part V excerpt continued
Tad Sorowski had given the case’s name what Sam assumed was the proper Polish pronunciation, something like Vish-nee-ef-ski. Who knew? The kid was American. Sorowski himself used an American pronunciation for his own name, the middle syllable given an accented long o sound, no hint of an ef.
Sam chose something in between and consequently mangled the name. “Wisniewski is distinguishable, Judge.”
Distinguishing precedents was the favored gambit of legal argument. If a court ruled in favor of a school district in a prior case with apparently similar facts, the lawyer must show how the facts, despite appearances, are not similar in relevant respects to the pending case. Every law student learns the technique, and every appellate court applies it. And any number of legal scholars tries to show the project to be result-oriented gamesmanship.
“It’s distinguishable for at least three reasons,” Sam went on. “First, the case was about a violent message—a visual depiction of a gun and blood dripping from the English teacher’s head. Or maybe the blood was even spurting. Morbidly violent. I think that’s what really drives the case. So consider this just for a moment, Judge.
“Suppose a middle school student had sent an Instant Message to her buddies saying that she had a crush on her English teacher. A drawing of Mr. VanderMolen perhaps, surrounded by little hearts. I think we can agree it would be equally foreseeable that a message of that sort might come to the attention of classmates and school authorities and would cause just as much, or more, disruption to discipline at the school. Yet the law certainly would not or should not permit school authorities to suspend that hypothetical student from school for that hypothetical conduct. So Wisniewski really should be understood as limited to violent messages. And whatever we might say about Mr. Stillwell’s message, he was not advocating violence.”
He turned for a moment to look at his client, in the seat next to him, to establish just how nonviolent he was. Ricky complied.
“The second point is this,” Jacobson continued. “There was a closer connection to the school in the Wisniewski case than there is here. The student had drawn and labeled a picture of his English teacher. His icon was directly related to the school. In contrast, Mr. Stillwell’s message was written to his friend, his peer, who happened to be another student at the school. But there was nothing in his message that was inherently about the school. It was private.
“And that brings us to the third point, Judge. It was private. Unlike the other cases, this message never did get distributed to others; it never made it into the school. That’s what the testimony would show. That is critical.”
Sam stopped talking and looked at Judge Wallis, waiting to see if she had any questions for him. There were none. Tad Sorowski stood up to reply. Judge Wallis waved him back down. “No, I have enough on this issue, Mr. Sorowski. Thank you both for your cogent statements.”
The judge was visibly uncomfortable. She stood up with effort. “It’s a good time for lunch. Let’s convene again at 1:30.” Everyone stood on cue as she rose and maneuvered through the door behind the judge’s bench.