Free Speech

Barred from Participating in Public High School Graduation for Using "Nigger" in a Tweet?

That's the claim in a federal lawsuit, which a federal judge just allowed to go forward.

|The Volokh Conspiracy |

From Castro v. City of Clovis, decided Friday by Judge Dale A. Drozd (E.D. Cal.):

… On June 13, 2019, plaintiff filed this action, alleging violations of his rights to free speech and due process. According to the complaint, plaintiff is a former Clovis High School student who recently turned 18 and finished high school. Plaintiff was scheduled to attend his graduation ceremony on May 30, 2019, when his school "revok[ed] his VIP sitting privilege in the graduation ceremony, remov[ed] him off the school premises, and enjoin[ed] him from participating in his long-awaited graduation ceremony that was by then only 3 hours away," allegedly as punishment for a tweet that he had posted on Twitter. In that tweet, sent to a Nigerian friend on an unidentified date before his graduation, plaintiff used the words "nigga" and "nigger," apparently with his friend's consent and as a form of "intercultural communication." Another Twitter user saw the tweet and reported it to the school, which, in addition to barring plaintiff from attending his graduation, "order[ed] him to delete the alleged offensive message from his [T]witter account[.]" …

Castro sued on various theories, but the one that survived the motion to dismiss (and the one I'm interested in here) was the claim that the school's actions violated his free speech rights; and, surprisingly, the defendants' entire argument as to free speech was,

In his first cause of action, Plaintiff alleges that Defendants violated Plaintiff's right to Freedom of Speech under the First Amendment of the United States Constitution because Defendants disciplined plaintiff for using language that is almost universally considered to be profane in nature. Although the First Amendment of the United States Constitution guarantees broad speech liberties to persons residing within the United States, it is not without limit. Of note, certain speech activities of pupils at public schools may be limited. The California Education Code § 48907(a) states that "Pupils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous." (Emphasis added.)

In this case, Plaintiff used the word "nigga" and "nigger" which was seen by someone who took offense to the use of Plaintiff s choice of words. So much so, that this (unidentified) person reported Plaintiff s speech activities to Defendants. As noted in California Education Code § 48907(a), pupils of California schools do not have the right to expression which is obscene, libelous, or slanderous. As the words "nigga" and "nigger" are universally considered obscene, Plaintiff does not have Constitutional protection for this expression. Because Plaintiff does not have any First Amendment protection for said obscene language, his First Amendment Right related to this particular expression cannot be violated.

But, as the court points out, this reflects a misunderstanding of what "obscene" means in First Amendment law.

Defendants argue that plaintiff's free speech claims must fail because the terms "nigga" and "nigger" are obscene and therefore not protected speech. It is true that courts "have long held that obscene speech—sexually explicit material that violates fundamental notions of decency—is not protected by the First Amendment." However, as plaintiff points out, the terms "nigga" and "nigger," while offensive to many, are facially not sexually explicit and, thus, cannot be considered obscene under the framework set forth by the U.S. Supreme Court. Thus, defendants' motion to dismiss on the basis that plaintiff's tweets are obscene speech not protected by the First Amendment will be denied.

(The California Legislature could define "obscene" differently in in its statute if it wanted, but there's no indication that it aimed to use a different definition—and in any event, the plaintiff's claim is that the school's actions violate the First Amendment, not the state statute.)

I think that the school's actions (if plaintiff's factual account is correct) did violate the First Amendment, and couldn't be upheld on any theory. It's true that Castro wasn't expelled from school, or otherwise shortchanged as to his academic activities; but being denied the right to participate in an important public school ceremony—a right that all your classmates have—because of the exercise of one's free speech rights would itself violate the First Amendment. (The logic of Lee v. Weisman, the graduation prayer case, strongly supports that conclusion, though I think the result would be the same even had the dissent prevailed there.) But in any event, the "obscenity" theory is a nonstarter.

NEXT: Today in Supreme Court History: November 19, 1969

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  1. This is just the sort of reassignment of priorities one expects from religious conservative infiltrators struggling to spray their voter-alienating skunk juice on the LP. The competing sabotage is the emphasis communist infiltrators place on first legalizing murder and invasion, and nevermind repealing our way down to the laws that protect individual rights against theft and violence. Sigh…

    1. What the hell?

        1. This is pretty choice.

          1. AIs are getting pretty close to taking over discussions.

            1. I originally thought it was a sophisticated form of spam. Even though there were no links in the comment body, the username is hyperlinked.

              On a lark, I followed the link (on a wipeable computer) – and found a blog of incoherence equal to the post above but going back much further. I no longer consider it spam. I’m now writing it off as someone ranting about things they barely understand in what is almost certainly not their first language.

              1. Poe’s Law: Poe’s law is an adage of Internet culture stating that, without a clear indicator of the author’s intent, it is impossible to create a parody of extreme views so obviously exaggerated that it cannot be mistaken by some readers for a sincere expression of the parodied views.

              2. I spent some time on the blog too, I think English is the first language, but the person isn’t entirely sane either, or at least, the crystal clear connections (like say between Prohibition and the 1929 crash) aren’t as cause and effect at the fellow thinks in real life. Moreover, he uses a lot of mental shorthand on concepts that reads like a bizzaro-world inverse of intersectionalist writing. It is truly a thing to behold.

  2. Another Twitter user saw the tweet and reported it to the school, . . .

    What kind of pursed-lipped Stasi wannabe runs to the administration to tattle about another person’s bad language? This is the kind of behavior for which the saying “Snitches get stitches” would be appropriate.

    1. Probably a cop working the social media beat, rationalized by the need to look for dangerous, or at least disruptive, students to justify their hiring.

    2. “This is the kind of behavior for which the saying “Snitches get stitches” would be appropriate.”

      We are bombarded every day with the idea that that word must never be used by a non-black, even when just singing along to a hip hop song. A word so bad that usually in print we must use only its first letter. A word that gets people fired and/or publicly shamed and gets books removed from schoolls.

      The “snitch” was just acting in accordance with social conditioning.

      1. I think libertarians should start a campaign to restore progrssive-banned words to our lexicon. “Nigger” is a good place to start.

    3. Maybe they’re a New York Times columnist …

    4. I do not know.

      this person needs to be doxxed.

    5. Seems like this is the norm, isn’t it?

    6. “What kind of pursed-lipped Stasi wannabe…?

      It sounds like you answered your own question.

  3. This guy was smart enough not to refer to a bong or to Jesus.

  4. Suing for a right to use harsh racist language. His parents must be so proud.

    1. No, he already had a right to use hash, racist language. He’s suing because the school violated that right when it improperly excluded him from graduation for exercising that right. Big difference.

      1. he already had a right to use hash, racist language

        Interesting slip. I wonder if Bong Hits 4 Jesus would be moot today because it recommends a legal activity.

    2. If it were my kid, I would be proud. The First Amendment is not necessary for speech that everyone agrees with. It takes courage to really stand up for your principles.

      And that’s ignoring the fact that, in context (and assuming the plaintiff’s presentation of the facts), the language used was not especially harsh.

    3. Bob “Missing the Point” from Ohio rings in.

  5. The California Legislature could define “obscene” differently in in its statute if it wanted

    I’m pretty sure the California Legislature did not define “obscene” differently as it would create a First Amendment problem.

    The Supreme Court has defined what “obscene” means, and many jurisdictions either implicitly (only using the word “obscene”) or explicitly (writing out the Court’s test) limit their speech restricting statutes to the standard articulated by the Court.

    If California expanded their definition of “obscenity” to encompass speech which the Supreme Court has decided is not obscene then the statute would necessarily prohibit protected speech, rendering the law unconstitutional.

    I also wonder if California schools regularly punish black students who use the word “nigga” or “nigger” in their tweets, or if such prosecutions are limited to non-black students. If so, then he may have a case for race-based discrimination.

    1. Regarding California being unable to define “obscenity” to mean something different than what the Supreme Court says it is… You would think so, but…

      Cal. Penal Code 653m criminalizes annoying or harassing telephone calls if the language used is obscene. In People v. Hernandez (1991) 231 Cal.App.3d 1376, the Court of Appeal held that the trial court had properly instructed the jury when it defined “obscene” as “offensive to one’s feelings or to prevailing notions of modesty or decency; lewd.” (Id., at p 1384.) The court specifically rejected the Supreme Court’s Miller definition, i.e. language dealing with sex or appealing to prurient interest. (Id., at pp. 1384-85.) This, really, is the law in California. Believe it, or not. In Hernandez, the defendant had made a phone call in which he called a woman a “fucking bitch.”

      1. I wonder why Hernandez was not overruled on appeal.

  6. Do we know if the student in question was black?

    1. Likely not, because it was shared with the Nigerian (who we presume was black) as a form of “intercultural communication,” and blacks have a n*gga pass with each other, so it wouldn’t have been reported had the speaker been black.

  7. How is it that schools have any say over what students say or do out of school?

      1. According to your link, that was a school event, even if outside school, which is reasonable, assuming school censorship itself it.

        Tweeting (assuming not as part of a class exercise) is not such an incident.

    1. “How is it that schools have any say over what students say or do out of school?”

      I agree, I don’t think it’s any of the school’s business what one does outside school, or communicates via resources that are not school owned or controlled, save criminal activity.

      Could a school someday expel a student who’s a fervent Catholic, and holding and espousing views against abortion and homosexuality? (Or, maybe it’s happened already?)

    2. The lower courts are split on the application of Tinker to out-of-school activity.

  8. In my day, we went to high school graduation because we had to. Of course, the language of instruction back then was Latin, and they didn’t teach history because there hadn’t been enough of it yet. I wish we had known then how to get out of going.

    1. If you tweeted that someone was a Carthaginian, that probably would have done the job.

    2. “Of course, the language of instruction back then was Latin, and they didn’t teach history because there hadn’t been enough of it yet.”

      Heh, heh.

  9. There is a growing number of words that I will never use because somebody finds them offensive. At some point, progressive and critical theory advocates will demand that any person who commits wrongthink will be required to perform hara kiri with a wooden sword.

    1. The time is coming when people will point to brain scans and so on, and say, “See? We can measure damage from speech,” and dictators with the gift of gab not yet born will rejoice.

    2. “required to perform hara kiri with a wooden sword”

      Wouldn’t that be cultural appropriation unless you’re Japanese?

  10. Cthulu save anyone who uses the dreaded word G*NGER

  11. Apparently he is representing himself pro se. For an 18 year old pro se plaintiff to bring a federal lawsuit against a school board that survived a motion to dismiss is no small accomplishment.

    1. The briefing is pretty unimpressive, to say the least – he preserved his claims, but the arguments are pretty skeletal. So I’d say the credit mainly goes to the judge.

  12. From the headline, it is apparent that Professor Volokh does not anticipate ever being nominated for a Federal Judgeship, or that he thinks society will have by then recovered some sanity.

    1. We are all going to get cancelled because our eyes saw the forbidden word.

  13. Professor Volokh, you may be cancelled because of your use of “that word” in the title for this thread. Indeed, all of us leaving comments on this thread may need to be cancelled.

  14. If rules about the usage of the n- word (I hate writing that but in the days of internet censors one must), were applied equally regardless of the race of the user many many many people would be in jail. Mostly a lot of blacks who either produce or listen to rap.

  15. I’m confused – someone help me out here. How does this hinge on the definition of “obscene”? Even if he did send a sexually explicit tweet to someone in another country, how would that justify the school’s actions?

    1. In Miller v. California, the Court ruled that obscene speech had a lower level of First Amendment protection than the regular kind, and the defendants are trying to trying to ride that train. Of course, the decision also included a three-part definition of obscenity, and this doesn’t even come close.

  16. From the opinion: “. . . language that is almost universally considered to be profane in nature.”

    The n-word and variants are not, as has been argued, obscene; neither are they profane. “Profane” is the opposite of sacred. Profanities are the taboo words and blasphemies based on taking the Lord’s name in vain, on desecrating or treating with contempt that which is holy, etc.

    Historically, the “dirty words” have been obscenities (sex-based); profanities (above); and scatalogical terms (shit, piss, etc.) Racial and ethnic slurs have become more taboo while sex-based ones have become less so, and the n-word is now sufficiently taboo that it is the equivalent of a dirty word nowadays.

    1. One could also quibble with the “universally” part. It is only considered taboo, inappropriate, etc. in certain contexts, when said by certain people. So it’s not universal.

  17. Seriously, you do *not* want to click on this unless you’re in some kind of sound-proof isolation chamber. NSFW – you’ve been warned.

    https://www.youtube.com/watch?v=NG2EGOB9-lc

  18. Hey Eugine:

    You somehow missed the fact that this 18 year old HS graduate (less ceremony) beat McCormick Barstow “big law” in Fresno. Ok the opposition was a 1st year associate, but still, the kid won. And did fairly well. Now someone needs to let him know how to keep his federal action alive and deal with the claim requirement and he can add a few more causes of action.

    Rather Ironic the school district did such a good job educating this kid, he prevailed against the district and its attorney.

    Congrats Andy Castro !!!!!

  19. The n word is used frequently between blacks all the time. Why do they get a pass?

  20. The Thought Police have become the overlords.
    A private communication between two people, which offended neither one, is reported as offensive thought by a third party, leading to punishment.
    By extension, anyone listening to most any hip-hop song could claim offense, claim “triggering” of some psychological problem, and initiate the ThoPol punishment system to take action. Orwell’s predictive writings have been mostly eliminated from the education system of today.

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