This case involves a 14 year old student HK (and his friends) who, while off-campus, thought it would be funny to create a fake Instagram profile of his biology teacher, Schmidt. I’ve blogged SO MANY similar cases since 2005 (see the list of posts below). The principal immediately suspended HK for 5 days. After a hearing, the superintendent gave HK a 10-dy suspension “for his actions on May 11-13, 2019, including: gross misbehavior for his posting a fake Instagram account impersonating a teacher (under an assumed name), posting to that account as the teacher, and sharing the username and password with other students.” HK sued the school for First Amendment and Due Process violations. News coverage of that filing. The court dismisses the lawsuit.
Citing Mahanoy, the court says it “must balance Defendants’ interest in disciplining H.K. for the Instagram account against the off-campus features of his speech”:
The Instagram account impersonated Mr. Schmidt with great detail. It contained his full name, identified his occupation as a biology teacher at Freeland High School, identified his wife and children, and included real pictures of him and his family. In Mr. Schmidt’s words, the account “was set up in a way that made me believe that it could be me.” The Instagram account made it look like Mr. Schmidt was “gangbanging” his wife, having a sexual affair with Mrs. Howson, and threatening to kill Mr. Anderson….
In light of the highly targeted nature of the threats and harassment on the account, it certainly qualifies as “serious or severe bullying or harassment targeting particular individuals” and “threats aimed at teachers or other students,” and Defendants have a significant interest in regulating this type of off-campus speech.
The court doesn’t discuss the degree to which the fake account constituted parody or misdirected attempts at humor. Without seeing the content in question, it’s hard to know if that’s because the posts lacked humor or because the judge was humorless.
Section 230 thus provides immunity from civil lawsuits, and H.K. is not being sued for his speech or conduct. Rather, H.K. is a minor student who was disciplined by his school for his off-campus speech who is now bringing his own suit against the school. As such, Section 230 is inapplicable to this matter
I don’t think that’s right. The relevant legal action is the school’s suspension of HK. If the suspension was based on the actions of HK’s friends, then the school held HK liable as the publisher/speaker of third-party content. This would make the school’s action unlawful and constitute a violation of HK’s First Amendment rights. Note, however, that because HK committed some of the acts in question, a 10-day suspension might have been appropriate even if HK had been evaluated solely on his actions. The court might have implied that but never said it.
The court instead said: “a school can punish a student for participating in online group bullying, even where the disciplined student may not have been the main offender.” In theory, such punishments shouldn’t implicate Section 230 because they punish for the act of bullying, not the publication of content. (Though if the only bullying actions were content publication, this sometimes becomes a distinction without a difference). The court describes HK’s first-party conduct:
H.K. created the Instagram account that functioned as the online platform through which K.L. and L.F. made the harassing posts. H.K. was the one who set up the account to impersonate Mr. Schmidt. H.K. took a picture from Mr. Schmidt’s personal Facebook page to make the account look more like it was Mr. Schmidt. H.K. knew his friends were publishing the harassing posts and he retained control over who could follow the account
The first three facts are appropriately attributed to HK. The last fact isn’t. That sentence positions HK as something like a page moderator who has editorial power over the page but, per Section 230, should not be liable for failing to exercise it. Furthermore, it’s unclear if the Instagram page as created by HK, without KL and LF’s contributions, would rise to the level of online “bullying.” If it’s a fake Instagram profile with no salacious content, is it really creating any harm?
Unlike most other teacher impersonation cases, the school showed how this impersonation account impacted the school environment. Apparently it was convincing enough that other students and teachers thought it really was Schmidt’s account. Furthermore,
Students approached the teachers to ask about it, and students were gossiping about it when they should have been doing schoolwork. The targeted teachers were so distressed that it impacted their ability to teach, and it made Mrs. Howson cry during class. Furthermore, by lunchtime, the situation at Freeland High School had escalated such that H.K.’s friends advised him to delete the account.
While this opinion leaves open the possibility that HK is being punished for things he didn’t say, I don’t have a ton of sympathy for GenZers who think that online accounts impersonating teachers are fresh or novel. GenXers were pulling similar stunts 40+ years ago (maybe using mimeograph machines, but whatever), and I’ve been blogging virtually identical cases for 17+ years. Apparently, despite the venerable history of such students, each crop of 14 year old boys must independently traverse this path themselves.
Case citation: Kutchinski v. Freeland Community School District, 2022 WL 3130218 (E.D. Mich. Aug. 4, 2022). The CourtListener page.
Selected related blog posts:
* School Can’t Discipline Student For Off-Campus Snapchat Messages–Mahanoy School District v. BL
* High School Can’t Expel Student for Sharing Memes in Private Snapchat Conversation–JS v. Manheim Township School District
* More Teenagers Mistakenly Think “Private” Chat Conversations Will Remain Private–People v. JP
* Must Universities Shut Down Constitutionally Protected Speech Forums That Also Enable Student Harassment?
* Twitter Isn’t Liable for Impersonation Account–Dehen v. Doe
* Court Affirms Stalking and Harassment Conviction for Tagged Tweets–In re AJB
* University Defeats Cyberbullying Lawsuit Related to Yik Yak–Feminist Majority v. UMW
* Facebook Isn’t Liable for Fake User Account–Caraccioli v. Facebook
* University Rejection of Students’ Marijuana-Themed T-Shirt Violates First Amendment–Gerlich v. Leath
* Student Disciplined for Posting Threatening Mashup Video to Instagram–AN v. Upper Perkiomen School District
* Tweeting Death Threats Isn’t Juvenile Delinquency–In re R.D.
* University Cannot Discipline Student for Off-Campus Tweets
* Qualified Immunity Bars Claims Based on Search of Student’s Facebook Account and Discipline for Private Messages
* School District Wrongly Disciplined Student for a Two Word Tweet
* First Amendment Bars School Discipline For Student’s Rap Video About School Coaches
* Two Student Threat Cases Illustrate Gross Disparity in Treatment of Student Speech
* Ill-Advised Student YouTube Video Leads to Conviction For Misusing Computerized Communication System–In re Kaleb K.
* University May Be Liable for Improper Access to Student’s Facebook Photos – Rodriguez v. Widener Univ.
* Crass and Offensive Tweets by Student May not Justify Suspension — Rosario v. Clark County School Dist.
* Misguided Catfishing Scheme Leads to Discipline of College Students — Zimmerman v. Ball State
* Another School Violated a Student’s First Amendment Rights by Disciplining Her For Facebook Posts — R.S. v. Minnewaska Area School Dist. No. 2149
* Mortuary Student Can Be Disciplined for Facebook Posts–Tatro v. University of Minnesota
* Suspension for Facebook/YouTube Rap Video Critical of High School Coach Does not Violate First Amendment – Bell v. Itawamba County School Board
* Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech–TV v. Smith-Green
* Mortuary Sciences College Student Disciplined for Threatening Facebook Posts–Tatro v. University of Minnesota
* Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation–Doninger v. Niehoff
* Nursing School Can’t Expel Students for Posting Photo to Facebook–Byrnes v. Johnson County CC
* Sending Politically Charged Emails Does Not Support Disturbing the Peace Conviction — State v. Drahota
* Private Facebook Group’s Conversations Aren’t Defamatory–Finkel v. Dauber
* Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles
* Private High School Not Liable for Cyberbullying–DC v. Harvard-Westlake
* Nursing Student’s Blog Post Doesn’t Support Expulsion–Yoder v. University of Louisville
* Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page–Draker v. Schreiber
* Court Upholds Student Suspension For YouTube Video of Teacher
* Teenager Busted for Creating Fake “News” Story
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