Student speech protections diminish in 5th Circuit

A high school student’s diary containing comments promoting violence against homosexual and minority students and laying out plans for Columbine-like shootings at several schools was enough to lead the school’s principal to call the student a "terroristic threat" and resulted in his arrest. Though no criminal charges were filed against the student, in his civil case against the school, the U.S. Court of Appeals in New Orleans held that administrators can apply zero-tolerance rules to threats of violence and other forms of school speech.  Here, the student in question maintained that his notebook was a work of fiction.

The 5th Circuit panel said it was "follow[ing] the lead" of the U.S. Supreme Court’s 2007 decision in Morse v. Frederick, where the Court held that a school administrator did not improperly suspend a student for displaying a controversial message — "Bong hits 4 Jesus" — on a banner at a school-sponsored event. First Amendment advocates with a view that student speech should be protected just as "adult" speech is protected had hoped the circuits might more narrowly apply Morse.

In an analysis of the case, a commentary by the First Amendment Center discussed the effect of the ruling in the 5th Circuit:

School administrators in the 5th Circuit thus now may apply zero-tolerance rules to any speech about violence against students. The threat of violence need not be credible, imminent or even possible. It need not be widely disseminated or even disseminated at all at school. Any speech about violence against students, even if clearly fiction or fantasy, is without First Amendment protection in that circuit.

The hope is that circuits hearing cases such as this in the future will look back to the standard under Tinker v. Des Moines Indep. Sch. Dist. that required a court to look at the existence of actual disruption or the likelihood to cause substantial disruption, and perhaps extend that to a case like this to require a finding of a likelihood of violence rather than such a narrow "zero-tolerance" policy that extends even to works of student fiction.