Original URL: http://www.theregister.co.uk/2007/07/12/im_aim_icon_suspension/

Student's suspension for IM buddy icon upheld by US court

Ready . . . AIM . . . censor!

By Kevin Fayle

Posted in Law, 12th July 2007 18:15 GMT

Student speech in the US continues to take a beating.

The Supreme Court, in the infamous "Bong Hits 4 Jesus" case decided last month, signaled to the federal judiciary that it was open season on student speech. Indeed, Justice Clarence Thomas, in a concurring opinion, argued that students should have no free speech rights whatsoever.

Justice Thomas' opinion carries no precedential weight, but the message was clear: this is a stern, paternalistic Court that will not tolerate horseplay from those punk kids.

Now the ripples from that case's jurisprudential cannonball have started to radiate. In a case decided last week by the 2nd Circuit Court of Appeals, the court upheld a semester-long suspension because of a student's AOL Instant Messaging buddy icon against a First Amendment challenge brought on the student's behalf by his parents.

The school, Weedsport Middle School in New York, suspended the student, Aaron Wisniewski, after it came to the attention of school administrators that Wisniewski's AIM account displayed a crude drawing of a pistol firing a bullet at a person's head, with the caption "Kill Mr. VanderMolen." VanderMolen taught Wisniewski English at the time.

Wisniewski displayed the icon in his communications with AIM contacts - some of whom were also Weedsport students - for three weeks. Wisniewski never displayed the icon to the teacher in question or any other school official.

The school administration only became aware of the buddy icon after one of Wisniewski's classmates told the teacher about it and provided him with a copy. The teacher forwarded the icon to school officials, who suspended Wisniewski for five days and ordered a review of the situation by the superintendent.

During this time, a police investigator interviewed Wisniewski and concluded that the icon was meant as a joke, and that Wisniewski posed no real threat to the teacher or the school. A psychologist who evaluated Wisniewski reached the same conclusion.

The superintendent's review found otherwise, however, ruling that the icon was threatening, and not meant as a joke. The review also found that, although the icon was only displayed outside of school, it violated school rules and disrupted school operations. The reviewer dismissed the opinions of the investigator and psychologist, stating that Wisniewski's intent was irrelevant to the inquiry.

The review recommended a semester-long suspension for Wisniewski, which the school district's Board of Education approved. Because of hostility from the school and community, the Wisniewskis eventually moved away from Weedsport.

The 2nd Circuit bypassed the question of whether Wisniewski's icon constituted a "true threat" (and the messy factual questions brought up by the conclusions of the investigator and psychologist) by applying the law of an earlier, landmark school speech decision - the same case used by the "Bong Hits 4 Jesus" decision as justification for upholding the suspension of a student who held up a drug-related banner across the street from his school.

The case allows for the suppression of speech that would materially disrupt the work and discipline of a school. In addition to that ruling, the 2nd Circuit has also previously ruled that off-campus behaviour that creates a foreseeable risk of disruption can also be punished.

The court in Wisniewski's case decided that, because it was reasonably foreseeable when Wisniewski distributed the icon that the icon would eventually come to the attention of school officials and create a substantial disruption, the school could punish Wisniewski for the icon's content.

The buddy icon was undoubtedly sophomoric, stupid and in poor taste - not even the student disputed that. But the legal reasoning the court employed should trouble free speech advocates and students who choose to employ their education to engage in discussions of unpopular, and possibly disruptive, viewpoints. Overzealous and partisan school administrators could easily apply the standards employed by the court to suppress legitimate speech that occurs away from school campuses.

After all, it's reasonably foreseeable that a group of students could conspire on Facebook to stage a walk-out to protest the war in Iraq, or to pull a school's fire alarm to protest the perceived offer of amnesty to illegal aliens. News of the plans could disrupt school activities if details ever leaked out - even if the walk-out and fire alarm never actually occurred.

In both cases, it is reasonably foreseeable that mere rumor of the plans could disrupt school activities. The students could then be punished merely for stating ideas and opinions on the website, without taking any actual disruptive action.

Of course, that's exactly the result that Justice Thomas was looking for: a student body forced by school administrators into cowed submission in order to engage in rote memorization of whatever crap is printed in their textbooks.

Actual thought and expression will not be tolerated. ®