A federal appellate court has upheld a student’s constitutional challenge to a school’s decision to discipline him for an antisemitic social media post. Relying on the U.S. Supreme Court’s decision in Mahanoy v. Area School District v. B.L., the court reasoned that the facts surrounding the post did not “support a reasonable forecast of substantial disruption” because the post was made on a private message thread outside of school hours, off school property, and did not mention the school or target any specific member of the school community.
While acknowledging the speech as offensive, ABA Litigation Section leaders agree with the court’s conclusion, noting that the facts did not sufficiently depart from those in Mahanoy to conclude that it was not controlling precedent.
“Bout to Exterminate the Jews”
In C.G. v. Siegfried, while off campus at a thrift store, a student posted a photo of his friends wearing wigs and hats, including “one hat that resembled a foreign military hat from the World War II period.” He captioned the photo, “Me and the boys bout to exterminate the Jews,” and uploaded it onto his private Snapchat story. Hours later, the student removed the photo and posted an apology, claiming that it was meant as a joke. However, a classmate had already shared the original post with her father. The parent notified the police, who were dispatched to the student’s home but concluded that there was no real threat. A parent also emailed the school, raising concern for the Jewish student community.
The following Monday, the school issued a multiday suspension of the student, and later expelled him for one year for violating school policies prohibiting, inter alia, verbal abuse; conduct detrimental to the welfare and safety of other students; intimidation, harassment, or hazing; and threats of physical harm.
The student filed suit under 42 U.S.C. Section 1983 for violations of his First Amendment right to free speech and Fourteenth Amendment right to due process. The U.S. District Court for the District of Colorado dismissed the student’s complaint, holding that it was foreseeable that the student’s post could cause substantial disruption to the school. The court concluded further that the school had the authority to issue discipline and had provided the plaintiff with adequate legal process. The student appealed.
Substantial Disruption Means More Than “Impact”
On appeal to the U.S. Court of Appeals for the Tenth Circuit, the student argued that the First Amendment limits school authority to regulate off-campus student speech, particularly speech “unconnected with a school activity and not directed at the school or its specific members.” The school countered that the student was lawfully disciplined for what “amounts to off-campus hate speech.” Although originating off campus, the school argued that the speech “still spread to the school community, disrupted the school’s learning environment, and interfered with the rights of other students to be free from harassment and receive an education.”
Recognizing that schools may only restrict student speech if it “would substantially interfere with the work of the school or impinge upon the rights of other students,” the Tenth Circuit held that Mahanoy’s framework for assessing school regulation of off-campus speech controls, labeling the two cases “materially similar.” Rejecting the school’s arguments that the plaintiff used “hate speech targeting the Jewish community” and that the post was “not just a crude attempt at a joke about the Holocaust,” the court explained that, under Mahanoy—a recent case involving a cheerleader’s off-campus social media posts criticizing her coach and team—the present facts “do not support a reasonable forecast of substantial disruption” because the speech occurred outside of school hours, off campus, and was posted to a private group of friends without targeting any specific school officials or students. The court also noted that an email from a concerned parent was not sufficient to show that a substantial disruption had occurred. Evidence that the speech had an impact on the school community was not sufficient.
Offensive Speech Without More Is Protected
Litigation Section leaders are not surprised by the court’s reliance on such recent Supreme Court precedent governing school regulation of social media posts. “The Tenth Circuit essentially followed the reasoning of Mahanoy,” opines George Freeman, New York, NY, cochair of the Section’s Civil Rights Litigation Committee. “There was almost no linkage at all in this case to the school, so it is hard for them to exert authority where the speech didn’t occur at a school function, activity, or on campus,” he explains.
“I believe the Tenth Circuit decided the case correctly,” concurs Rebecca Sha, New Orleans, LA, cochair of the Section’s Diversity & Inclusion Committee. “The key question is whether or not the conduct was substantially disruptive of school activities or posed a harm to others,” Sha elaborates. However, despite the Tenth Circuit’s reasoning in this case, Sha notes that under different circumstances “a threat to harm someone or commit violence absolutely can be an exception to First Amendment protections, even in the social media context.”
“We don’t necessarily penalize hate speech; it must incite imminent lawless action, which this speech did not,” Freeman clarifies. “Whether speech like this should be afforded protection is a different question.”
Hashtags: #FirstAmendment #freespeech #hatespeech
- Debra Cassens Weiss, “Supreme Court agrees to hear First Amendment case of suspended cheerleader,” ABA J. (Jan. 11, 2021).
- Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
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