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Fresh on the heels of the United States Court of Appeals for the Fourth Circuit's poorly conceived decision in Kowalski v. Berkeley County Schools, which I wrote about last week, the Eighth Circuit has similarly expanded the ability of secondary schools to punish off-campus student speech in in the case of D.J.M. v. Hannibal Public School District No. 60. Coupled with the Fourth Circuit case, this decision deals another blow to students' First Amendment rights in the high school setting, and threatens those same rights in the realm of higher education.

Unanimously affirming a federal district court's rejection of the student's First Amendment claims, the Eighth Circuit's three-judge panel held both that the student's speech constituted a "true threat" and was therefore unprotected by the First Amendment, and that because the student could reasonably foresee that the online conversation would reach the school's administration, the school could properly punish the speech as it caused "substantial disruption" in the school's operation.

D.J.M. v. Hannibal Public School District No. 60 centers on online instant messaging conversations between D.J.M., a student at Hannibal High School (Hannibal), and C.M., a classmate and friend. D.J.M had been recently spurned by a love interest at school, and as many people do, took to venting his feelings and frustration to a friend. In the course of those conversations, D.J.M. expressed the desire to shoot a number of people at Hannibal, and mentioned to C.M. that he in fact could borrow a gun from a friend if he wished to. The conversations appeared to be hypothetical in nature, with C.M. at times inquiring as to whether D.J.M. would shoot the girl who spurned his advance, and who generally he "would" shoot. D.J.M. named specific students and groups of individuals who he "would have to get rid of." The conversations were interspersed with various Internet shorthand items indicating levity and humor, such as "lol," "haha," and "YAYAYYAY." D.J.M also spoke of committing suicide after completing the shooting, and mentioned that he wanted Hannibal "to be known for something."

C.M. later became concerned about the messages and showed them to an adult, saying that she wasn't sure if D.J.M. was merely depressed and frustrated about his spurned advance, or if his planning was serious. The adult suggested that C.M. continue talking to D.J.M. to determine if he was serious. C.M. maintained communication with D.J.M., prodding for more details. Among the things D.J.M. told C.M. was that if he had a gun, a particular classmate would be shot first, followed by the statement that "anyway, I'm not going to do that[.] [N]ot anytime soon i feel better than i did earlier today." Upon seeing these conversations, the adult concluded that D.J.M. was serious and urged C.M. to show school officials the conversations. C.M. forwarded excerpts of the conversation to the principal, who informed the police. The school initially suspended D.J.M. for 10 days, but later extended the suspension to the rest of the school year.

D.J.M.'s parents sued the school in federal court, claiming that the suspension violated D.J.M.'s First Amendment rights. In granting summary judgment for the school district, however, the federal district court held that D.J.M.'s statements constituted a "true threat" and thus were unprotected by the First Amendment.

On appeal, the Eighth Circuit first examined the district court's ruling that D.J.M.'s statements constituted a "true threat." D.J.M. argued that he had raised a genuine issue of fact as to whether a reasonable recipient of his statements would view his instant messages as serious expressions of intent to harm. D.J.M. claimed that his violent musings were made out of frustration, and in part in response to "goading" by C.M., and that they were not intended to be read as serious plans to engage in violence. The Eighth Circuit rejected this claim, and affirmed the reasoning of the district court that because D.J.M. admitted to being depressed, had access to weapons which made his threats believable, expressed the desire to kill specific classmates, wanted Hannibal "to be known for something," and had caused C.M. to become concerned enough to contact an adult, the statements would in fact be interpreted as serious. The court added that the presence of "hate filled comments," as well as the reaction of C.M. and the adult confidant, were proof that the comments were perceived as true threats, noting that "[t]he record does not reveal that any person who became aware of D.J.M.'s speech thought he was joking." The court further rejected that the use of Internet shorthand expressing humor, and the statement that "he would not act ‘anytime soon,'" were sufficient to overcome the evidence of a true threat. Therefore, D.J.M.'s statements were not afforded constitutional protection and could be punished.

The court then turned to a discussion of whether off-campus speech could be punished by the school. The court focused its analysis on the landmark Tinker case and its progeny: In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the U.S. Supreme Court held that a school may punish speech that substantially disrupts school activities, or causes administrators to reasonably forecast such a disruption. Tinker, 393 U.S. at 514. Here, the Eighth Circuit concluded that regardless of whether the statements were true threats, the school could punish the speech because it was reasonably foreseeable that the conversations would cause a substantial disruption, and because they actually caused such a disruption.

The court noted that after word about the conversations spread, parents and students expressed concerns for safety and inquired as to what precautions the school was taking. As a result, the school had to impose additional security measures. Parents and students also asked about whether specific names were on a "hit list." The court summarily dismissed D.J.M.'s claim that the off-campus nature of the speech removed it from the purview of the school, saying that "it was reasonably foreseeable that D.J.M.'s threats about shooting specific students in school would be brought to the attention of school authorities and create a risk of substantial disruption within the school environment." Therefore, the court concluded, the "need for a safe school environment" overrode D.J.M.'s free speech rights, and provided adequate basis for the school's punishment.

Both parts of the court's analysis are flawed, and I want to take the time to address each in turn.

In the "true threat" analysis, the court found no genuine issue of fact as to whether the statements were such that "a reasonable recipient would have interpreted [them] as a serious expression of an intent to harm or cause injury to another." In doing so, the court seems to have virtually ignored all of the evidence that D.J.M. had implied and explicitly expressed that there was no serious plan to inflict violence. D.J.M. was likely, as adolescents are wont to be, distraught over being spurned by a love interest and feeling the intense emotions that adolescence tends to wreak.

The use of shorthand phrases such as "lol," "haha," and "YAYAYYAY" seem to indicate at least the possibility that this plotting and scheming was mere juvenile venting. Much of the language used by D.J.M. was hypothetical in nature, saying who he would shoot, and who would be the "first to go." Furthermore, the conversation was not one-way. C.M. herself freely bantered about the topic before she decided that the conversation warranted concern, even joking about the possibility of committing such an act. Furthermore, she admits that she prodded D.J.M. for details in an attempt to discover whether he was serious or not. Conceivably, D.J.M. may have only formulated the specifics of the plan (upon which the court relied to find a true threat) in response to this questioning. And, of course, there is D.J.M.'s own statement that "anyway, I'm not going to do that . . . i feel better than i did earlier today." In fact, D.J.M. appeared to be shocked that C.M. had even thought that he was being serious.

The court also noted that the use of "hate filled comments" contributed to its holding. This is a particularly dangerous precedent, as it has the potential to reach much political speech, which often "include[s] vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Watts v. United States, 394 U.S. 705, 708 (1969) (internal quotation marks and citations omitted). Recently, for example, the United States Court of Appeals for the Ninth Circuit who posted comments seeming to call for the assassination of President Obama, which included a bevy of racial slurs. Given the level of overreaching that we already see when it comes to so-called "hate speech," it would be unsurprising to see this precedent used to stifle even more speech.

Furthermore, the court found that the very reactions of C.M. and her adult friend to the speech proved that a reasonable person would interpret the threats as serious and believable. But the question is not whether C.M. and her adult friend interpreted the threats as serious—we know they did. The relevant question is whether a reasonable person would have done so in light of the circumstances. The court's use of the reactions of C.M. and the adult to prove that a reasonable person would think the threats serious is not only unhelpful and uninstructive, but also borders on logical fallacy.

All of this is not to say that the conversations were definitively not true threats. But in finding no genuine issue of fact as to whether the standard for a true threat was met, the Eighth Circuit seems to have forgotten its own admonition that "the communication must be viewed in ‘textual context and also in the context of the totality of the circumstances in which the communication was made.'" United States v. Floyd, 458 F.3d 844, 849 (8th Cir. 2006) (quoting United States v. Bellrichard, 994 F.2d 1318, 1323 (8th Cir. 1993). It is difficult to imagine what more the court would have liked to see in order to create a genuine issue of fact sufficient to avoid summary judgment and proceed to trial for full development of the facts..

The court's analysis under the Tinker doctrine fares no better under scrutiny. The Eighth Circuit joined the growing ranks of courts applying the Tinker standard to off-campus speech, holding that a school may punish off-campus speech which the speaker may reasonably foresee will be brought to the attention of school authorities and create a risk of substantial disruption within the school environment. While no federal circuit has rejected the application of Tinker to off-campus speech, the Third Circuit recently . Applying the Tinker standard to off-campus speech is a dangerous proposition that grants school administrators substantial authority over nearly all student speech, no matter the time or place. As the five-judge concurring opinion in J.S. v. Blue Mountain School District noted, a student could write anything on the Internet, and so long as a fellow classmate finds it offensive and causes a disturbance at school, the administration could punish the speaker in addition to those responsible for the disturbance.

Even if the Tinker standard does apply, the court's analysis was woefully deficient. In one broad, conclusory stroke, the court found that it was reasonably foreseeable that D.J.M.'s threats would reach school authorities, without explaining why. Last week's Fourth Circuit decision may have been bad, but at the very least the court there explained why it felt the off-campus speech had "reached the schoolhouse gate." And was it in fact foreseeable? Most of us have confidants and trusted friends with whom we share our deepest emotions and often our darkest moments. We choose these individuals because they listen, refrain from judging when we say outlandish things in emotional outbursts, and keep our confidences. A distraught and emotional D.J.M. may well have confided in C.M. and engaged in therapeutic venting, while expecting the conversation to remain between them. Still further, D.J.M. especially had no reason to believe that his statements would reach school authorities out of context. C.M. provided excerpts of the conversations to the principal, as well as the following comment:

[D.J.M.] had told me earlier before I started saving the messages that he had a friend who had a gun that he could get . . . He told me he wanted Hannibal to be known for something and that after he shot the people he didn't like he would shoot himself . . . I asked him if he had a way to buy a gun and i asked if he had anyone old enough to get one for him and he said someone who was 21 could get one but he doesn't think he would buy it for him."

Clearly, then, the principal may not have gotten a complete and accurate image and context for these conversations. Of course, a principal seeing this comment, and other selected excerpts expressing plans to commit a school shooting, would be fearful. But could D.J.M. reasonably foresee that C.M. might provide an incomplete record of the conversations to the principal? And that this incomplete picture might cause a substantial risk of disruption? It is an untenable position to require a speaker to consider all possible ways in which his speech could be misconstrued or taken out of context, the result of which would be to expose him to punishment should that actually occur.

To be sure, the facts of this case are unappealing and may not engender much sympathy for the student. But, as the saying goes, "bad facts make bad law." In the aftermath of violent school tragedies such as Columbine and Virginia Tech, students exhibiting even the slightest indication of possibly being a threat will be scrutinized and disciplined in the name of school safety, no matter where or when. Though perhaps acting with worthy purpose, schools must still be certain not to infringe on the rights of its students even in these unappealing cases. Encroachment on liberties tends to begin with unappealing facts, migrating its way to general applicability. The end result: a loss of liberty for all.

While, as in last week's Fourth Circuit decision, this decision applies to student speech in high school and not higher education, it is extremely damaging to all student speech. This is particularly so given that much of the rationale behind overzealous regulation of student speech in higher education closely mirrors the interests of the school protected by Tinker. In allowing high schools to punish more speech, these types of decisions encourage college and university administrators to similarly overreach, to protect what they consider the "order and discipline" of their institution from "disruption." Given the considerable and growing disagreement over whether Tinker should apply to off-campus speech, the likelihood has grown even stronger that eventually the Supreme Court will be forced to settle the issue once and for all. Until then, FIREremains vigilant and ready to defend student speech to the best of our ability.