The US Court of Appeals for the Second Circuit in October delivered a significant triumph for the online speech rights of public high school students over educators’ authority to discipline them for uploading—while off campus, on their own time—offensive messages not targeting a school, its employees, or students. Leroy v. Livingston Manor Central School District involves a Snapchat photo and caption many perceived as “an insensitive comment on the murder of George Floyd.” Indeed, the Second Circuit deemed the image “undeniably reminiscent of footage of [police officer Derek] Chauvin next to a police car kneeling on George Floyd’s neck, killing him.”
Readers of this post—the second of two on Livingston Manor—might review the first one to understand key facts leading to senior Case Leroy’s suspension. His Snapchat photo depicts Leroy lying on the ground with another student kneeling on his neck and the words “Cops got another.” This post explores why the Second Circuit shielded Leroy’s off-campus content from school punishment despite its racist connotations.
Presumptively Protected. The Second Circuit initially concluded that Leroy’s message doesn’t fit within an unprotected category of speech. Although offensive, his post isn’t a true threat of violence. The appellate court reasoned that it “contain[s] no threat at all, let alone a ‘serious expression’ conveying that a speaker means to ‘commit an act of unlawful violence.’” In short, if Leroy were a non-student adult, his speech would be fully protected.
It’s worth reiterating here something I’ve recently emphasized: The First Amendment generally protects hate speech. The fact that some people understandably interpreted Leroy’s post as hateful toward Floyd and Black people thus doesn’t remove its constitutional protection.
Schools are Different. Although Leroy’s post is presumptively protected, the Supreme Court long ago concluded that when public school students are on campus, their free-speech rights are curbed by “the special characteristics of the school environment.” The Court held in Tinker v. Des Moines Independent Community School District that schools can censor and discipline students for on-campus speech when administrators reasonably forecast it will cause a “substantial disruption of or material interference with school activities” or “impinge upon the rights of other students.”
Leroy, however, wasn’t on campus. The Supreme Court in 2021 ruled that the “special First Amendment leeway” schools have to regulate on-campus speech “often” will be “diminished” for “off-campus speech.” Yet, the Court in Mahanoy Area School District v. B.L. recognized that schools’ “regulatory interests remain significant in some off-campus circumstances.” The Second Circuit determined Leroy’s post didn’t constitute one of those off-campus circumstances justifying on-campus discipline.
Recognizing Minors’ Communication Realities. The Second Circuit rejected the argument that “a social media post made off-campus is equivalent to speech on campus” simply because it reaches many people and can disrupt on-campus activities. That determination alone is a victory for minors’ speech rights, given their prevalent social media usage. As the court observed, “social media is a primary method of communication for students today.”
Emotional Tranquility vs. Physical Safety. Leroy’s school asserted an “interest in protecting members of the student body from offensive speech.” The Second Circuit, however, wisely distinguished safeguarding students’ physical safety from shielding them from offense:
The ability to engage in civil discourse with those with whom we disagree is an essential feature of a liberal education. Teaching students that they can and should be sheltered from speech that offends them is not. At bottom, schools may sometimes restrict or penalize off-campus speech because it is threatening, but they cannot do so because it is offensive.
The court added that “if schools can regulate off-campus expression because it upsets other students, they are effectively authorized to prohibit students from expressing unpopular views—in or out of school.” The court thus thwarted the chilling effect on a robust, off-campus marketplace of ideas for minors’ opinions that a ruling granting schools 24/7 authority over their offensive posts might cause.
Disruption: Degrees and Causes. The Supreme Court’s Tinker ruling lets schools discipline students for substantially and materially disruptive speech. The Second Circuit determined the disruption from Leroy’s post—one “lack[ing] any meaningful connection to the school” (it wasn’t about the school and didn’t bully, let alone name, students)—wasn’t substantial or material. There were “discussions about the posts in and out of class,” plus “a fifteen-to-twenty-minute school-wide assembly and a nine-minute demonstration by several students.”
Furthermore, the disruption was as much “driven by the independent decisionmaking of others” (students, parents, and administrators)—how they reacted to Leroy’s post—as it was by Leroy’s conduct. To let their reactions justify Leroy’s punishment would constitute a heckler’s veto—something that violates the First Amendment. As the court reasoned, “tying a student speaker’s constitutional right to free expression solely to the reaction that speech garners from upset or angry listeners cannot be squared with” free-speech principles.
The post Public School Students’ Online, Off-Campus Speech Rights: Lessons from a First Amendment Victory, Part 2 appeared first on American Enterprise Institute – AEI.
