Opinion handed down October 17, 2012
On January 11, 2012, the Lee's Summit R-7 School District ("the School District") suspended twin brothers Steven and Sean Wilson ("the Wilsons”) for 180 days because of inappropriate content posted on a website the Wilsons created.[2] The Wilsons sued the School District alleging the School District violated their rights to free speech. The Wilsons also filed a Motion for Preliminary Injunction to lift their suspensions.[3] The District Court granted the injunction, effectively allowing the Wilsons to return to school, but the School District appealed.[4] A three-judge panel of the Eighth Circuit overturned the District Court’s preliminary injunction.[5] The brothers had not met two of the four elements of their claim, and the panel held that they likely would not be successful on the merits.[6] The speech was punishable under the famous Tinker analysis and the harm was purely speculative.[7]
I. Facts & Holding
In December of 2011, the Wilsons created a website named NorthPress. The website contained a blog, the purpose of which was to provide a forum to discuss and complain about events at Lee’s Summit North High School.[8] The domain was Dutch, which prevented it from showing up in a Google search by American users, but anyone who knew the website address could access it.[9] Throughout the first week the website was up, the Wilsons posted racist comments about black students and sexually explicit remarks about named female classmates.[10] Third parties were capable of posting comments as well, and in fact did. The location of the posters, and whether school computers were used to contribute to the website or merely view it, were not readily discoverable.[11] The Wilsons further maintained that they only told a half dozen friends about the website, which was to remain relatively private; however, word quickly spread and the website’s existence. Specifically, its address was well known at school and at least one third party also posted on the blog.[12] As a result, Lee’s Summit North suspended the Wilsons for ten days and referred their case to the School District, which then suspended them for 180 days and allowed them to transfer to Summit Ridge Academy over the course of the suspension.[13]
At a preliminary injunction hearing, the Wilsons testified that their website did not cause any significant disruption at school and that third party posts caused the most disruption on December 16, 2011.[14] The Wilsons also alleged that Summit Ridge Academy was an insufficient academic alternative and that they would be harmed if they were forced to switch schools.[15] This allegation was primarily due to the fact that no honors classes were offered at Summit Ridge Academy, and both Wilsons were Lee’s Summit North Band members hoping to garner college band scholarships.[16] The School District put on evidence that their was significant disruption resulting from students accessing or attempting to access the website.[17] Several teachers testified that December 16 was one of the most disrupted days of their teaching careers, and news media showed up at the school.[18] Parents called in worried about “safety, bullying, and discrimination,” and administrators also expressed concern that the Wilsons themselves would not be safe until things calmed down.[19]
The District Court held that there was significant disruption at Lee’s Summit North on December 16, but the majority was caused by a third party post.[20] It did, however, acknowledge that two Wilson posts, one about a female classmate and the other regarding race, were contributory factors to the chaos.[21] Nevertheless, the District Court determined that the Wilsons would suffer irreparable harm if forced to give up their band positions and study at Summit Ridge Academy.[22] As such, the District Court found the “balance of equities clearly favored the Wilsons” and granted the injunction, concluding that the injunction posed no material harm to the School District.[23]
On appeal to the Eighth Circuit, the School District argued two issues: (1) whether the District Court erred in finding sufficient evidence of irreparable harm; and (2) whether the District Court erred in determining the Wilsons’ likelihood of success.[24] According to the School District, granting the preliminary injunction should have been treated more like granting a permanent injunction because the Wilsons will likely graduate before the case is resolved, which effectively means the preliminary injunction was the equivalent to granting all the relief sought by the Wilsons.[25] Though the Eighth Circuit did not find that the District Court made inadequate factual findings, it did find that the findings did not support the relief granted.[26] The Eighth Circuit held that under relevant caselaw, the Wilsons were unlikely to succeed on the merits and that sufficient irreparable harm to justify a preliminary injunction was not shown.[27]
II. Legal Background
With no controlling Eighth Circuit decision, the District Court looked at the "likelihood of success, whether plaintiffs will suffer irreparable harm if relief is denied, whether the balance of inequities tips in the plaintiffs['] favor, [and] whether injunctive relief is in the public interest."[28] According to the Eighth Circuit, the District Court applied the correct elements but did not grant the appropriate relief.[29]
A. Likelihood of Success of the Merits
The Eighth Circuit applied Tinker v. Des Moines Independent Community School District to the facts of the case and determined that the Wilsons were not likely to succeed on the merits.[30] Though Tinker recognizes that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,"[31] Tinker also held that "conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is . . . not immunized by the constitutional guarantee of freedom of speech."[32] Tinker does not specifically say “off-campus” speech is subject to its holding, but in D.J.M. v. Hannibal Public School District #60, the Eighth Circuit found that Tinker applied to “off-campus student speech where it is reasonably foreseeable that the speech will reach the school community and cause a substantial disruption to the educational setting.”[33]
Other circuits have come to the same conclusion. In Doninger v. Niehoff, a student used her home computer to post rude comments about an administrator online and the Second Circuit refused to enjoin her punishment.[34] In Kowalski v. Berkeley County Schools, a student created a website at home and allowed other students to post defamatory information about a classmate on it.[35] The Fourth Circuit concluded the school district did not violate any freedom of speech rights when it suspended the student because the student could reasonably expect the website to reach and impact the school environment.[36] Unlike the previous cases, the Third Circuit recently came to a different conclusion in 2011.[37] In J.S. v. Blue Mountain School District, a student created an online profile that mocked the school principal.[38] Nevertheless, the Third Circuit held that the school district violated the student’s free speech rights because the profile did not cause any disruption at the school and the content itself “was so outrageous that no one could have taken it seriously.”[39]
Because the District Court found that the Wilsons’ contributions to the blog caused substantial disruption and was targeted at Lee’s Summit North, the Eighth Circuit determined that the content of the blog did not have full First Amendment protection.[40] As such, the Eighth Circuit determined that the Wilsons were not likely to succeed on the merits under Tinker. [41]
B. Irreparable Harm
The Eighth Circuit also held that the District Court's findings were insufficient to show that the Wilsons would have suffered irreparable harm in the absence of an injunction.[42] In order to show irreparable harm, “a party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.”[43] The District Court found that forcing the Wilsons to attend Summit Ridge Academy would harm their education.[44] However, the Eighth Circuit disagreed, noting that Summit Ridge Academy is an accredited school in the same district as Lee's Summit North.[45] The preliminary injunction was granted too late in the semester for the Wilsons to enroll in any of Lee’s Summit North’s honors programs.[46] Therefore the Wilsons were not harmed by the fact the Summit Ridge Academy did not offer any honors courses.[47] As for the alleged harm to the Wilsons’ potential band scholarships and music careers, the Eighth Circuit held that those claims were purely speculative.[48] Speculative harm is not sufficient to support a preliminary injunction.[49] In fact, the “speculative nature of the threatened harm support[s] the denial of injunctive relief."[50]
C. Injunction Standards
The School District also argued that the District Court should have evaluated the Wilsons' Motion for a Preliminary Injunction under the permanent injunction standard. The Eighth Circuit disagreed, however, since a movant must show "actual success on the merits" to obtain a permanent injunction and that would have been impossible for the Wilsons to do at the pre-trial stage.[51] Thus, the Eighth Circuit found it appropriate for the District Court to apply the preliminary injunction test.[52]
III. Comment
The Eighth Circuit did a fine job determining that the District Court erred in issuing the preliminary injunction since the Wilsons failed to prove at least two of the four essential elements necessary. First, the Wilsons did not sufficiently prove a likelihood of success on the merits because the content of their website was targeted at the school and its students. Even though the Wilsons may have created the content outside of school property, it was clearly reasonable to expect that their actions would cause a substantial disruption at school. Second, the Wilsons failed to sufficiently prove irreparable harm since their music potential was purely speculative and the schools were similarly accredited. One of these reasons alone would be sufficient to support the Eighth Circuit’s holding; both of these reasons simply solidify the result.
- Joe Palumbo
[1] No. 12-1727 (8th Cir. Oct. 17, 2012). The West reporter citation is S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771 (8th Cir. 2012).
[2] Id. at 2.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id. at 3.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 4.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at 5.
[18] Id.
[19] Id.
[20] Id. at 6.
[21] Id. at 6.
[22] Id.
[23] Id.
[24] Id. at 7.
[25] Id. at 7.
[26] Id. at 8.
[27] Id.
[28] Id. at 5.
[29] Id. at 8.
[30] Id. at 8-9 (discussing 393 U.S. 503 (1969)).
[31] Tinker, 393 U.S. at 506.
[32] 393 U.S. at 513.
[33] D.J.M., 647 F.3d 754, 766 (8th Cir. 2011).
[34] Doninger, 527 F.3d 41, 46 (2d Cir. 2008).
[35] Kowalski, 652 F.3d 565, 567 (4th Cir. 2011), cert denied, 132 S. Ct. 1095 (2012).
[36] 652 F.3d at 573.
[37] J.S., 650 F.3d 915, 920 (3d Cir. 2011), cert denied, 132 S. Ct. 1097 (2012).
[38] Id.
[39] Id. at 930.
[40] S.J.W. ex rel. Wilson, 12-1727, at 9.
[41] Id.
[42] Id. at 12.
[43] Iowa Utils. Bd. v. Fed. Commc'ns Comm'n, 109 F.3d 418, 425 (8th Cir. 1996)).
[44] S.J.W. ex rel. Wilson, 12-1727, at 12.
[45] Id.
[46] Id.
[47] Id.
[48] Id. at 13.
[49] Id.
[50] Minn. Ass'n of Health Care Facilities, Inc. v. Minn. Dep't of Pub. Welfare, 602 F.2d 150, 154 (8th Cir. 1979).
[51] Cmty. of Christ Copyright Corp. v. Devon Park Restoration Branch of Jesus Christ's Church, 634 F.3d 1005, 1012 (8th Cir. 2011) (citation omitted).
[52] S.J.W. ex rel. Wilson, 12-1727, at 14.
