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Student Suspended for Saying Man Who Insulted Her "Needa Get Blasted" + Having Posted (a Year Before) a Shooting Range Video
From Monday's decision by Judge Joseph Dawson, III (D.S.C.) in Lemoine v. Horry Georgetown Technical College:
In September 2024, Leigha Lemoine … was enrolled in the cosmetology program at Defendant Horry Georgetown Technical College ("HGTC"). On September 5, 2024, while Lemoine was off-campus, Lemoine's boyfriend's roommate—who was not an HGTC student—insulted Lemoine. Later that day, Lemoine detailed the incident in a Snapchat group text that included other HGTC students. Therein, Lemoine posted the following:
But naw I was trying to be nice but f[***] that some random ugly a[**] in bread looking f[***] dude called me a b[****] he needa get blasted….
On September 11, 2024, some students at HGTC reported that they "fe[lt] uncomfortable and somewhat unsafe" due to Lemoine's use of "the term 'blasted'" in the Snapchat….
School officials met with Lemoine, who "denied [the Snapchat had] anything to do with physical harm" and said she "only intended that the roommate 'needed to be held accountable and called out for his behavior.'" The officials at first accepted that, but two days later they
discovered a one-year-old video of Lemoine posted on Instagram, in which Lemoine fired a handgun at a target. While firing the handgun, Lemoine was "wearing a western[-]style outfit …." … Lemoine explained [to school officials] that the gun in the video "did not belong" to her and she had never fired a gun before that time….
Apparently because of the combination of this Snapchat and the year-old video, Lemoine was suspended until Summer 2025, based on a student code provision forbidding "[e]ngaging in any activity that disrupts the educational process of the college, interferes with the rights of others, or adversely interferes with other normal functions and services."}
Specifically, [a school administrator] wrote that "[i]n today's climate," Lemoine's "failure to disclose the existence of the video" and "use of the term 'blasted'" created "a significant amount of apprehension related to the presence and use of guns" and that "both employees and students" at HGTC "feel unsafe due to these circumstances." …
Lemoine sued, and the court issued a preliminary injunction ordering that she be readmitted. The court concluded that the speech likely didn't fall into the First Amendment exception for "true threats" of illegal conduct:
First, on September 20, 2024, Defendants agreed with Lemoine's explanation that "blasted" had a completely nonviolent meaning. If Defendants believed that use of the term "blasted" was objectively threatening, it is unlikely they would have accepted Lemoine's explanation. But even assuming that "blasted" could have been objectively threatening on September 20, 2024, Lemoine explained that she only intended to provide commentary about a personal insult directed towards her. Thus, it does not seem—much less clearly appear—that Lemoine's "intent" in making the Snapchat was sufficiently culpable.
Second, the context of the later-discovered Instagram video likely does not support Defendants' decision. Defendants contend that the decision to suspend Lemoine was made in the full context of discovery of the video after Lemoine's "dissembling" about guns. But Defendants do not suggest that there is anything that smacks of impropriety—much less a subtle indicium of danger—about the video. Though Lemoine did not disclose the video's existence, Defendants do not contend that Lemoine affirmatively lied about or tried to hide anything that it disclosed. As Lemoine explained, the one-year- old video depicted the first—and apparently only—time that Lemoine ever fired a gun. Lemoine also stated that the gun was not hers and that she did not see anything wrong with the video. Defendants' admission that, like the Snapchat, there is nothing individually nefarious about the video, is telling.
Finally, the stark difference between the context here and other cases about threats buttresses the Court's conclusion. See, e.g., McNeil v. Sherwood Sch. Dist. 88J (9th Cir. 2019) (off-campus journal entry discovered referring to students and school personnel with "All these People Must Die" and "I am God"); Doe v. Pulaski Cnty. Special Sch. Dist. (8th Cir. 2002) (student wrote "two violent, misogynic, and obscenity-laden rants expressing a desire to molest, rape, and murder" his ex-girlfriend that were discovered off-campus). Notably, Lemoine directed no threat to any student, teacher, or other personnel at HGTC. And no criminal charges have been brought against Lemoine.
Therefore, Lemoine's speech was likely not a true threat. The record lacks an indicium that Lemoine's speech was of any other unprotected class of speech. Therefore, the Snapchat, understood in the light of the Instagram video, receives at least some protection under the First Amendment. The next question is how much.
Lemoine uttered the speech in issue here via two social media applications: Snapchat and Instagram. In doing so, Lemoine spoke "away from [the] college campus." Defendants contend Lemoine's speech "impacted the learning environment" by "causing both employees and students" to "feel unsafe."
And the court concluded that the government's extra power as educator likely didn't justify the punishment here, either.
The Supreme Court began with the doctrine of in loco parentis: "First, a school, in relation to off-campus speech, will rarely stand in loco parentis." Mahanoy Area Sch. Dist. v. B.L. (2021). The Latin term "in loco parentis" means "[i]n the place of a parent," and it applies "when [a] person undertakes care and control of another in absence of such supervision by [the] latter's natural parents."
Here, Lemoine spoke "away from" campus. She spoke outside of the traditional school day and did so in a non-HGTC-operated group chat. These facts alone suggest HGTC did not stand in loco parentis. But Lemoine is also a college student. As a justification for speech regulation, in loco parentis has diminished force in the college context. See Mahanoy Area Sch. Dist. (Alito, J., concurring); cf. Healy v. James (1972) (noting that "[t]he college classroom with its surrounding environs is peculiarly the 'marketplace of ideas'"); see McCauley v. Univ. of the Virgin Islands (3d Cir. 2010) ("Public university 'administrators are granted less leeway in regulating student speech than are public elementary or high school administrators.'")….
"Second, from the student speaker's perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day." Mahanoy Area Sch. Dist. For this reason, courts "must be more skeptical" of attempts to regulate such speech. Here again, Lemoine was "away from" HGTC when she spoke, , and Lemoine spoke in a "group text chain" that, while it included some HGTC students, it was "outside of school owned, school operated, or school supervised channels …." Furthermore, Lemoine's speech occurred sometime in the "evening and into the night …." School regulation on these facts would sweep in much student speech. Thus, Lemoine's speech shares substantially in this feature of off-campus speech….
"Third, the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus." Mahanoy Area Sch. Dist. Here, Lemoine intended to hold the person who insulted her accountable. Calling for accountability is the essence of protected speech. Thus, as a public school, HGTC and its personnel have an interest in protecting unpopular speech like Lemoine's. Thus, Lemoine's off-campus speech shares fully the same underlying rationales supporting limited regulation by the school.
Nonetheless, the interests of the school in regulating off-campus speech are entitled to some weight. In that regard, Defendants point only to the results of their investigation. Namely that Lemoine's Snapchat purportedly "impacted the learning environment, causing both employees and students to express that they feel unsafe due to these circumstances." But these undifferentiated contentions, without more, do not suggest an actual disruption occurred. See Kutchinski ex rel. H.K. v. Freeland Cmty. Sch. Dist. (6th Cir. 2023) (finding a "reasonabl[e] argu[ment] that actual disruption occurred" when a student observed "one of the targeted teachers crying in one of her classes" and there were "whisper[s] about" the purported harassment "during the day" among students). Defendants point to no evidence of any past disruption by Lemoine or any other disruptions occurring under materially similar circumstances.
As to future disruptions, the Fourth Circuit Court of Appeals has said that off-campus speech must create "a reasonably foreseeable substantial disruption" at the school. In Kowalski v. Berkeley Cnty. Sch. (4th Cir. 2011), the court of appeals found it foreseeable that speech via a MySpace group that targeted a fellow high school student for ridicule "would reach the school via computers, smartphones, and other electronic devices" because "most" of the MySpace group members were also students. The problem is that Kowalski is distinguishable in two material respects: the school imposing regulation was a high school, not a college, and the speech in issue there was about a fellow student, not a non-student. These facts about Lemoine's speech diminish the reasonableness of any concern about a disruption (much less a substantial one) occasioned by Lemoine's speech.
Therefore, Defendants' interest in regulating Lemoine's speech is, on the facts here, limited. For that reason, Lemoine is likely to succeed on the merits of a First Amendment claim of retaliation.
Ben LeClercq and David Dale Ashley (LeClercq Law Firm) represent Lemoine.
