Federal Appeals Courts Affirms Students’ Free Speech Rights Outside of School

DENVER — In an important victory for students’ free speech rights, the U.S. Court of Appeals for the 10th Circuit has ruled that a high school could not punish a student for an anti-Semitic message posted on social media outside school. The decision comes in the case C1.G v. Scott Siegfried, et al., which asked whether, and when, public schools can discipline young people for their speech outside of school without running afoul of the First Amendment. The American Civil Liberties Union and ACLU of Colorado filed an amicus brief in the case and appeared at oral argument, urging the court to protect young people’s and students’ free speech rights.

“While the speech at issue here was hateful and asinine, the court’s approach to this case has affirmed the free speech rights of all young people in the 10th Circuit,” said Vera Eidelman, staff attorney for the ACLU Speech, Privacy and Technology Project. “The court correctly recognized that schools cannot reflexively extend their in-school authority off campus. Otherwise, young people would never be fully free to explore ideas or exercise their voices — whether they are posting on Snapchat on a Friday night, attending a protest over the weekend, or writing an op-ed in their local newspaper.”

This is the first case about a school’s authority to discipline students for online, off-campus speech to reach a federal appellate court since the ACLU’s victory last June in Mahanoy v. B.L., in which the U.S. Supreme Court held that schools do not have the same authority to regulate and punish student speech outside of school as they do in school. In C1.G v. Scott Siegfried, et al., the court recognized that, when it comes to political or religious speech, the school will bear a heavy burden in justifying any punishment, and that it will rarely stand in the place of parents when it comes to discipline for off-campus speech.

The case involves an offensive snap a young person posted on Snapchat from a local thrift store on a Friday night. The snap included a photograph of the student and three friends, including one person wearing a World War II-era hat, with an anti-Semitic caption, stating “Me and the boys bout to exterminate the Jews.” Within hours, the student took down the snap and apologized for it. The school expelled the student in response. The school did not claim that the snap constituted bullying or harassment, but argued that it could punish the student just as it could discipline students for in-school speech that has the potential to disrupt the school environment.

The ACLU’s brief focused on the implications of the case not only for CG, but all young people, and argued that schools must respect students’ rights to express themselves outside of school, including their right to express dissenting or unpopular views.