This post examines an opinion the U.S. District Court for the District of Nevada issued in a case involving claims against a “school district and . . . employees of the" district. Rosario v. Clark County School Dist., 2013 WL 3679375 (2013). The
plaintiffs are Juliano Rosario and his father Frank Rosario. Rosario
v. Clark County School Dist., supra. They claim the defendants are liable under 42 U.S. Code § 1983 for violating the 1st Amendment
and/or 4th Amendment. Rosario
v. Clark County School Dist., supra.
The case arises from certain events that occurred when Juliano
was a student at Desert Oasis High School. Rosario
v. Clark County School Dist., supra. The school district employees Juliano and
his father sued,
and their position at Desert Oasis High
School are as follows: Emil Wozniak, principal; Ron Isaacs, athletic director
and assistant principal; Jim Dinkel, athletic director; Darrel Brown, boys
varsity basketball coach; Eric Gygatz, coach; and, Laurie Evans, coach
(collectively, `school administrators’).
Rosario v. Clark
County School Dist., supra.
Juliano tried out for the school basketball team in
the fall of 2012, his senior year. . . .He was originally cut from the team. .
. . Frank protested his son being cut with coach Brown and other school
administrators. . . . On or around December 4, 2012, Juliano was placed on the
basketball team subject to certain conditions. . . .
On or around February 7, 2013, the basketball team
played its final game of the season. . . . Following the game, in the evening
and after school hours, the Rosario family went to dinner at a restaurant. . .
. The restaurant is off-campus. . . . At the restaurant during dinner that
evening, Juliano used . . . Twitter to post several `tweets’ about school
officials. These tweets are the primary subject of this lawsuit. . . .
Rosario v. Clark County School
Dist., supra. (Later, the opinion
says he posted “about eight tweets”. Rosario
v. Clark County School Dist., supra.)
These are the redacted versions of the tweets that appear in the
opinion:
1. `Mr. Isaacs is a b*tch too’
3. `Now I can tweet whatever I want and I hope one
of y'all m*ther f*ck*rs snitch on me’
4.`F*ck coach browns b*tch *ss’
5. `Finally this b*tch *ss season is over’
6. `Aiight I'm done y'all can go snitch now like
before’
7. `Oh yeah and Mr. Dinkel's square *ss’
8. `AND Ms. Evans b*tch *ss boyfriend [this is
referring to defendant Gygatz] too He a p*ssy *ss n*gg* tryna talk sh*t while
walking away’
Rosario v. Clark County School
Dist., supra.
“In the days” after he sent the tweets, “school officials, including
Brown, Evans, Gygatz and Dinkel, filed a discipline complaint and victim impact
statements” against Juliano. Rosario v.
Clark County School Dist., supra. School
administrators charged him with cyberbullying. Rosario v. Clark County School Dist., supra. They also “either suspended Juliano or
expelled him subject to an appeal with the school board.” Rosario v. Clark County School Dist., supra. “On or about February
27, 2013,” the appeal panel modified Juliano's disciplinary punishment; the
panel reassigned him to a different high school in the school district. Rosario
v. Clark County School Dist., supra.
In this opinion, the federal district court judge who has the case is ruling on the defendants’ motion to dismiss the plaintiffs’ claims against them. The motion to dismiss would have been filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. As Wikipedia notes, the Rule 12(b)(6) motion
is how lawsuits with insufficient legal
theories underlying their cause of action are dismissed from court. For
example, assault requires intent, so if the plaintiff has failed
to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion.
This judge began his analysis of the motion by noting that
to “`“state a claim under § 1983, a plaintiff must allege two essential
elements: (1) that a right secured by the Constitution or laws of the United
States was violated, and (2) that the alleged violation was committed by a
person acting under the color of State law.’” Rosario v. Clark County School Dist., supra (quoting Long v.
Cnty. of Los Angeles, 442 F.3d 1178 (U.S. Court of Appeals for the 9th Circuit 2006)).
He also noted that in ruling on a Rule 12(b)(6) motion to
dismiss, the apply the two-step approach the Supreme Court established in
Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Rosario
v. Clark County School Dist., supra.
First, the court must accept as true
all well-pled factual allegations in the complaint; however, legal conclusions
are not entitled to the assumption of truth. . . . Mere recitals of
the elements of a cause of action, supported only by conclusory statements, do
not suffice. . . . Second, the court must consider whether the
factual allegations in the complaint allege a plausible claim for relief. .
. . A claim is facially plausible when the complaint alleges facts that
allows the court to draw a reasonable inference that the defendant is liable
for the alleged misconduct. . . .
Rosario v. Clark
County School Dist., supra.
The judge began with the plaintiffs’ 1st Amendment claim, noting the defendants argued
that (1) Juliano's speech was obscene and
therefore not entitled to 1st Amendment protection and (2) that schools may
regulate off-campus student speech that causes a substantial disruption
on-campus. Plaintiffs counter that defendants violated Juliano's 1st Amendment
rights when the defendants disciplined and punished him for the tweets he made
at the restaurant following the final basketball game of the season. Plaintiffs
argue that Juliano's speech was not obscene and that the school exceeded its
authority to regulate off-campus speech in this case.
Rosario v. Clark
County School Dist., supra.
As to the first issue, the judge explained that
`obscene material is unprotected by the
1st Amendment.’ Miller v. California, 413 U.S. 15 1973).
Speech is obscene if it meets each of the following elements: (1) `whether the
average person, applying contemporary community standards would find that the
work, taken as a whole, appeals to the prurient interest’; (2) `whether the
work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law`; and, (3) `whether the work,
taken as a whole, lacks serious literary, artistic, political, or scientific
value.’ Miller v. California, supra.
Rosario v. Clark
County School Dist., supra.
The judgefound that Juliano’s second tweet could not
survive the motion to dismiss because it
is obscene as a matter of
law. That statement qualifies as obscene . . . because (1) applying
contemporary community standards it appeals to the prurient interest, (2) the
tweet depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state statute and (3) the tweet, taken as a whole, lacks serious
literary, artistic, political, or scientific value. Juliano cannot recover for
tweet number two referenced above and any protections afforded by the 1st
Amendment do not extend to that statement.
Rosario v. Clark
County School Dist., supra.
The defendants argued that
many of the tweets should not be
afforded 1st Amendment protections because the tweets are racist, violent,
offensive, and hateful. That may well be true. However, defendants' only
arguments with supporting case law concern speech that falls outside the
protections of the 1st Amendment because the speech is obscene. Juliano's
tweets may be offensive, but only tweet number two above is obscene as defined
by the Supreme Court in Miller. . . .
Rosario v. Clark
County School Dist., supra.
The judge then noted that the
school administrators disciplined and
punished Juliano under a cyberbullying statute for all of the above referenced
tweets, not for any tweet in particular. It is well-established that schools
may discipline students for off-campus speech in certain situations.
Rosario v. Clark
County School Dist., supra. He also
noted the “test that has emerged from” the federal Courts of Appeals for
analyzing “off-campus student speech, including online social networking
speech,” is that school administrators “have the authority to discipline
students for off-campus speech that will foreseeably reach the campus and cause
a substantial disruption.” Rosario v.
Clark County School Dist., supra.
The judge therefore found that the “plaintiffs have stated a
cause of action under § 1983 for 1st Amendment violations as to Juliano's
tweets sufficient to survive the motion to dismiss stage, with the exception of”
the second tweet. Rosario v. Clark County School Dist., supra.
He then took up the defendants’ challenge to the plaintiffs’
4th Amendment claim, which was that “the school and its administrators
violated Juliano's 4th Amendment rights by searching his Twitter account.” Rosario
v. Clark County School Dist., supra.
He began his analysis of the 4th Amendment issues by noting
that it guarantees that people
shall be `secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.’ . . .
A person has a constitutionally
protected reasonable expectation of privacy when he or she has both a
subjective expectation of privacy and that expectation is one society recognizes
as reasonable. See Katz v. U.S., 389 U.S. 347 (1967). . .
.
Rosario v. Clark
County School Dist., supra. (For
more on Katz, see this prior post.)
The plaintiffs claimed “Juliano had a reasonable expectation
of privacy in his tweets because his tweets were limited to his followers -- i.e., a
limited audience viewed or read Juliano's tweets.” Rosario v. Clark County School Dist., supra. The judge first noted that
Twitter provides two privacy settings
to its user: public and private. If a user maintains a public setting, then any
of his or her followers may read the user's tweets. Additionally, anyone
searching the internet may view and read a public user's tweets whether or not
that person is a follower of the tweeter.
When a user with a public privacy
setting tweets a message, he or she intends the message to be heard by the
public at large. It just happens that typically the only people that read the
tweet are the users' followers. A tweet from a user with public privacy
settings is a twenty-first century equivalent of an attempt to publish an
opinion piece or commentary in the New York Times or the Las Vegas Sun. When a
person with a public privacy setting tweets, he or she intends anyone that
wants to read the tweet may do so, so there can be no reasonable expectation of
privacy.
Rosario v. Clark
County School Dist., supra. He then
noted that when a Twitter user
maintains a private setting, only his
or her followers may read the tweet. If a person who is not a follower of a
private user's profile searches finds that private user's profile, that person
who searched and found the profile may not read any of the private user's
tweets (though there could be an exception for `re-tweeting’ that is irrelevant
under the facts of this case).
A Twitter user with his or her privacy
setting set to private has a more colorable argument about the reasonable
expectation of privacy in his or her tweets than a user with a public setting.
However, even with a private account, the user is still `disseminat[ing] his
postings and information to the public, [and] they are not protected by the 4th
Amendment.’ U.S. v. Meregildo, 883 F.Supp. 2d 523 (U.S. District Court for the Southern District of New York 2012).
Rosario v. Clark
County School Dist., supra.
The plaintiffs claimed Juliano had a private account,
which the defendants “dispute[d].” Rosario
v. Clark County School Dist., supra.
The judge found that whether he had a such an account “is irrelevant". Rosario
v. Clark County School Dist., supra. He found there was no 4th Amendment
violation because the school
administrators accessed Juliano's tweets via one of his follower's accounts.
Plaintiffs argue that defendants violated the 4th Amendment because they
discovered Juliano's tweets when one of Juliano's followers gave the tweets to
administrators. However, it is well-established that when a person shares
information with a third party, that person takes the risk that third person will
share it with the government. U.S. v. Choate, 576 F.2d 165
(9th Circuit 1978) (`the 4th Amendment does not prohibit the obtaining of
information revealed to a third party and conveyed by him to government
authorities, even if the information is revealed on the assumption that it will
be used only for a limited purpose and the confidence placed in the third party
will not be betrayed’); U.S. v. White, 401 U.S. 745 (1971) (`The
depositor takes the risk, in revealing his affairs to another, that the information
will be conveyed by that person to the Government’).
Rosario v. Clark
County School Dist., supra.
The judge also noted that “[t]his
logic applies with equal force in the social media context. When a person
tweets on Twitter to his or her friends, that person takes the risk that the
friend will turn the information over to the government.” Rosario v. Clark County School Dist., supra.
He T therefore dismissed the plaintiffs’
42 U.S. Code § 1983 claim for violating the 4th Amendment. Rosario
v. Clark County School Dist., supra.
The suit, though, goes forward on the 1st Amendment claim (except as to the second tweet) and
on other claims, including a defamation claim against “coach Brown”. Rosario v. Clark County School Dist., supra.
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