In re Appeal of G.S., 269 A.3d 718, 722 (Pa. Commw. Ct. 2022), appeal denied, 61 MAL 2022, 2022 WL 2447538 (Pa. July 6, 2022) (The Pennsylvania Commonwealth Court determined that the expulsion of a student for a social media post contained violent song lyrics violated the student’s First Amendment free speech rights).
BACKGROUND
G.S. was an eleventh-grade student at Rose Tree Media School District (“the School District”). In April 2018, G.S. used his personal smartphone while on Easter vacation to post the following song lyrics from a death metal band on his Snapchat: “Everyone, I despise everyone! / F— you, eat sh–, blackout, the world is a graveyard! / All of you, I will f—ing kill off all of you! / This is me, this is my, snap!” The snapchat was not directed toward the School District or any of its students, although some of his Snapchat followers who took notice of the post, independently reposted screenshots of it on different social media applications. One student even tagged their repost on Instagram with the phrase “@penncrest_students.”
Parents of other children in the school district reported the post to the Pennsylvania State Police (“PSP”) who conducted an investigation. In response, the local Assistant District Attorney signed off on charging G.S. with the crime of terroristic threats and harassment, due to the violent sentiment contained in G.S.’s post, and School District administration, including the District Superintendent, was made aware of the issue. At this point, neither local law enforcement nor School District officials were aware of the true provenance of G.S.’s post and, instead, were operating under the presumption that it constituted a legitimate threat of violence.
When G.S. was brought in for questioning, he admitted that he was responsible for the Snapchat post, but maintained that he never intended to harm anyone and was simply reposting song lyrics. G.S. was subsequently arrested, his phone was confiscated, and he was taken to a nearby juvenile detention center.
The community expressed their concern about G.S.’s post which prompted the School District to disseminate a pre-recorded telephonic message and an e-mail to parents and to update their main School District Webpage regarding the incident. There was increased police presence at the school the following day, there was decreased student attendance, and those students who did attend appeared to be anxious and on-edge during the school day. The School District also received a second terroristic threat from another student, which prompted it to send out another message to parents.
G.S. underwent a psychological evaluation while in the juvenile detention facility. The evaluation revealed that G.S. was low-risk and did not appear to have underlying anger or depression issues that posed a risk to the community. Accordingly, it was recommended that he be released from the facility. After G.S.’s release, the School District expelled him on the grounds that he violated the District’s Discipline Code by making terroristic threats, disrupted the school environment, and constituted harassment.
G.S. appealed the School District’s decision to the Court of Common Pleas, which reversed the School District’s decision in part and affirmed it in part. The Court held that the School District’s determination that G.S. had made terroristic threats was not supported by substantial evidence and reversed that portion of the School District’s decision. However, it concluded that the School District did not abuse its discretion by determining that G.S.’s Snapchat post had constituted harassment and had disrupted the school environment and affirmed the School District’s expulsion of G.S. on those bases. Both parties then appealed to the Commonwealth Court of Pennsylvania.
DISCUSSION
The Commonwealth Court noted that the Pennsylvania and United States Supreme Courts have long recognized the inherent tension between students’ First Amendment-based right to freedom of speech and public schools’ ability to control their charges’ expressive conduct or to mete out discipline. Recent case law establishes limitations on schools’ discipline of student for off-campus speech, observing that: (1) schools will rarely stand in loco parentis, as off-campus speech normally falls within the zone of parental responsibility; (2) courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all; (3) the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, as America’s public schools are the “nurseries of democracy” and should protect the “marketplace of ideas” which may include the protection of unpopular ideas that have a greater need for protection.
In this context, the Commonwealth Court considered the recent Pennsylvania Supreme Court case, J.S. by M.S. v. Manheim Township School District, 263 A.3d 295 (Pa. 2021), which established a two-part test for assessing student speech. The test places an emphasis on the totality of the circumstances and states that courts should first consider the substance of the offending conduct or speech followed by examination of the context in which that conduct or speech occurred. In its analysis, the Commonwealth Court continued to note that the First Amendment and Article I, Section 7 of the Pennsylvania Constitution mandates 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.
The Court determined that G.S.’s speech occurred off-campus and did not explicitly target or identify other students or community members. Accordingly, the Court determined that the School District’s punishment of G.S. for his social media post violated his First Amendment free speech rights.
PRACTICAL ADVICE
As demonstrated by the decision In re Appeal of G.S., schools’ disciplinary jurisdiction does not generally extend to off-campus speech of students that may be interpreted as generally threatening or expressing an interest in violence. Whether such speech constitutes a true threat to the school, staff or students requires consideration of the totality of circumstances of the speech or a substantial and demonstrable disruption to the school environment.
