, presiding U.S. District Judge John E. Jones III of the Middle District of Pennsylvania said the law was unclear on the issue.
“At the outset, we note that our ability to decide with confidence whether R.L.’s speech was protected by the First Amendment is hamstrung by the perplexing state of relevant precedent,” Jones said in his opinion released Tuesday. “The extent to which schools can discipline or punish students for speech has been a developing area of law for the past few decades; with each precedential decision, lower courts are left with as many questions as they have answers.”
The Lordans argued that R.L.’s suspension was not permitted, specifically pointing to a 1969 decision from the U.S. Supreme Court in Tinker v. Des Moines Independent Community School District. In that case, the high court held neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
But Jones said just because the court never approved punishment of a student based on off-campus speech, as was the case in Tinker, didn’t mean that such punishment was never appropriate.
Yet another question, however, was whether comments on the Internet constituted off-campus speech. But that too was another developing area of law with no clear answers for R.L.’s case, according to Jones.
Despite hazy case law, the judge held that it was reasonable for the district, specifically Superintendent Michael Snell, to assume R.L.’s Facebook post would cause a disruption in school warranting a suspension, even though R.L.’s parents maintained that the post was meant as a joke. Snell had even considered summoning police and the canine unit back to the school.
“Superintendent Snell also took R.L.’s speech so seriously that he traveled to the away football game to personally question R.L. about the post, including questioning him about his ability to make a bomb,” Jones said. “Conversely, plaintiffs have offered no testimony that other students or administrators who viewed the post found it to be nothing more than a funny joke or commentary.”
If a school administrator reasonably views a comment as a possible bomb threat or speech that could raise fear that could lead to disruption of day-to-day school activities, the administrator should be able to address it, Jones reasoned.
“Logically, schools should be able to discipline students on account of off-campus speech they reasonably believe could cause disruption in the form of danger or violence, or fear of danger or violence, in schools. Such a rule would also account for the modern reality of the Internet and social media networks on which students actively engage, whether they are on-campus or off-campus,” Jones said.
“While we respect deeply that R.L.’s parents feel the need to vindicate him,” he added, “we fundamentally disagree with their conclusion that his punishment is violative of the First Amendment.”
The Lordans’ attorney, Zachary Nahass, declined to comment. The district’s lawyer, Brooke E.D. Say, did not return a call seeking comment.
(Copies of the 48-page opinion in R.L. v. Central York School District, PICS No. 16-0576, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •
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