The Volokh Conspiracy
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From Chen v Albany Unified School Dist., decided today by the Ninth Circuit, in an opinion by Judge Daniel Collins, joined by Judge Ronald Gould and District Judge Roslyn Silver; the opinion is long, so I'll try to excerpt it briefly here, but you can read the whole thing for yourselves (I'll also put up a separate post shortly about Judge Gould's concurring opinion):
This case concerns a public high school's ability under the First Amendment to discipline students for assertedly "private" off-campus social media posts that, once they predictably made their way on to campus, amounted to "severe bullying or harassment targeting particular" classmates. Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy (2021). We hold that, under the circumstances of this case, the school properly disciplined two of the involved students for bullying….
In November 2016, at the suggestion of a friend, [plaintiff] Epple created a private Instagram account to share comments "privately with my small group of friends." Unlike Epple's "'main' Instagram account," which he used to "share images that are appropriate for a wide audience," he intended this new account, which operated under the username "yungcavage," to be "a private forum where [he] could share funny memes, images, and comments with [his] close friends that [they] thought were funny, but which other people might not find funny or appropriate." Epple attempted to keep the account "very private," rejecting several requests to follow the account and only approving requests to "follow" the account from "close friends" that he thought he "could trust to keep the material private." Over the ensuing months, Epple only allowed about "13 people to follow the account," including [plaintiff] Chen. He "never intended any person outside [his] close group of friends to see the images [he] posted to the account." Chen "followed" the account using the Instagram username "kkkevinkkkkk." Chen likewise understood that Epple's second Instagram account was to "be a private forum (by invite only), exclusive to [their] friends, and a place where [they] could share sarcasm, jokes, funny images, and other banter privately." Not all of the persons who eventually followed the account knew who the owner of the account was.
Between November 2016 and March 2017, Epple used the account to make a number of cruelly insulting posts about various AHS students. These ranged from immature posts making fun of a student's braces, glasses, or weight to much more disturbing posts that targeted vicious invective with racist and violent themes against specific Black classmates. For example, in early February 2017, Epple uploaded a photograph in which a Black member of the AHS girls' basketball team was standing next to the team coach, who was also Black, and Epple drew nooses around both their necks and added the caption "twinning is winning." In another post, he combined (1) a screen shot of a particular Black student's Instagram post in which she stated "I wanna go back to the old way" with (2) the statement "Do you really tho?", accompanied by a historical drawing that appears to depict a slave master paddling a naked Black man who is strung up by rope around his hands. On February 11, 2017, he posted a screenshot of texts in which he and a Black classmate were arguing, and he added the caption "Holy shit I'm on the edge of bringing my rope to school on Monday." Other posts, although not referencing specific students, contained images either depicting, or making light of, Ku Klux Klan violence against Black people. One post included what appears to be a historical photograph of a lynched man still hanging from a tree; another depicts a Klan member in a white hood; and a third combines the caption "Ku klux starter pack" with pictures of a noose, a white hood, a burning torch, and a Black doll.
Epple also created several posts that, while omitting references to violence, still aimed highly offensive racist insults at identifiable Black classmates. In one, he uploaded an image of a Black student sitting in class that was captioned with the statement "The gorilla exhibit is nice today." In another post, Epple included side-by-side images of one of his Black classmates and a gorilla. Chen added a comment on that post stating, "Its too good," but one of the private account's other followers responded with a series of comments saying: "Hey not funny," "Fuck you," and "Delete this." Chen then responded to these comments with a further comment stating, "no fuck YOU you dirty zookeeping son of a bitch." Two of Epple's other posts feature the back of the head of two different Black students while each was sitting in class, with the first including his comment "Fucking nappy ass piece of shit" and the second saying "Fuck you." After a Black classmate asked to join the account, Epple made a post asking his followers, "Who the fuck is this nigger." Chen responded by "liking" that post.
In addition to the comments mentioned earlier, Chen contributed to the Instagram account on several other occasions. For example, he took a picture of a Black student during class, without her permission, and sent it by Snapchat with the caption, "She's eating a fucking carrot"; Epple then posted that captioned picture to the Instagram account. In comments on another post, Chen called a non-Black student who followed the account a "nigger" after the student guessed (incorrectly) that Chen was the owner of the account.
Although the "yungcavage" account was intended to be private, knowledge of its contents eventually spread to the school….
Chen and Epple were expelled, and the Ninth Circuit held the expulsions didn't violate the First Amendment under Tinker v. Des Moines Indep. School Dist. (1969); the court noted that public K-12 schools may punish student for speech (even when that speech couldn't be criminally punished by the government acting as sovereign, and went on to say:
[W]e readily conclude that the First Amendment would not prevent a school from punishing the sort of speech at issue here had it "occur[red] under [the school's] supervision." The posts in the yungcavage account include vicious invective that was targeted at specific individuals and that employed deeply offensive and insulting words and images that, as used here, contribute nothing to the "marketplace of ideas." Moreover, some of the posts used violent imagery that, even if subjectively intended only as immature attempts at malign comedy, would reasonably be viewed as alarming, both to the students targeted in such violently-themed posts and to the school community more generally. In particular, combining photographs of specific students with images drawing upon the horrific legacy of terroristic violence executed by the Klan against Black people would understandably be deeply upsetting and intimidating to the targeted students.
Had these posts been printed on flyers that were distributed furtively by students on school grounds but then discovered by school authorities, the "collision with the rights of [the targeted] students to be secure and to be let alone" would be obvious. As we explained in C.R., severe targeted harassment of fellow students based on their physical characteristics—there, sexual harassment that "positions the target as a sexual object" and here, racial harassment that vilifies people based on their race—threatens the targeted students' "sense of physical, as well as emotional and psychological, security." See also Monteiro v. Tempe Union High Sch. Dist. (9th Cir. 1998) ("[R]acist attacks need not be directed at the complainant in order to create a hostile educational environment."). And the likelihood of "substantial disruption of or material interference with school activities" from such malicious abuse aimed at particular students is equally obvious and, as we explain below, amply demonstrated in the record here. Even assuming arguendo that the posts at issue did not amount to unprotected true threats or fighting words, nothing in the First Amendment would even remotely require schools to tolerate such behavior or speech that occurs under its auspices.…
The central question here is instead whether the assertedly off-campus nature of the speech places it outside of the school's authority to regulate or to discipline…. Although the Supreme Court in Mahanoy declined to articulate "a broad, highly general First Amendment rule stating just what counts as 'off campus' speech" or identifying when "a school's special need[s]" as recognized in Tinker might justify regulating such speech, our caselaw has set forth additional standards that address that issue. Prior to Mahanoy, we devised a three-factor test for "determin[ing], based on the totality of the circumstances, whether [off-campus] speech bears a sufficient nexus to the school" to allow regulation by a school district. "This test is flexible and fact-specific, but the relevant considerations will include (1) the degree and likelihood of harm to the school caused or augured by the speech, (2) whether it was reasonably foreseeable that the speech would reach and impact the school, and (3) the relation between the content and context of the speech and the school." …
The Supreme Court's analysis of the school's ability to regulate B.L.'s speech in Mahanoy considered many of the same factors, including whether "'substantial disruption' of a school activity or a threatened harm to the rights of others" had been shown; the fact that B.L.'s speech, when posted, "might well be transmitted to other students, team members, coaches, and faculty"; and the "message" communicated by the post and whether it implicated matters of legitimate concern to the school's special interests or more conventionally protected content. Moreover, the additional specific considerations that the Court identified—whether the school can be said to be acting in loco parentis in regulating the speech; whether off-campus regulation threatens a student's ability to engage in certain speech "at all"; and whether the speech implicates interests in protecting unpopular ideas—all fit comfortably within the three-factor framework we articulated in McNeil, particularly McNeil's third factor. Properly applied, our sufficient-nexus test avoids the concerns that the Court identified about school regulation of off-campus speech…. [And] we think it is clear that Epple's speech bore a sufficient nexus to AHS to warrant disciplinary action by the school….
Epple contends that the students' reactions to the speech cannot be given controlling weight, because those reactions were occasioned by the offensive content of the speech and therefore raise the specter of a "heckler's veto." He argues that "even the most racist expressive conduct such as promoting the swastika as part of a Nazi party rally is entitled to government protection" and that Mahanoy underscores the school's obligation to defend "unpopular expression." These arguments are unavailing on the facts of this case. For two reasons, "the relation between the content and context of the speech and the school" here does not present the danger of censorship and instead weighs heavily in favor of upholding the school's assertion of disciplinary authority.
First, once Epple's posts hit their targets, the school was confronted with a situation in which a number of its students thereby became the subjects of "serious or severe bullying or harassment targeting particular individuals"—which Mahanoy specifically identifies as an "off-campus circumstance" in which "[t]he school's regulatory interests remain significant." … Although Epple may be correct that his parents have the primary responsibility for policing his off-campus use of social media, the school's authority and responsibility to act in loco parentis also includes the role of protecting other students from being maltreated by their classmates. Epple's conduct here strongly implicated that "significant" interest of the school….
Second, Epple's posts do not stand on the same footing as his example of the "racist expressive conduct" of those who use "the swastika as part of a Nazi party rally." For one thing, Epple never contended in the proceedings below that, like swastika-waving Nazis, he was actually espousing and communicating the view that Black people are supposedly inferior. Although his summary judgment motion described the images as "politically charged" and as "seemingly advocat[ing] for a particular political ideology through the use of satire," Epple's declaration in support of that motion explained his posts as simply "juvenile and offensive" attempts at "humor" that were posted "with the sole intention of entertaining my friends." As a result, his claim that the school was somehow censoring the promotion of a disfavored ideological message rings hollow.
Moreover, given the extraordinary nature of the abuse Epple targeted at specific classmates, his discipline does not raise the specter of punishment based on a "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." On the contrary, even assuming arguendo that Epple's posts did not amount to "fighting words" or true threats, they were enough of a near-miss that, in the context of minors in a secondary school environment, they are nonetheless fairly viewed as "a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey." Students such as Epple remain free to express offensive and other unpopular viewpoints, but that does not include a license to disseminate severely harassing invective targeted at particular classmates in a manner that is readily and foreseeably transmissible to those students.
Epple again emphasizes that he did not ever intend for the targets of his posts to ever see them. But having constructed, so to speak, a ticking bomb of vicious targeted abuse that could be readily detonated by anyone following the account, Epple can hardly be surprised that his school did not look the other way when that shrapnel began to hit its targets at the school. And, as we have explained, recognizing an authority in school administrators to respond to the sort of harassment at issue here presents no risk that they will thereby be able to "punish students engaged in protected political speech in the comfort of their own homes." Epple's actions had a sufficient nexus to AHS, and his discipline fits comfortably within Tinker's framework and does not threaten the "marketplace of ideas" at AHS.
Congratulations to Seth L. Gordon, Katherine A. Alberts, and Louis A. Leone, of Leone Alberts & Duus APC, who represented the school defendants.