A federal appellate court recently delivered a remarkable win for the online, off-campus First Amendment speech rights of public high school students, even when posting social media content that most people would reasonably—even easily—deem racist. Importantly, the US Court of Appeals for the Second Circuit’s ruling in Leroy v. Livingston Manor Central School District offers broader lessons about free-expression principles, interest-balancing efforts, and cancel-culture impulses.
Livingston Manor is a triumph for minors’ expressive rights, especially given how much time they spend online and their extensive use of social media applications. The Second Circuit’s opinion reins in a school’s attempt to extend its authority over minors beyond campus and to police offensive speech that never references—explicitly or implicitly—the school, its teachers, staff, students, or policies.
This post—one of two on Livingston Manor—provides facts that problematize a case pitting a minor’s freedom to exercise online speech rights in a non-student, off-campus capacity against a school’s pedagogical authority over content that disrupts on-campus educational activities and causes other students offense and discomfort. The second post, slated for publication soon, will explore the Second Circuit’s logic and suggest larger lessons that stretch beyond Livingston Manor’s facts.
Facts. While away from campus and during non-school hours, high school senior Case Leroy posted on Snapchat “a picture of his friend kneeling on his neck with the caption ‘Cops got another.’” Leroy is lying next to a car; his kneeling friend, the court notes, “is giving a ‘thumbs up’ and smiling.”
The picture was uploaded to Snapchat by Leroy (as well as the other students with him) on April 19, 2021. That same day:
a jury had . . . begun to deliberate in the highly publicized trial of Derek Chauvin, a Minnesota police officer, for the murder of George Floyd. The picture is undeniably reminiscent of footage of Chauvin next to a police car kneeling on George Floyd’s neck, killing him.
Leroy, however, said his post “was a joke.” He maintained “he was not aware of the resemblance until” shortly later when his “phone started ‘blowing up’ with messages.” He then saw that the friend who kneeled on his neck had separately posted the photo, accompanied by “the Black Lives Matter logo and the caption ‘Another one down.’” Leroy quickly “understood the resemblance to the George Floyd case . . . [and] immediately took down his post.” His post was up for about seven minutes, but as the Second Circuit wrote, it “took on a life of its own.”
That’s because, while the post was visible on Snapchat, another student at Leroy’s school reportedly “took a screenshot of [it] and re-posted it on Facebook and other platforms.” This triggered several events, including a repost “urging people to reach out to the school and providing contact information.” Indeed, “many people” complained to the school, with administrators receiving a “barrage of emails” the night the photos were posted. As encapsulated by the Second Circuit:
school officials received twenty-three emails about the pictures, some identifying the students in the pictures, some labeling the behavior racist, some stating that it would make students feel unsafe, and many urging the school to take disciplinary action and hold the students accountable for their conduct.
Additionally, “several students emailed teachers and the administration to report that Leroy’s speech made them feel unsafe or uncomfortable.” Leroy, in turn, “received death threats.”
The response at school the next day included: (1) “in-class discussions” between teachers, staff, and students; (2) a “school-wide assembly” that lasted from 15 to 20 minutes; and (3) a “demonstration by several students” that was “supervised” by two school officials and during “which participating students knelt for nine minutes to symbolize the time Derek Chauvin held his knee on George Floyd’s neck.” After the demonstration, the school’s guidance counselor “supervised a follow-up discussion about the photos, racism, insensitivity, and George Floyd.” Administrators “also informed students that school counselors would be available for students who needed counseling in relation to the photos.”
The school hired legal counsel to investigate (and make recommendations in) the matter and then held a hearing at which Leroy testified. The hearing officer concluded Leroy violated two parts of the school district’s code of conduct relating to acts that disrupt or interfere with the educational process or “normal operation of the school community.”
Leroy was suspended for about one month from New York’s Livingston Manor High School and banned from extracurricular activities. He sued in state court, alleging the punishment violated the First Amendment. After the school district removed the case to federal court, a district judge ruled against Leroy, finding that his post caused “an actual disruption” justifying punishment. The next post in this two-part series will examine the Second Circuit’s reasons for reversing that decision and explore some larger lessons.
The post Public School Students’ Online, Off-Campus Speech Rights: Lessons from a First Amendment Victory, Part 1 appeared first on American Enterprise Institute – AEI.
