Justin J. Boucher v. School Board of the School District of Greenfield

134 F.3d 821, 26 Media L. Rep. (BNA) 1394, 1998 U.S. App. LEXIS 453, 1998 WL 7604
Court of Appeals for the Seventh Circuit·Decided January 9, 1998·No. 97-3433·Published·Cited by 71 cases

Opinion

CUDAHY, Circuit Judge.

The Last is not your father’s newspaper. At Greenfield High School near Milwaukee (Greenfield), it is also not your Official School Newspaper; it happens to be your underground newspaper. The Last features anonymous articles deployed in a potpourri of typefaces. The inaugural issue, dated April 1997, provocatively explained that The Last was intended to “ruffle a few feathers and jump-start some to action.” In an introduction, The Last explained its commitment to “Free Speech” this way: “No censorship is impossible to achieve and wouldn’t make for a very good paper, so we’ll settle for a minimum of censorship. We will accept anything so long as it has some point or at least some interesting quality.” The June issue of The Last was distributed on June 4, 1997, in bathrooms, in lockers and in the cafeteria at Greenfield. The June Last included an article entitled “So You Want To Be A Hacker,” that purported to “tell everyone how to hack the school[’]s gay ass computers.” Written by self-professed “hackers with anarchistic views,” it described how to “restart the computer. ... to exit whatever you were doing very quickly” and how to “enter the computer[’]s setup utility.” Regarding the latter, the article advised, “[T]he school isn’t all that smart so the password should be real easy to guess or crack.” The article also explained how to “see a list of every file on the computer.... see all the students!’] login names” and “see all of the teachers!’] log in names.” The article offered a further tip about passwords:

Some commonly used passwords at very stupid schools are: first names, last names, ghs, ghsteacher, williefred, hacker, teacher, and password. Remember that these won’t always work and they probably won’t but they’re a good starting point when you[’]r[e] guessing.

The article described the procedure for accessing the “.com or .exe files” which “include all of the programs.” It pointed out how to view a list of the users currently active on the computer network and advised, “If a teacher is on or YoungM or sysop or ghs or admin are on then I would suggest not doing any hacking because you might get caught.” The article promised readers that “when you have mastered all this shit I’ll be happy to teach you more.” The article concluded with some final warnings and disclaimers. One stated that “if you are a fucking idiot and get caught Sacco and Vanzetti and any publishers or distributors of ‘The Last’ will not be held responsible.” Then, “as a warning of what can happen if you get caught,” the article related how “three hackers, we can’t use their real names so we’ll just call them Adam D., Brian R., and Justin B, were all accused of doing evil shit on the computers.” The moral? “[B]e careful and remember that when you’re in *823 the computer lab they can trace you and everyone is watching you.” One part of the article was devoted to “Hacker Ethics,” with the general theme that hackers “may do things which are deemed illegal but we never do things which we believe are immoral.”

Although the article “So You Want To Be a Hacker,” appeared under the byline “Sacco and Vanzetti,” Greenfield quickly determined that it was actually the work of a single author, the plaintiff Justin J. Boucher, who was completing his junior year at Greenfield. 1 On June 6,1997, 15 school days short of the end of the academic year, the author was suspended. The Greenfield School District administration recommended that Boucher be expelled because the article had endangered school property. The defendant, the Greenfield School District School Board (the Board), conducted a student expulsion hearing on July 10, 1997. At the conclusion of the hearing, the Board (with one member absent) voted unanimously to expel Justin Boucher immediately, until August 27, 1998.

Boucher promptly filed a two-count complaint in Wisconsin Circuit Court. Count I accused the Board of violating Boucher’s “right under the First Amendment by imper-missibly infringing upon the plaintiffs right to speak freely on the subject of computer usé and hacking.” Count II asserted that the expulsion violated Article I, § 3 of the Wisconsin Constitution. 2 The complaint requested that the expulsion order of July 10, 1997, be set aside, that the expulsion be declared to violate the Federal and State Constitutions, that costs and attorney’s fees be awarded and that the court provide such other and further relief it deemed appropriate. The complaint was accompanied by a motion for a preliminary injunction against enforcement of the expulsion order.

The Board filed a notice of removal in federal district court on August 28,1997, and, after removal, Boucher renewed his motion for a preliminary injunction. On September 2, the district court conducted a telephonic status conference during which the parties agreed that the preliminary injunction motion would be decided on the basis of written submissions and stipulated facts, without an evidentiary hearing. On September 19, the day after oral argument, the district court issued a decision and order granting the motion for a preliminary injunction. It instructed the Board to “immediately cease enforcement” of the expulsion order. The Board filed a notice of appeal on September 22, 1997, and, on September 26, a motion with the district court to suspend or modify the preliminary injunction. The district court conducted a hearing on that motion on October 1 and denied it the same day. On November 11, 1997, we denied the Board’s request for a stay pending appeal. We now vacate the preliminary injunction.

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Justin J. Boucher v. School Board of the School District of Greenfield, 134 F.3d 821, 26 Media L. Rep. (BNA) 1394, 1998 U.S. App. LEXIS 453, 1998 WL 7604 (7th Cir. 1998).

134 F.3d 821 (Justin J. Boucher v. School Board of the School District of Greenfield) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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