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NEW YORK--An eighth-grader who sent his friends an instant message showing a drawing of a pistol firing a bullet at the head of a person identified as his English teacher is not protected by the First Amendment, a federal appeals court has ruled.
Beneath the instant message drawing Aaron Wisniewski sent to 15 friends in 2001 appeared the words, "Kill Mr. VanderMolen," Aaron's teacher at the time, according the 2nd U.S. Circuit Court of Appeals in New York in Martin Wisniewski and Annette Wisniewski vs. Board of Education of the Weedsport Central School District and Richard Mabbett, Superintendent of Schools.
Dots above the head represented splattered blood, according to the Thursday ruling.
The middle school student was suspended for five days pending a superintendent's hearing. At the same time, a police investigator concluded the icon was meant as a joke and closed a criminal case.
Following the superintendent's hearing, however, the hearing officer ruled the student should be suspended for one semester. His parents, who have since moved from Weedsport, N.Y., because of school and community hostility, according to the opinion, filed suit and claimed the communication was protected speech under the First Amendment, among other claims.
However, a three-judge panel of the appeals court unanimously upheld a lower court's summary judgment dismissing the case.
"Even if Aaron's transmission of an icon depicting and calling for the killing of his teacher could be viewed as an expression of opinion...we conclude that it crosses the boundary of protected speech and constitutes student conduct that poses a reasonably foreseeable risk that the icon would come to the attention of school authorities" and materially disrupt the school's work and discipline, the appeals court ruled.