Social Media Speech "Recklessly" Jeopardizing Classmates' Sense of "Safety" by "Condon[ing]" "Forcible Family Separation by Immigration Authorities" May Be Punishable

So argues a concurring opinion in today's Second Circuit decision in Leroy v. Livingston Manor Central School Dist., also speaking about speech that "callously cheer[s] on or condone[s]" "police brutality, ... religiously-motivated attacks on their houses of worship, sexual or gender-based violence, or any other type of targeted state or private violence."

I wrote earlier today about Judge Barrington Parker's majority opinion in this case (disclosure: I argued in the case on behalf of amici Center for Individual Rights and myself); here's a short excerpt from Judge Myrna Pérez's long opinion concurring in the judgment:

The common thread running through threats, bullying, and harassment—the types of off-campus speech that all generally agree must be regulable at least some of the time—is that they disrupt student learning by causing students to fear for their safety. While fear is not the only emotion that can disrupt learning, it is uniquely detrimental to students' ability to learn, and it must be within schools' power to protect both their students' physical safety and their feelings of safety…..

Obviously, if students fear their classmates will hurt them, they will be less able to learn. But learning can also be disrupted if students believe their classmates will callously cheer on or condone their being harmed outside of their schools. Students come to school with all kinds of fears about how they and those they love could be harmed inside and outside of school—whether they fear police brutality, forcible family separation by immigration authorities, religiously-motivated attacks on their houses of worship, sexual or gender-based violence, or any other type of targeted state or private violence.

Those fears doubtless weigh on students as they try to learn, so they implicate the state's "compelling interest" in maintaining an environment "conducive to the students' learning." And those fears often weigh on specific students with specific life experiences, whether they are targeted individually or based on membership in a group. While classmates and schools may not be responsible for (or capable of) assuaging those worries, schools must have authority to step in to stop them from being made worse….

Focusing … on whether speech in fact causes students to fear for their safety, inhibiting their ability to learn and implicating the school's compelling interests under Tinker, strikes an appropriate balance that protects the rights of speakers and hearers, as well as the rights of all students and their parents….

Courts can objectively evaluate whether they are dealing with speech that a student could reasonably perceive as threatening, bullying, or harassing in context. For example, could a Black student reasonably perceive his classmate broadcasting a photo, apparently giving the thumbs-up to George Floyd's murder, as a jury begins deliberating over Derek Chauvin's guilt, as an act of racialized harassment? Whether speech was specifically targeted at an individual is relevant to but not dispositive of the objective part of the inquiry. Even speech broadcast to a wide audience can nonetheless impact certain hearers in the same way as if it were transmitted to them directly.

And the broader context of the school community is particularly important to how a student would perceive the speech. For example, if there had been a recent pattern of harassment against a school's small Black student population, then a student might reasonably be more likely to see a given incident as another act in that pattern. Courts and, if necessary, juries are also able to evaluate whether students' ability to learn was in fact materially disrupted, or whether schools reasonably forecast that their learning would be disrupted, or whether the concern was merely over annoyance, distraction, or offense.

In sorting this out, the standard methods of evaluating credibility, such as cross- examination, can do much of the work. And giving appropriate weight to the views of school administrators and staff can do much of the rest. Schools perform "important, delicate, and highly discretionary functions," albeit "within the limits of the Bill of Rights." In close cases, where courts may be ill-suited to discern whether a student complaining about a classmate's speech was merely offended or felt truly unsafe, that student's teacher, who observed her demeanor and capacity to engage in class the next day, will have unique insight….

The concurrence went on to conclude that students' speech that is thus seen (under the analysis above) as undermining students' sense of safety could only be punished if the student was at least "reckless" about this danger—"consciously disregard[ed] a substantial and unjustifiable risk that the conduct will cause harm to another." And the concurrence concluded that, on the facts of this case, the student's speech wasn't punishable.

Perhaps I'm misreading the concurrence, but it sounds to me that it would essentially strip First Amendment protection, 24/7, from students' outside-school online speech when they're aware that the speech may make classmates feel "unsafe"—not just by personally threatening them, but by praising various harms that might befall their group. The opinion stresses that such "safety" harms can take place when classmates "callously cheer on or condone their being harmed outside of their schools," and that would include

• "police brutality,"
• "forcible family separation by immigration authorities,"
• "religiously-motivated attacks on their houses of worship,"
• "sexual or gender-based violence," or
• "any other type of targeted state or private violence."

It sounds like that would cover, for instance, outside-school speech

• praising deportation of illegal aliens, when the authors are aware that some classmates might be fearful of "forcible family separation by immigration authorities";
• condoning the Hamas attacks on Israelis, when the authors are aware that some classmates with family in Israel might be fearful of future such attacks (either against family members or against themselves when they go visit);
• condoning "police brutality"—e.g., by saying that some police attack was justified even if school authorities or other authorities thought it wasn't—when the authors are aware that some classmates might be fearful of such brutality against them or family members;
• "callously cheer[ing] on or condon[ing]" "targeted … private violence" against controversial political candidates or health insurance company executives, when the authors are aware that some classmates might be fearful of such violence against their own families.

My view, set forth in our amicus brief in this case, is that such speech must remain protected (and I think it likely would be under the majority opinion); here's our Summary of Argument:

Under the Tinker substantial disruption test, as applied to in-school speech, students might sometimes have to forgo certain controversial state­ments in school and limit themselves to out-of-school speech instead. But if Tinker is also applied to out-of-school speech, as it was here, students could be foreclosed from expressing controversial views at all, 24/7, everywhere—on the Internet, in letters to the editor, at political rallies, in conversation at church, and wherever else.

A student who has strong feelings on the Israeli-Palestinian conflict, for instance, would then be wise to just shut up about them, for fear of being suspended (and perhaps, if the speech is repeated, transferred to a different school or expelled outright). Likewise for students who disapprove of transgender athletes participating in women's sports, or who endorse religious views about gender identity or sexual orientation that some might find offensive. Likewise for students whose views are seen as unpatriotic, anti-police, pro-Communist, or whatever else arouses public hostility. Expressing a view anywhere and anytime could be punished, so long as it offends enough people that it leads to some number of outraged e-mails to school authorities, and possibly some students disapproving of it at school and perhaps acting badly as a result[.]

America would then shift away from Tinker's admonition that "[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" to a rule under which students shed their constitutional rights even far outside the schoolhouse gate. And such an approach would embrace a heckler's veto, under which student speech, even outside school, could be punished so long as enough people disapprove of it or threaten disruption as a result of it.‌

The majority in Mahanoy Area Sch. Dist. v. B.L. (2021), declined to conclusively determine when off-campus student speech may be restricted, though it did make clear that such restrictions are not easy to justify. But Justice Alito's concurrence (joined by Justice Gorsuch) offered a sound solution: Speech that does not expressly target students, school employees, or the school, but instead simply "addresses matters of public concern, including sensitive subjects like politics, religion, and social relations," must "almost always [be] beyond the regulatory authority of a public school.‌" "Almost always" is not "always": There will remain exceptions such as for incitement, solicitation, true threats, defamation, and the like, and some restrictions that pass strict scrutiny might be constitutional. Yet students would, under this approach, remain generally free to express their views on even the most controversial issues of the day.‌

Thanks to then-Stanford-law-student Mathew Sperling, who worked on the amicus brief.