The Court of Appeals should reverse the district court’s decision, and grant to Ms. Eriksen a motion for preliminary injunction, because Ms. Eriksen engaged in constitutionally protected free speech. This case encompasses the violation of First Amendment rights and this court ought to “conduct an independent examination of the record as a whole, without deference to the trial court.” Bery v. City of N.Y., 97 F.3d 689, 691 (2d Cir. 1996). For the First Amendment issues, the appellate courts must make an independent inspection of the whole record in order to ensure that lower court decisions do not infringe free speech rights.
The applicable standard of review of the appeal would be De novo. The First Amendment of the United States Constitution is a very sensitive issue, and so the Court of Appeals cannot just review it on the facts of the case. The courts must determine on the specific issue and constitutional facts of the case including the law by looking over the whole case. The appellate court reviews a decision on a question of law anew, without regard to the trial judge’s ruling.
In the Appellate court, they are "obliged to make a fresh examination of crucial facts" in order to resolve the First Amendment issue in this case.” ACLU of Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1205 (11th Cir. 2009). The case that involves freedom of speech comes under Federal Constitution's First Amendment, where the court is obligated to analyze the essential facts even though the case has been tried before in the lower court. An appellate court reviews the district court's denial of a preliminary injunction generally for an abuse of discretion, but the appellate “court examines the legal conclusions on which the denial is based de novo.” Bery v. City of N.Y., 97 F.3d 689, 691 (2d Cir. 1996). In that case, the visual artist posted allegedly abusive material, and the plaintiff sought a preliminary injunction. Among other issues, the court ruled that it was the obligation of a plaintiff to prove that ‘absence of an injunction will result in an irreparable harm for this party”. An abuse of discretion exists when there is uncertainty, and the district court has made an error of law or of fact, which does not apply to our case.
THE DISTRICT COURT ERRED IN NOT GRANTING MS. ERIKSEN MOTION FOR PRELIMINARY INJUCTION BECAUSE MS. ERIKSEN’S EMOTIONALLY EXPRSSIVVE ONLINE CONDUCT WAS NOT SCHOOL RELATED, AS WELL AS IT DID NOT MATERIALLY AND SUBSTANTIALLY DISRUPTED THE SCHOOL ENVIRONMENT AND DISCIPLINE.
Tinker does not authorize government officials to restrict a student’s right to freedom of speech based on “Undifferentiated fear or apprehension of disturbance as it is not enough to overcome the right to freedom of expression.” Id. at 507. In the absence of showing of constitutionally valid reasons to regulate their speech, students are “entitled to freedom of expression of their views.” Id. at 508. The school administrators can impose disciplinary sanctions against a particular student, only if his or her activities are somehow school-related.
It can hardly be argued that “either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Id. at 508. The duty of school authorities is to maintain a balance between safe learning environment and student’s freedom of speech. However, in the school environment, some speech is not entitled to First Amendment protection, and school authorities may lawfully punish some forms of unprotected student speech. The student’s freedom of expression are confined until it “materially and substantially interferes with the right of others” Id. at 504. Such expression that disrupts the right of others is “not immunized by the constitutional guarantee of freedom of speech.” Id. at 509. In order for the school to exclude a students’ expression, the school must show that the conduct “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” Id. otherwise “prohibition cannot be sustained.” Id.
In Tinker, the court articulated that the school is entitled to take disciplinary measures against a student under two main scenarios; If conduct of the student substantially and materially interfes with the discipline requirements of the school, and when such conduct collides with the interests of others. In order to request a preliminary injunction, a party should prove that it may suffer an irreparable harm, which it failed to demonstrate in this case.
Ms. Eriksen’s conduct was not school-related because the speech in question occurred off-campus, in an affiliated platform, and her speech was constitutionally protected by the First Amendment.
Although there is some disagreement in the lower courts, analysis of the practice shows that in order to be considered a school related activity, actions of the concerned party should either reach a serious number of school staff or fellow students, or it should be executed through one of the school-sponsored or affiliated platforms.
It is important to distinguish between on and off-campus speech. While the first one is generally subject to the regulation of the school authorities, the off-campus speech can be regulated if “it is reasonably foreseeable that it would reach school property.” Wisniewski v. Bd. of Educ. of the Weedsport Cent. Sch. Dist., 494 F.3d 34 (2nd Cir. 2007).There has to be a indistinct line between student activities that “affects matter of legitimate concern to the school community.” Doninger v. Niehoff, 527 F.3d 41, 48 (2d Cir. 2008). Moreover, “territoriality is not necessarily a useful concept in determining the limit” of the school officials Thomas v. Bd. of Educ., 607 F.2d 1043 (2nd Cir. 1979).
In order to discipline a student legitimately, it is important to determine whether his actions have caused or might have caused a substantial disruption of the educational environment. The School district violated a student's First Amendment rights by disciplining student for his off-campus expressive conduct, which had an insufficient nexus between the student's conduct and any substantial disruption of the school environment. Layshock ex rel. Layschock v. Hermitage School District 650 F.3d 205, 207 (3rd Cir. 2011). In Layshock, a student created a fake internet profile of his high school Principal on MySpace. The profile was created during non-school hours and at the student’s grandmother house. Id. at 208. The student used the Principal’s photo from the school website for the profile. The MySpace profile included fake answers to survey questions and the profile was accessible to other students at the school. Id. The Principal found the fake profile to be “degrading, demeaning, demoralizing, and shocking” Id. at 209. The court held that because the speech occurred off campus (it was made offline and was accessed at school) and did not cause substantial disruption in school, it was protected speech under the First Amendment. Id. at 211.
Similarly, even if the principal were enforcing school policies, the student's comments on the social networking site did not amount to the type of speech that courts had found to be unprotected. Evans v. Bayer, 684 F. Supp. 2d 1365 (2010). In Evans, a student created a group on Facebook, where she made a post about her dislike of a teacher. Although the post was subsequently removed, the principal suspended the student for several days and applied other disciplinary measures. The court ultimately found that the student’s speech was protected speech. Id. at 1374. Since the Facebook page was not created on campus, and it was never accessed it on-campus, and it did not contain any kind of offense, it is constitutionally protected.
Likewise, in Emmett, the court ruled that creating fake online obituaries was not a matter of school interest, but a form of private relationship between the students. Emmet v. Kent School District, No. 415, 92 F. Supp. 2D 1088 (Wash. 2000). A student created an online obituary on a site, where he specifically indicated that the site was ‘an unoffical site of the school’, where the classmates were suggested to post comments and to decide who would be the next obituary target ‘for fun’. Id. at 1089. The court also ruled that any private relationships (the matters, which do not concern educational curriculum or other school-related activities) of the students settled online can not become the basis of a disciplinary action of the school administration, as long as they are not school-related activities. In that case the student created obituaries for the other students he disliked without intent to harm them, and the court ruled that it was a constitutionally protected form of freedom of speech.
Comparably, students "underground" newspaper did not materially and substantially interfered with the activities or discipline of the school, and the “school board's suspension of the students for publishing the newspaper violated their First Amendment rights.” Shanley v. Ne. Indep. Sch. Dist., 462 F.2d 960 (5th Cir. 1972). In that case, the group of students created a controversial newsletter, and started to disseminate it among the students. The court ruled that restricting the expression of students, when the sole basis is that some officials, parents or other students object to its content is not tolerable under the law. The newsletter was created off-campus, and the it was distributed outside school hours.
The speech in question is similar to Layshock and Evans, where the student’s speech was protected as it was created off campus, and the websites had no substantial relation to the school. While certain speech that technically occurs off school grounds is treated as if it occurred on school grounds because of its substantial relation to the school, Ms. Eriksen’s speech is properly characterized as off campus speech. Ms. Eriksen’s website, “Sink or Swim” was created at her own home and was used to disseminate swimming information. (R. at 4). More importantly, the Sink or Swim page was not affiliated with the school nor was it password protected. (R. at 4). Ms. Eriksen’s “Sink or Swim” website is similar to the one in Evans and Layshock, which were both found to be protected speech, and the website was aimed for
global audience. Ms. Eriksen’s website is positioned as a platform ‘for swimmers only’, not for the students. Ms. Eriksen received attention of the vast audiences and never intended to spread the news in the campus. Therefore, her online comments do not qualify as a school-related (campus) speech.
The case at hand is similar to Shanley where the student’s activity had no substantial relation with the school. The “Sink or Swim” website was created off-campus, and it was visible around the globe. There is no evidence that the website interfered with the discipline of the school. The blog of Ms. Eriksen was not affiliated with school and it was open to all, meaning, anyone could comment on it and express their views as it was not password protected.
Our case can also be analogized with Emmett case, where the comments on online obituaries were presented in humorous way. As Ms. Eriksen said that the blog on her website was a joke, she was not serious in terms of harming Ted, and the principal’s decision can be viewed as reactionary to disciplining the student. In other words, the motives of a principal was not to maintain discipline, but to retaliate against a student. In Emmet, the court also ruled that the private relationships of the students settled online cannot become the basis of a disciplinary action of the school administration, as long as they are not school-related activities. In our case, the student wrote that she intended ‘to ruin’ Ted because he initiated a class petition to enjoin her from getting a leading drama role, which was important for her college scholarship. Naturally, this action exasperated her. Ms. Ericksen’s past performance, both academic and social indicates that she is in no way inclined to intetionally bringing any kind of harm. As an academically proactive person and a dedicated college athlete, her first priority was getting a college scholarship, and a reasonably prudent person would understand that her intentions were anything, but aimed at distressing anyone, including the Ted Moseby Wisniewski ex rel. Wisniewski v. Bd. of Educ., 494 F.3d 34 .
The opposing party might argue by bringing Wisniewski in which the court held that that in order to be deemed as school-related activity, the authorities must foresee that the message created in an off-campus setting would reach a substantial number of school staff or students. Wisniewski ex rel. Wisniewski v. Bd. of Educ., 494 F.3d 34 (2nd Cir. 2007). In Wisniewski, the student sent messages directly to other members of the school. The message contained an icon, which depicted a pistol firing at one of the school professors (the face was recognizable), and was sent via one of the popular online messengers. The professor claimed that these messages violated the school policies and successfully sought suspension of that student, which was subsequently challenged in court, arguing that this activity was a private correspondence.
The opposing part may also argue that when the student speech that occurs off campus contains threats of violence pertaining to the school, schools can regulate the speech. J.S. v. Bethlehem Area Sch. Dist., 569 A.2d 847 (2002). In J.S., a student created a website at home entitled “Teacher Sux” and directed the website at his teacher and the principal. Id. at 848. While the speech did not occur on campus, the court found that there was a sufficient connection between the website and the school to bring the student speech under the umbrella of on campus speech. The student “accessed the website at school on a school computer, shared the website with another student, and informed other students about the website.” Id. at 668. Important to the court’s on campus speech analysis was the fact that the website was targeted at a specific audience of students, not a random audience, because the website was aimed at two school personnel, making it closely related to school activities.
The case at bar can be distinguished from Wisniewski as Ms. Ericksen did not create the website specifically for school students, instead it was globally visible to everyone. The main idea behind creation of the web-site was sharing information about swimming events, Olympic rules and other material, which intended recipients were only those, interested in swimming. The site headline specifically highlighted that the platform was ‘for swimmers only’. Eventually, the platform attracted versatile audience (even from other countries), and there is no persuasive evidence demonstrating that the primary group of visitors was from the high school in question. The records of the case do not reveal the number of web-site visitors, and most importantly, they do not reveal the number of students of the same school, who saw the comment. Yet, they precisely state that the website is mostly visited by swimmers, not necessarily from the same school. (R. at 16).
This case can also be distinguished from J.S. in which the student speech was treated to have occurred on campus. Ms. Eriksen did not access the blog during school hours or from school computers. The blog was also not directed at any specific students or school personnel and was aimed at a large and general audience. Because “Sink or Swim” was created off campus and appellant did not access the webpage during school hours or at school, and it was password-protected, it is not school related speech. It is also obvious, that Ms. Erikson could not reasonably foresee that her web site will be accessed by students from the schools, because her web site targeted global audience.
It can reasonably be concluded that Ms. Eriksen’s blog was not school related as the website was targeted globally, and so it was not foreseeable that the speech would reach on-campus. Therefore, Ms. Eriksen’s speech is protected under First Amendment.
Ms. Eriksen’s conduct did not substantially disrupt the school environment because it did not cause academic staff of the school to leave their duties, and the speech was constitutionally protected under the First Amendment.
The Supreme Court held in Tinker that the student speech may not be curtailed unless it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Such a material and substantial disruption should not be confused with unpopular ideas, which receive full First Amendment protections. The fact that students are discussing the speech at issue “is not sufficient to create a substantial disruption, at least where there is no evidence that classroom activities were substantially disrupted.” Neal v. Efurd 645 A.2d 44 (2005). Another factor relevant to the substantial disruption inquiry is whether school officials are “pulled away from their ordinary task to respond to or mitigate the effects of a student’s speech.” Id. at 47. Additionally, there has to be more than “mild distraction or curiosity by the speech in order for the court to consider it substantial disruption.” Kowalski v. Berkeley County Sch. 766 A.3d 555 (4th Cir. 2011).
In addition, in order to apply a legitimate penalty on a student, the academic staff should prove that his/her actions disrupted or could have disrupted a normal academic environment. A student's suspension from school for a website she created violated his freedom of speech and due process rights as there was no disruption to the school or on campus activity in the creation of the website, and his suspension was improper. Mahaffey v. Aldrich, 236 F. Supp. 2d 779 (2002). In Mahaffey, a student created a web-site on his personal laptop, where he posted comments about his hatred to school and his desire towards other students. The court ruled that such emotional comments, posted by a student with high academic record and who has proactive social position in the extra-curricular activities of the school are “not perceived by the classmates or the academic staff a menace, which can disrupt the educational process, and are usually understood as typical teenage disagreements.” Id. at 780. In our case, neither the academic staff, nor the students were prevented from taking their respective parts in a regular academic process. Therefore, there was no disruption.
In order to qualify under the Tinker standard, the actions of the alleged violator should disrupt “educational process or have high probability of potentially disrupting it.” T.V. v. Smith-Green Cmty. Sch. Corp., 807 F. Supp. 2d 767 (2011). In Smith, the students posted several photos from a ‘slumber party’ of the female students, which, in accordance with the view of college administration could result in a disruption of the educational process, because the “‘heroes’of the photos can be socially stigmatized, and fall our of regular studies” Id. at 768. The court ruled that the actions of the student did not establish any substantial risk of disrupting the educational process, when the information dealt with private relationships (not relating to the curricular activities) between the students only. These events of this case were quite commonplace for a typical teenage environment – out of some personal reasons the allegedly aggrieved damaged party started to spread negative information about the student, who, in her turn, responded in a similar manner.
Where a school did not demonstrate that certain rap songs recorded by a student and distributed on the Internet constituted substantial disruption, the student and his parents prevailed in demonstrating a likelihood of success on the merits, and the student's expulsion was enjoined. Latour v. Riverside Beaver Sch. Dist., 455 A.2d 333 (2005). In Latour, a student was suspended from attending the classes after he made a rap song about his relationships with one classmate, who was his former girlfriend. In that song, the author promised ‘to avenge his broken heart’ Id. at 335, although it has not been mentioned what type of vengeance would he execute. The court ruled that such actions could not pose a real hazard to the educational enviromnent unless the school administration proves it. In order to establish that the school administration should organize an investigation by means of “searching locker rooms or conducting other relevant procedures.” Id. at 337.
The case at bar is similar to Mahaffey, such that the student has one the highest academic performance rates in her class (she is among the ten top students out of five-hundred), she is actively involved in swimming team activities, and considering joining the drama project. The actions of the Ted Moseby shadowed her prospects in this regard, especially when the school administrators intervened into the process. Therefore, these actions should be construed as an outburst of emotions only, which exactly fits the description of utterly routine trivial disagreement, described in Mahaffey. Therefore, as long as these posts were a form of private relations between the parties (even though they were hostile), the actions of the student did not collide with the interests of other students, including the allegedly aggrieved party.
Our case is analogous to Smith where the actions of the students were found to be non-disruptive because it did not interrupt with the education. In our case, the remark left on the website administered by the student was entirely personal and vague enough to communicate any specific school-related behavior. Because she promised ‘to ruin’ him, it is reasonable to argue that either her intetions were vague, or she meant something known to her and Ted Moseby. These events of this case were quite commonplace for a typical teenage environment – out of some personal reasons the allegedly aggrieved damaged party started to spread negative information about the student, who, in her turn, responded in a similar manner. Correspondingly, in accordance with Tinker standard, vague speech are not regulated by the substantial disruption test while personal relations between the parties may not attract disciplinary measures.
Similarly, our case is comparable to Latour in which the court ruled that the school officials must prove that the student’s conduct was disruptive to the school environment. In our case, the the entire investigative process was limited to the closed hearing. Therefore, in accordance with Latour failure to apply proper investigative procedures annul the possibility of suspending a student.
The opposing party may argue that when the student speech that occurs off campus contains threats of violence pertaining to the school environment, schools can regulate the speech. J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (2002). In J.S., a student created a website and threatened his teacher and principal with death. The teacher was highly stressed and had to take medical leave. The student was suspended, and the court found that the disciplinary action against student was necessary and it did not did not violate First Amendment rights because his speech caused a substantial disruption in a form that a teacher could not participate in a regular academic work.
The opposing party may also argue that the student’s blog “foreseeably created a risk of substantial disruption, because the language used was disruptive of the efforts to resolve the controversy, and it undermined the school environment.” Doninger v. Niehoff, 527 F.3d 31 (2nd Cir. 2008). In Doninger, the student criticized the school authorities by calling them “douche bags” on a blog for canceling a student council event. The student was banned from running for student council her senior year. The student speech was found to be a disruptive, which was not protected by First Amendment, because the academic staff became criticized by other students, and the academic process became was sabotaged.
Our case is in contrast with Bethlehem, in which the student’s speech was found to be disruptive to the school environment and the court held that the disciplinary action did not violate students’ First Amendment rights because his speech caused a substantial disruption. In our case, Ms. Eriksen never caused substantial disruption in the school, and the actions could not have led the administration to forecast a substantial disruption to the school’s activities, as the words were projected to an individual, which was perceived as a threat to the editor alone and none of the school’s officials. The principal might have acted on the pressure from Mr. Fowler’s mother since she was a staff at the school, hence acting against Ms. Eriksen’s freedom of speech.
Our case is distinguishable from Doninger, in which the court held that the website which was targeted at the school was related to the disruption of school environment. The language used by the student created substantial disruption which made the language not protected under the First Amendment. In our case, the blog of Ms. Eriksen was presented in a humurous way. Ms. Eriksen’s speech did not contain threats of violence that would cause a disruption in the learning environment. There is no indication that appellant’s speech created a disruption that rises to the level of necessitating that disciplinary proceedings or the speech being prohibited.
It can reasonably be concluded that Ms. Eriksen’s speech did not substantial disrupt the school environment because there is no evidence that the speech was violent, and it did not interrupt with the premises of school.
Overall, neither the actions of Ms. Eriksen were on campus, nor they were substantially disruptive. Therefore, actions of the school administrators were not justified.
CONCLUSION
In the case, the Plaintiff Ms. Eriksen went to the court to seek a preliminary injunction to stop the school from imposing punishments and denying her participation in extracurricular activities, claiming the move was against the student’s freedom of speech. The district court ruled in favor of the defendants (Gulf Breeze County Public Schools and Amy Fowler), and the punishments were upheld.
The Court of Appeals should reverse the District court’s decision and grant Ms. Eriksen motion for a preliminary injunction because the School failed to satisfy the Tinker standard and violated Ms. Eriksen’s First Amendment rights.
The Plaintiff, therefore, requests the Court to:
Grant a preliminary injunction, which removes the suspension of Ms. Eriksen for participating in the school extracurricular activities.
