Monday, July 22, 2013

Tweets, the Basketball Player and the 4th Amendment

-->
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. 



This, according to the opinion, is how the case arose:



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. 

No comments: