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Boucher v. School Board of the School District of Greenfield

January 9, 1998




Appeal from the United States District Court for the Eastern District of Wisconsin.

No. 97 C 915 John W. Reynolds, Judge.

Before Cudahy, Flaum, and Manion, Circuit Judges.

Cudahy, Circuit Judge.

Argued December 10, 1997

Decided January 9, 1998

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 publisher 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 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. *fn1 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 impermissibly infringing upon the plaintiff's right to speak freely on the subject of computer use and hacking." Count II asserted that the expulsion violated Article I, sec. 3 of the Wisconsin Constitution. *fn2 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.

"'[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'" Mazurek v. Armstrong, 117 S. Ct. 1865, 1867 (1997) (per curiam) (quoting 11A Charles Alan Wright et al., Federal Practice and Procedure sec. 2948 (2d ed. 1995) (emphasis added and footnotes omitted)). An injunction is an equitable remedy warranted only when the plaintiff has no adequate remedy at law, such as monetary damages. See Morales v. Trans World Airlines, 504 U.S. 374, 381 (1992); Franklin v. Gwinnett Co. Pub. Sch., 503 U.S. 60, 75-76 (1992). As an initial matter, the plaintiff must demonstrate (1) a "'better than negligible' chance of succeeding on the merits," Meridian Mut. Ins. Co. v. Meridian Ins. Group, Inc., 128 F.3d 1111, 1114-15 (7th Cir. 1997) (quoting International Kennel Club, Inc. v. Mighty Star, Inc., 846 F.2d 1079 (7th Cir. 1988)), and (2) the inadequacy of legal remedies, id. at 1114. If the plaintiff makes a satisfactory showing of both of these requisites, the district court proceeds to balance the harm the injunction would impose on the defendant against the injury the plaintiff would suffer without the injunction. See Vencor, Inc. v. Webb, 33 F.3d 840, 845 (7th Cir. 1994). In this balancing, each party's potential injury must be adjusted for the probability that that party will prevail on the merits. For example, the less likely it is the plaintiff will prevail on the merits, the greater the harm the plaintiff would have to suffer to justify an injunction. The court must also take into account the public interest in granting or denying the motion. See id.

We derive our jurisdiction over this interlocutory appeal from 28 U.S.C. sec. 1292(a)(1). Our review of the grant of a preliminary injunction is confined to "whether the issuance of the injunction, in light of the applicable standard, constituted an abuse of discretion." Doran v. Salem Inn, 422 U.S. 922, 932 (1975); see also University of Texas v. Camenisch, 451 U.S. 390, 393 (1981) (indicating applicable standard supplied by reviewing-circuit precedent). A district court abuses its discretion when it grants an injunction because of "an erroneous view of the law or . . . a clearly erroneous assessment of the evidence." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990); see also Vencor, 33 F.3d at 844.

The district court made its decision on the basis of stipulated facts, the parties' briefs and oral argument. The stipulations included the transcript of the expulsion hearing and the ...

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