Last week a Massachusetts district court rejected a school district's effort to dismiss a novel student speech case, Bowler v. Town of Hudson, in which school administrators removed the Hudson High School Conservative Club's posters advertising its first meeting because the posters contained the website address for the club's national organization, which in turn contained a link to graphic videos on another site that depicted beheadings in Iraq. Perplexed as to how such a tenuous chain of references and links could warrant the removal of the posters? Well, so was the district court, which rejected the school's motion for summary judgment and allowed the case to go forward to trial.
Back in the fall of 2004, two students at Hudson High School ("HHS") in Hudson, Massachusetts formed a Conservative Club in an effort to provide a forum for pro-conservative views on campus. The HHS Conservative Club was affiliated with a national organization, the High School Conservative Clubs of America, whose slogan is "Protecting American Freedom, Faith, and Morality." Among other things, the group endorses Second Amendment rights, the "restoration" of Christian values to schools and government, and the closing of the nation's borders to all immigrants; the group is opposed to gay marriage, affirmative action, and abortion.
When the HHS Conservative Club put up posters advertising its first organizational meeting, included on these posters was a link to the club's national organization's website. At the time this case arose, this website contained a banner entitled "Islam: A Religion of Peace?" Underneath the banner was a still shot from a video depicting a beheading (the still depicted the scene immediately before the actual beheading) as well as a link to five beheading videos. The links to these videos were accompanied by a warning that the videos were extremely graphic but that the group feels "it is necessary to provide them so you can see the true doctrines of Islam put into action."
Alerted to the HSCCA website by a faculty member, the HHS Technology Director reviewed it and decided to block access to it from all the school computers. When she told the assistant principal about the website, he ordered all of the group's posters removed. The school principal later permitted the group to put up posters as long as the HSCCA website was blacked out. The school officials contend that the graphic content available on the HSCCA website would disturb some of the students at the school, some of whom were under 12, and that the posters threatened to disrupt the operation of the school by requiring teachers to take time away from their lessons to discuss the videos with psychologically scarred students. The leaders of the HHS Conservative Group sued the school district as well as school administrators for violating their First Amendment rights; the defendants later moved for summary judgment to dismiss the plaintiffs' claims.
In the first part of the court's opinion, U.S. District Court Judge Saris treated the summary judgment motion with the ridicule it deserves. She noted how far removed the posters were from actually presenting violent images:
To access the videos, a student would need (1) to view the posters and then, later, (2) access the website (and he could not do so at school because the website was blocked by the time the posters were removed), (3) discover the beheading videos among the other content, (4) navigate past an express warning, and (5) affirmatively click a link to the videos. There is no allegation that plaintiffs were publicizing the graphic content of the website. Thus, students at HHS were not a "captive audience" for the videos; rather, the videos were only available to the students, outside of school, as a matter of conscious choice.
The court also noted that the Technology Director's decision to block the website was akin to censoring a book in the school's library and might also be a separate constitutional violation; unfortunately, however, the plaintiffs in this case had not made that argument.
After such a promising start to the analysis of a novel student speech issue, the district court lost its way when it granted the individual school officials qualified immunity, explaining that "[t]he First Amendment jurisprudence governing a school's regulation of student access to violent speech on the internet with the benign intent to protect students from images which may be upsetting and psychologically damaging is not settled . . . ." The court confused the issue of whether blocking access to the HSCCA website on its computers would be constitutional-certainly an open issue-with the issue of whether it was constitutional to force the group to eliminate any reference to the website on its posters.
As the court itself recognized earlier in its own opinion, the posters themselves contained no violent content and could not possibly have caused any material disruption in the school. Furthermore, it is irrelevant whether the school officials acted with "benign" intent when censoring the HHS Conservative Club's posters. One would hope that school officials are always acting with "benign" intent when engaging in the censorship of their students.
The real kicker in this case is that there was plenty of evidence suggesting that school officials did not in fact have benign intentions when they censored the posters; the plaintiffs allege that they were told that teachers were offended by the group's political views. The district court weakly dodges this issue by contending that the plaintiffs did not "squarely and distinctly" argue that the school's decision was pretextual, and that therefore the argument was waived.