Police blotter: Student sues over IM-related suspension

New York school suspends a student due to allegedly "threatening" instant-messaging icon naming a teacher.

"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.

What: A student at Weedsport Middle School sues after being suspended for a semester for having an allegedly "threatening" instant-message icon on his home computer.

When: A federal judge in the northern district of New York rules on June 20.

Outcome: U.S. District Judge Norman Mordue rules in favor of the school district, dismissing the student's claims.

What happened, according to court documents: Aaron was 15 years old in April 2001, when he created an icon for his home computer's instant-messaging program. (CNET News.com has withheld Aaron's last name because of his age at the time the suit was filed.)

The icon showed a gun pointing to a head, a bullet leaving the gun, and blood splattering from the head. It included the words "Kill Mr. VanderMolen," the name of Aaron's English teacher at Weedsport Middle School.

Aaron's home computer sported this icon for about three weeks, until another student tipped off VanderMolen.

Although the students apparently viewed the icon as a joke, VanderMolen did not. He later testified that he was scared, concerned and felt sick to his stomach upon reading the message. He asked to be removed from teaching the English class because he was concerned for his safety and that of his 6-month-old child. The school principal claimed that VanderMolen appeared anxious and fearful. (Aaron had no serious disciplinary problems until then.)

As a result, the school district sent Aaron's parents a notice of a formal disciplinary hearing and also tipped off the sheriff's department (which declined to do anything, concluding that the icon was indeed a joke). Meanwhile, a psychologist concluded that Aaron did not pose a threat.

Nevertheless, the school district's hearing officer concluded: "Aaron did commit the act of threatening a teacher, in violation of page 11 of the student handbook, creating an environment threatening the health, safety and welfare of others, and his actions created disruption in the school environment."

The school board subsequently suspended Aaron for the first semester of the 2001-2002 academic year, effective Sept. 26, 2001.

His parents sued, claiming that the icon was protected by the First Amendment's guarantee of freedom of speech, that the school district failed to train staff in proper threat assessment and that the school board violated state law in not following proper procedures.

Mordue rejected the free-speech claims, saying the "icon constituted a true threat unprotected by the First Amendment." Mordue dismissed the state law claims as well, though Aaron has the option of filing them again in state court.

Excerpt from court's opinion: "The First Amendment protection of free speech does not extend to certain types of speech, including threats of violence. The Second Circuit has observed that First Amendment protection is forfeited where "the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.

"In any event, as a matter of law, Aaron's icon constituted a true threat unprotected by the First Amendment. As is clear from the factual recitation above, virtually all material facts are undisputed. On their face, the words 'Kill Mr. VanderMolen' and the accompanying graphic cannot be viewed as anything but an unequivocal, unconditional, immediate threat of injury specific as to the person threatened, such as conveys a gravity of purpose and imminent prospect of execution.

"Likewise, the surrounding circumstances--including the effect of the icon on Mr. VanderMolen and school officials, Aaron's awareness of the school's position that a threat was not a joke, the absence of any factor to suggest that the icon was a joke and the general increase in school violence--establish that an ordinary, reasonable recipient who is familiar with the context of the icon would interpret it as a serious threat of injury.

"There is no merit to plaintiffs' assertion that questions of fact exist due to the conclusions of the Sheriff's Department and Dr. Lesswing that Aaron did not pose an actual threat and did not intend to carry out the threat. It is well-established that lack of intention or ability to carry out a threat is not relevant.

"Further, to the extent that plaintiffs attempt to argue that Aaron's conduct was purely out-of-school conduct, the undisputed evidence establishes that the icon was a threat to kill a teacher at the school, that Aaron circulated it among classmates for three weeks; that he had no reasonable expectation that it would not come to the attention of school officials; that when it did so, it caused a substantial disturbance at the school; that it is reasonable that it should have done so; and that Aaron had reason to expect that it would do so."

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