Can a two-word tweet test the limits of free speech?

By Mike Mosedale
The Daily Record Newswire
 
MINNEAPOLIS — On Jan. 26, 2014, an anonymous user at a website called “Rogers Confessions” asked whether it was really true that “@R_Sagehorn3” had made out with a young female gym teacher at Rogers High School.

The target of the tweet — a then-17-year-old senior at the high school named Reid Sagehorn — responded with the two words, “Actually, yeah,” in what he would later insist was pure sarcasm.

Sarcastic or not, Sagehorn could not have predicted the fallout, which seemed to escalate at every turn. As a five-day suspension grew to a 10-day suspension, Sagehorn’s parents locked horns with school administration, which doubled down and pressed for an expulsion. Sagehorn withdrew from the district.

The Rogers Police Department became involved as well, with the police chief publicly declaring that Sagehorn’s tweet constituted a crime against the gym teacher. In one widely quoted statement, he even warned that Sagehorn — still a minor at the time — might even face “felony charges” for defaming the blameless gym teacher with the tweet.

As events unfolded, the story went viral. And why wouldn’t it? It was a natural talker, rife with the sorts of themes reporters and audiences revel in: a salacious (if entirely cheeky) intimation of forbidden sex between student and teacher, the limits on free speech, and the nature of the generational divide. And it gave barstool philosophers ample room to pontificate on the response of the school and police, a response that struck many as heavy-handed.

Among those intrigued by the case was Ron Rosenbaum, the St. Paul attorney and former talk radio host who appears regularly as guest on the sports station KFAN.

“I was following the story in the paper and was absolutely shocked that the police chief was talking about this as if it was a felony, let alone a crime,” Rosenbaum said. “And I was critical of the way it was being reported by the media. Nobody ever bothered to ask questions about the felony the police chief about was talking about.”

He noted that the state’s criminal defamation statute — which was struck down earlier this year as unconstitutional — wasn’t even a felony; it was a gross misdemeanor
After Rosenbaum talked about the case during a drive time segment on KFAN, he received a message from Sagehorn’s dad, Curt, asking for help. Rosenbaum agreed and promptly recruited two of the bigger names in the Twin Cites legal community to the cause: Joe Friedberg, the celebrated criminal defense attorney, and Bob Bennett, the Minneapolis trial lawyer famous for racking up big settlements and awards in police misconduct cases.

Bennett and Paul Dworak, his associate at the downtown firm of Gaskins Bennett Birrell Schupp LLP, took the lead and, within four months, that snarky two-word quip Sagehorn launched into cyberspace — and the response it elicited — had given birth to a federal lawsuit.

Among those named as defendants: Independent School District 728, the Rogers High School principal, the assistant principal, the police chief and police department’s school liaison officer. Along with the First Amendment claims, Sagehorn brought a defamation claim against the police chief, arguing that the chief’s claim that Sagehorn had exposed himself to criminal defamation charge was itself defamatory.

As Bennett tells it now, the entire controversy could have been squelched if school officials had accepted his client’s offer to apologize. He is downright dismissive of the notion that the governing legal principles in the case are altered by the fact that Sagehorn’s statement was made online.

“Everybody likes to say this is some new phenomenon,” he said. “If you listen to school administrators and pundits, you’d think that we’re in some new age, that social media has changed the landscape and what school administrators should be allowed to do. But the law has been settled on this for a long time.”

‘Social media panic’

If there is one constant in that perennially fraught relations between the worlds of teens and adults, it is that kids love to say the sort of things that make adults want to say, shut up. And if there is one constant in the American system of jurisprudence, it’s that such conflicts occasionally wind up in court, where free-speech rights are weighed against school officials’ desire to maintain a safe, orderly learning environment.

But if those age-old dynamics have not been transformed by the emergence of social media (as Bennett insists), they certainly have been amplified. Statements kids once uttered in private now reverberate through cyberspace, so parents and teachers have a lot more opportunity to get wise.

Around the same time Reid Sagehorn posted his comment on the Rogers Confessions website, administrators in the San Diego school district became aware of a similar confession-themed site, @SDSchoolConfess, which traded in similarly transgressive content. Authorities there were quick to drop the hammer, suspending approximately 60 students, some of whom had done nothing more than tweeti out a link to the site.

Across the country, similar controversies have produced enough litigation that the National School Boards Association keeps a circuit-by-circuit summary of case law concerning off-campus online speech.

Frank LoMonte, the executive director of the Washington, D.C.-based Student Press Law Association, says his group has tracked conflicts over online student speech as closely as anyone.  Such “extreme overreactions to speech in social media” is common place in the nation’s schools, said LoMonte, who ventures that the phenomenon is propelled by a “social media panic.”

While schools often suspend students for relatively tepid online comments no worse than Sagehorn’s “Actually, yeah” quip, LoMonte said, the Sagehorn case is distinctive
in one regard: the severity of the punishment, a defacto expulsion for a student with an otherwise spotless record.

According to Roger Aaronson, the longtime counsel and lobbyist for the Minnesota Association of Secondary School Principals, not that many students get disciplined over their online speech in Minnesota these days. With a philosophic shift in educational circles leading to major declines in the overall student suspension rates, he notes, those numbers aren’t likely to grow.

“We talk about it a lot. But given the amount of kids we have and the amount of mischief that happens, it’s not much,” he said. “There’s some crummy stuff that kids put on line. The main thing that administrators want is to get them to take it down. If there’s a threat, that’s treated differently. But we try to be careful before taking any action because it’s hard to meet the constitutional standards.”

Aaronson said he knows of just one Minnesota lawsuit over social media and student discipline that has produced a cash settlement — a 2012 case brought by the American Civil Liberties Union of Minnesota against the Minnewaska School District.

In that case, the district paid out $70,000 to the former sixth-grader who was given detention for posting negative comments about a teacher’s aide and was later pressured to surrender the passwords to her Facebook page and email accounts because of rumors she had an online discussions about sex.  While the school admitted no wrongdoing, it did agree to revise its policies.

At the start of each school year, Aaronson conducts legal workshops for school principals across the state. “I always say, ‘You’re a much better administrator than you are a litigant.’ And they get that,” he said. His message on how to handle social media issues and student discipline boils down to a simple mantra: If it happened on the weekend and there’s no connection to school, then it’s not our business.

But what if there is a connection to the school?

“The standards are still pretty high,” Aaronson said. Under the landmark 1969 U.S. Supreme Court student speech case, Tinker v. Des Moines Independent School District, schools can’t punish or restrict speech unless they can establish it could create “a substantial disruption” in the school environment.

Not a murky area of the law
U.S. District Court Judge John Tunheim recently issued the first major ruling in the Sagehorn litigation — a 45-page memorandum, opinion and order that denied most of the defendants’ motion to dismiss and kept the suit on track for discovery.

Among the argument’s Tunheim rejected was the notion that the Sagehorn tweet meets the Tinker standard for substantial disruption. Even if Sagehorn intended the tweet to cause chaos, Tuheim wrote, “There is no indication that any disruption, was, in fact, caused by the Sagehorn’s post.”

Likewise, Tunheim rejected the longshot motion to dismiss on the grounds that Sagehorn’s tweet was obscene because some dictionaries include sexual intercourse in defining the term “make out.”  “The stark contrast between Sagehorn’s speech and speech that would now be considered obscene is particularly evident when this case is compared to other recent obscenity cases,” Tunheim wrote.

Nor did Tunheim seem receptive to the notion that perhaps school officials deserved some slack because the Supreme Court hasn’t squarely addressed how to regulate off-campus speech in the era of social media.

“While the internet may pose new challenges, it did not change the law,” Tunheim wrote. “At this stage, the Court is not persuaded by the School Defendant’s argument that this was a murky area of speech. The School Defendants do not get the benefit of the doubt merely because the Supreme Court has not specifically authored a decision on this issue.”

Will the case settle?
Although it’s still in the early stages, Bob Bennett said the opinion from Tunheim — along with a similar ruling from U.S. District Court Judge Michael Davis in the ACLU case out of Minnewaska — should give the defendants incentive to work out a settlement before things get expensive. As a civil rights claim, he noted, the loser has to pay the prevailing party reasonable costs — including his court approved hourly rate of $650 an hour.

“I think the magistrate wants to take a shot doing the obvious thing — put this to bed before half the free world’s supply of money is spent,” Bennett offered. “If we can’t get it done, we can’t get it done.  But the only deposition we’ve taken went horribly for them. It’s not going to get any better.”

According to Paul Dworak, that deposition — of the parent who originally reported the existence of the Rogers Confessions website to a school counselor — forced the school to strike a portion of its brief.

“They’re trying to meet that substantial disruption standard by saying that this tweet from Reid  as so disturbing to this person who had actually seen it called up the school to report it. We took one deposition and found out that wasn’t true,” said Dworak.

On the contrary, Dwoark said the parent testified that she hadn’t seen the Sagehorn tweet and only alerted the school because she was alarmed by other statements made on Rogers Confessions, including boasts about drinking at school and having sex in the gym.

Liz Viera of Rupp, Anderson, Squires & Waldspurger, P.A., the firm that’s representing the school, said it’s too early to make any predictions about the outcome of the case. But she wasn’t particularly surprised by anything in Tunheim’s order and cautioned against reading too much in it.

“From our perspective, the district court decision is of little value in terms of predicting how the case will go because the judge was required to rely only on the plaintiff’s pleadings. The district has yet to tell its side of the story,” she said.

When that happens, she said “more of the nuances will come out,” including, she hopes, enough evidence to support the school’s position that the Sagehorn tweet created a “reasonable forecast of substantial disruption.”

Unlike Bennett, Viera casts the issues of online student speech as “a rapidly evolving” and unsettled area of law.

“Courts are faced with trying to apply old standard — where it’s pretty clear cut what’s on school district property and what’s off school property — to a world where every student has a smart phone or access to social media,” she said.