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Threatening Messages and Student Speech

Today's post is from David L. Hudson, Jr., author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools, which was released this week by Beacon Press. Hudson is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law and blogs at the First Amendment Center, where this post originally appeared.

Book cover for Let the Students Speak! by David L. Hudson Jr.Administrators didn’t violate the First Amendment when they expelled a Nevada high school student who sent instant messages containing an alleged hit list, a federal judge has ruled.

In 2008, Landon Wynar sent messages to a friend known in court papers as J. In his messages, Wynar threatened violence against some female students. One message read: “that stupid kid from vetch, he didn’t do shit and got a record.  I bet I could get 50+ people, and not one bullet would be wasted.”

J. forwarded the messages to R., another student, who suggested that they tell Douglas County High School authorities.  After J. and R. told school officials, Wynar was suspended for 10 days and then expelled for 90 days.

In October 2009, Landon and his guardian, Mark Wynar, sued school officials claiming that they violated Landon’s constitutional rights, including his First Amendment right to free-speech when he was punished for his off-campus speech.

On Aug. 10, U.S. District Judge Larry R. Hicks rejected these claims in Wynar v. Douglas County School District. Hicks reasoned that even though the speech originated off campus, most courts would apply the “substantial disruption” test from the U.S. Supreme Court’s 1969 decision Tinker v. Des Moines Independent School District if the speech were brought to the attention of school authorities. Under the Tinker test, school officials can restrict student speech if they can reasonably forecast a substantial disruption of school activities.

“Where a student’s speech is violent or threatening to members of the school, a school can reasonably portend substantial disruption,” Hicks wrote, adding that “the court finds that defendants had a reasonable basis to forecast a material disruption to school activities.”

Hicks noted that Landon Wynar specifically referenced April 20 — the anniversary of the infamous school shooting at Columbine High School in Littleton, Colo., as a date for the shooting and “made specific references to girls and the school by name.”

Wynar insisted that the messages were only jokes, not real threats. But Hicks said that even if they were jokes, school officials “still had a reasonable basis to forecast a substantial disruption to school activities.”

The Wynars’ attorney, Jeffrey S. Blanck, said his clients hadn’t decided whether to appeal the ruling.

“I am not happy with the decision because this was purely off-campus speech and the kid did not intend to harm anyone and didn’t convey an intent to harm anyone,” Blanck said. “This was joking between friends and the friend joked back.

“This kid spent 33 days in jail before a juvenile court judge tossed out the criminal charges.”

Requests for comments from the school district’s attorney went unanswered.