A public school student did not utter a true threat with his memes created off-campus and, therefore, school officials violated his First Amendment rights when they expelled him, the Pennsylvania Supreme Court has ruled.
In April 2018, J.S. was a high school student in the Manheim Township School District, just outside Lancaster, Pa. J.S. and another student (called “Student One” in the Pennsylvania Supreme Court’s decision) exchanged messages over their cell phones on social media about “Student Two.” J.S. and Student One talked about how Student Two could be a school shooter.
J.S. sent Student One two Snapchat memes suggesting that Student Two looked like a shooter because Student Two had long hair and wore a “Cannibal Corpse” T-shirt. Cannibal Corpse is a musical group in the death heavy metal rock genre.
One of the memes contained a photo of Student Two singing with the caption, “I’m shooting up the school this week. I can’t take it anymore I’m DONE!” The second meme, a video meme, featured Student Two playing the guitar with the following caption: “I’M READY [Student One] AND MANY MORE WILL PERISH IN THIS STORM. I WILL TRY TO TAKE [Student One] ALIVE AND TIE HIM UP AND EAT HIM.” The memes were not sent to Student Two.
Student One posted the meme to his Snapchat story. Someone contacted school authorities, who called the police. After interviewing J.S. about his memes, police concluded there was no threat to school safety.
However, school district officials suspended J.S. for three days for violating the school’s policy against making terroristic threats. The district then increased the suspension to 10 days for violating the school’s policy against cyberbullying. Later, the district brought expulsion proceedings against J.S.
After a hearing, a district committee recommended expulsion. But J.S. appealed to a state trial court, which ruled that school district officials violated J.S.’s First Amendment free-speech rights and his right to due process. An intermediate appellate court affirmed.
The school district appealed to the Pennsylvania Supreme Court, which also affirmed the trial court’s ruling in favor of J.S. in its Nov. 17, 2021, decision in J.S. v. Manheim Township School District.
The Pennsylvania Supreme Court noted that the U.S. Supreme Court in its recent June 2021 decision in Mahanoy Area School District v. B.L. (2021) had “declined to establish a uniform rule for monitoring off-campus speech.”
Writing for the Pennsylvania Supreme Court majority, Justice Debra Todd noted that although “Mahanoy, the (U.S. Supreme) Court plainly rejected the notion that schools may not regulate off-campus speech,” it “offered certain features that may diminish the ability of a school to punish off-campus speech [and] declined to set forth any list of circumstances in which a school could regulate such speech, or even what constituted off-campus speech, but strongly suggested any such analysis was circumstance specific.”
Todd said the U.S. Supreme Court in Mahanoy also did not address when student off-campus, online speech constitutes a true threat. She explained how Pennsylvania courts should address whether student speech constituted a true threat:
“[W]e hold that a reviewing court must engage in a two-part inquiry: first examining the content of the speech, and then assessing relevant contextual factors surrounding the speech. These factors include, but are not limited to: (1) the language employed by the speaker; (2) whether the statement constituted political hyperbole, jest, or satire; (3) whether the speech was of the type that often involves inexact and abusive language; (4) whether the threat was conditional; (5) whether it was communicated directly to the victim; (6) whether the victim had reason to believe the speaker had a propensity to engage in violence; and (7) how the listeners reacted to the speech.”
Applying some of these factors, the Pennsylvania high court first noted that the memes were not threats from J.S. to Student One, but merely fictional statements that Student Two might be a school shooter. Second, the court noted that the memes were a “kind of sophomoric and misguided form of humor.” Finally, the court emphasized that Student One had no reason to believe that J.S. had any sort of propensity to engage in violence.
The Pennsylvania high court concluded that from a totality of the circumstances, it was clear that J.S. did not intend to threaten Student One, Student Two, or anyone else with the mean-spirited and misguided memes.
The court then addressed whether the school district could punish J.S. under the “substantial disruption” standard from the U.S. Supreme Court’s seminal student-speech decision Tinker v Des Moines Independent Community School District (1969). Under the Tinker analysis, if a student’s speech rises to the level of a substantial disruption, school officials can discipline the student without violating the First Amendment.
“While J.S.’s memes no doubt impacted the school environment to some degree, we do not believe that they rose to the level of a substantial disruption required by Tinker, Todd wrote.
Justice Kevin M. Dougherty dissented, reasoning that the court should have addressed the due-process issues in the case rather than bypassing them and proceeding to the First Amendment issues.
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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).