Free Speech

Court Reverses Expulsion for Student's Off-Campus Posting of "I Will Fucking Kill off All of You!" Death Metal Lyrics

The court doesn't reach the question whether the speech was a true threat, but concludes that it couldn't be punished on the rationale that it caused substantial disruption to a public high school.

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So holds today's unanimous decision of the Pennsylvania Commonwealth Court in Appeal of G.S., in an opinion by Judge Ellen Ceisler:

[T]he Rose Tree Media School District …. expel[led] G.S. from Penncrest High School[, on the grounds that he] … had violated its Student Discipline Code by posting violent song lyrics on Snapchat despite the fact that G.S. had put up the offending post at a time when he was neither on-campus nor involved in school activities. [W]hen G.S. was 16 and in 11th grade[,] … [he] used his personal smartphone to post the following on Snapchat, where he had 60 to 65 followers, including 4 or 5 other School District students:

Everyone, I
despise everyone!
Fuck you,
eat shit,
blackout,
the world is a graveyard!
All of you, I
will fucking
kill off all of
you! This is
me, this is
my, snap!

Though G.S. did not tag his post as such, the words it contained were copied from "Snap," a song by the death metal band Spite. The only alteration G.S. made in his post to the excerpted lyrics was to add several exclamation points. [Always a bad sign! -EV] G.S. did not direct this post toward any particular person or group and did not tag any other Snapchat users in it, nor did he put up this post at a time when he was involved in school-related activities. Rather, he posted while at an Easter Sunday celebration with his extended family in New Jersey.

The posting led to the school and the police being alerted, and many students being absent from school the next day. (I vastly oversimplify the procedural details here.) G.S. was then expelled, and the court held this violated his First Amendment rights:

[M]uch of the School District's argumentation is based upon its position that G.S.' post constituted a true threat, as well as that it was both legally proper and factually justified for it to expel G.S. on that basis…. [This], however, misapprehend the actual reasoning employed by the School District's hearing officer in his August 13, 2018 report…. [T]he hearing officer declined the opportunity to decide whether the offending post was a true threat; indeed, the hearing officer remarked that "it is not necessary in this matter to make [that] determination[.]" Instead, the hearing officer reasoned that … G.S. should be expelled … because his post "materially disrupted class work, involved substantial disorder[,] and invaded the rights of others." … Given that the School District adopted the August 13, 2018 report wholesale, it cannot now seek to retroactively expand or revise its justification for expelling G.S. The true threat analysis discussed above is therefore inapplicable to this matter….

What is left for us to decide, then, is whether the School District properly determined that G.S.' Snapchat post had substantially disrupted the school environment at Penncrest, such that his expulsion did not contravene his constitutional right to free speech. Though G.S.' post sparked a chain of events that undoubtedly led to the disruption of normal operations at Penncrest, and resulted in communal agitation and fear, we nevertheless conclude that his post was constitutionally protected speech, for which the School District could not punish him.

We acknowledge that the content of G.S.' post is disturbing, facially speaking, in that its wording appears to express the author's generalized feeling of existential anger and homicidal intent. Therefore, it is understandable that this post would initially cause great concern and, given the exigencies of the moment, that the School District would elect to suspend G.S. while it investigated the matter. Likewise, it is indisputable that there is a "strong public interest in reducing the level of violence within our schools and in the community in general, that it is of paramount importance that our schools must be kept as centers of learning free of fear for personal safety[,]" and, furthermore, that "[t]his concept of safety encompasses the notion of teachers and students being secure and free from the fear of becoming victims of senseless violence."

Even so, the First Amendment and Article I, Section 7 [the free speech provision of the Pennsylvania Constitution] mandate that public schools cannot exert control over their students' off-campus speech unless there is a strong nexus between a given student's expressive conduct and their school, such that when properly contextualized, the offending speech is shown to have been clearly targeted at a member or members of their school community or clearly pertained to school activities.

In this instance, G.S. did not explicitly target specific Penncrest students, let alone the broader School District community, and he posted at a time when he was neither at Penncrest nor engaged in school-related activities…. [T]here is no dispute that G.S.' post only contained lyrics from a song he enjoyed. In addition, G.S. repeatedly and consistently insisted that he neither meant harm nor desired to hurt anyone, and had his character attested to by his parents and Dr. Habony, who each maintained that G.S. was not a violent person or a threat to others. The School District, by contrast, neglected to substantively rebut these assertions and instead posited that the plain wording of G.S.' post, coupled with the public's reaction thereto and the criminal charges that were lodged against him, ipso facto established that he had intended to harm members of the School District community. This argument underpins, in large part, the School District's position that G.S.' expulsion was sound because "[the post] was circulated among Penncrest students and their families, and [created] fear in the community [that] caused substantial disruption at Penncrest in the days that followed."

Thus, the School District would have us evaluate the constitutional sanctity of disciplining students for disruptions caused by off-campus speech through an analytical framework that would assign great value to the societal response to such speech, but disregard the context in which it was uttered, as well as the intent of the speaker. We decline to accept the School District's deeply problematic suggestion.

Were we to do otherwise, the result would be to imbue public schools with the power to discipline their students for publically expressing interests or sentiments that school administrators, faculty, or members of polite society considered execrable or simply did not understand, regardless of how, when, where, or why that expressive conduct occurred. Public schools would consequently become de facto full-time censors, preventing children from making their own decisions about what aspects of popular culture are worthy of consumption or what beliefs should be held, and interfering with parental authority, through a constant potential for punishment that would hang over students like the Sword of Damocles.

Such an expansion of governmental authority would do great harm to the expressive rights of individuals still "in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach." While public schools' reactions to students' disturbing speech may be, as in this instance, ostensibly intended to protect their staff and communities, "[t]he Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the [g]overnment to decree, even with the mandate or approval of a majority."

Public schools may certainly take appropriate, good faith steps to protect their communities in fluid situations where it is unclear whether a student's off-campus speech indicates genuinely harmful intent, as neither the First Amendment nor Article I, Section 7 require that they sit on their proverbial hands until a potential threat comes into actual fruition. However, where a student's properly contextualized, off-campus speech is not distinctly connected to school activities or clearly directed towards members of their educational community, a public school's reach exceeds its constitutional grasp if it seeks to punish that student for any disruption to normal school operations that results from that speech. Thus, as the record is devoid of any proof that there was a link between G.S.' post and his high school or his fellow students, the School District's decision to expel him from Penncrest violated both the First Amendment and Article I, Section 7.

{This is especially true in situations like this one, where the School District punished G.S. for the disruption that ensued after he put up his post, even though the record reflects that those disturbances were more precisely attributable to widespread misinterpretation and misjudgment of the import and provenance of the words the post contained.}