By Mark Chesnut
When a 13-year-old Missouri boy working on a home art project arranged soda cans into what resembled a gun, his mother was likely proud of his creativity. But when the boy posted a picture of the project on social media, things went downhill quickly.
To create the art, the boy glued Dr. Pepper cans end to end. He glued one on top to resemble a scope, and two on the bottom—one where the handguard would be, the other where a magazine would hang down. The Snapchat post was made outside of school hours, off school grounds and did not mention any school or students.
Some parents who saw the post, however, couldn’t leave well enough alone. They reported the post to the officials with the Mountain View-Birch Tree R-III School District, which immediately suspended the young artist for three days and marked the boy’s record with a “cyberbullying” offense, even though the superintendent said school officials had found “no credible evidence of any danger.”
Shortly afterward, the boy’s mother filed a lawsuit, led by Goldwater Institute attorneys, against the school district, claiming the school had violated the boy’s (called “W.G.” in the lawsuit) First Amendment and Fourteenth Amendment rights.
“W.G. was not holding the can art in his arms nor was he displaying it in any manner that suggested the can art could potentially be used to endanger any person, and the photo contained no threatening language or anything that would suggest harm to anyone or anything,” the lawsuit stated. “Although the School District quickly became aware that the Plaintiff had not threatened anyone, the School District decided that they must punish W.G.
“W.G. brings this lawsuit to ensure that schools may not punish a student for sharing non-threatening creative expression with other students outside of school hours, even if others mistakenly believed that the student’s creative expression could be construed as a threat.”
As the lawsuit explained, the U.S. Supreme Court has set a standard on First Amendment speech that was not followed in the case of the soda can artwork and subsequent social media posting.
“The U.S. Supreme Court has recently made clear that the First Amendment bans the government from punishing speakers based on an objective standard that considers only how observers might construe something a speaker said,” the lawsuit stated. “Instead, the Supreme Court concluded that at a bare minimum the First Amendment imposes a ‘recklessness’ requirement under which the government must prove that a speaker made ‘a deliberate decision to endanger another;’ in other words, the applicable standard requires the government to prove that ‘a speaker is aware that others could regard his statements as threatening violence and delivers them anyway.’”
Ultimately, the lawsuit asked the court to find the suspension unconstitutional, bar the school from taking further action against the boy over the incident, award the plaintiff attorney fees and award him “reasonable fees and expenses.”
As for the school district, officials there took the easy way out when requested to talk about the matter.
“The School District is aware of the lawsuit that was recently filed,” Superintendent Lana Tharp said in a released statement. “Unfortunately, because the lawsuit involves a student, we are significantly limited in what we are legally permitted to share publicly. For now, we can only say that we have legal counsel, who will present our side of the story and defend against these allegations.”
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