For the remainder of this week I’m going to tell you about two student discipline cases from Pennsylvania that were overturned by the courts. There are lessons to be learned. First, let’s focus on what is and is not a “true threat.” 

The fact of this case reminded me of the common parlor game: “what was the first concert you attended?”  I’m pleased to report that my answer to that question is Peter, Paul and Mary in Tulsa, Oklahoma approximately 1963.  The edgiest part of that concert was “Puff, the Magic Dragon” because….well… you know, it wasn’t really about a magic dragon. 

Things are a lot edgier today.   Somewhere in America today there is a kid whose answer to the “first concert” question is going to be “Cannibal Corpse.”   I had not heard of this group until it came up in the case I’m about to tell you about.  Turns out the group has been around since 1988 and has produced 15 studio albums, two box sets, four video albums and two live albums.   They’ve had a good bit of success with album titles like “The Wretched  Spawn,” “Gore Obsessed” and “Violence Unimagined.”  I much prefer “Where Have All the Flowers Gone?”

So two boys in Pennsylvania were Snapchatting over a period of ten days.  Some of this involved mocking another student and joking about the possibility that he would be a school shooter because he liked Cannibal Corpse.  The Snap that caused all the hoopla (and litigation) was a meme video sent by J.S. (aka “the plaintiff”) in which the other boy was captioned as planning to kill other students, tie them up and eat them.  Whoa.  The court noted that this kind of talk was similar to the lyrics of some Cannibal Corpse songs. What else would you expect with a name like that?

All of this was off-campus activity.  The video was posted on Snapchat for all of five minutes, and seen by no more than 40 other kids, but that was enough time for it to come to the attention of the school.  Cops showed up at the home of the soon-to-be plaintiff early the next morning.  After interviewing J.S. and his parents, they reported to the school that there was no threat. No criminal charges were filed, but the school expelled J.S. for making a terroristic threat and cyberbullying. 

That disciplinary decision was overturned by the  Pennsylvania Supreme Court.  The court noted that a “true threat” is not protected by the First Amendment, but this “mean-spirited, sophomoric, inartful, misguided and crude” posting on Snapchat was not a “true threat.” The court held that “the primary focus” in determining if words amount to a “true threat” should be the “subjective intent of the speaker.” You have to consider “the totality of the circumstances” and for students, this includes “the student’s age, maturity, and lack of judgment.”  

Thus the video meme referencing Cannibal Corpse was not intended to threaten anyone and did not amount to a “true threat.” Since all of this Snapchatting happened away from school, on the boys’ personal devices, and was not a “true threat” it was protected free speech under the First Amendment and the school goofed by expelling the student. 

That is, unless the school could show that the Snapchat video caused a material and substantial disruption of school.  The court addressed that issue also. Come back tomorrow for that!

This is J.S. v. Manheim Township School District, decided by the Supreme Court of Pennsylvania  on November 17, 2021.

DAWG BONE: WAS IT A “TRUE THREAT”?  FOCUS ON WHAT THE SPEAKER TRULY INTENDED.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: the court  second guesses the superintendent.