By David M. Greenwald
Executive Editor
A Ninth Circuit Panel rejected First Amendment claims brought by students against Albany High School and school officials after “the students were disciplined for assertedly “private” off-campus social media posts that amounted to severe bullying or harassment targeting particular classmates.”
Students Kevin Chen and Cedric Epple claimed that defendants “violated their free speech rights under the First Amendment, the California Constitution, and the California Education Code.” They argued that “their speech was not susceptible to regulation because they engaged in it off campus, and therefore defendants could not constitutionally discipline them.”
Under the circumstance, the panel ruled that the school “properly disciplined two of the involved students for bullying.”
The case dates back to 2016-17 where the plaintiff were students at Albany High School in Albany, California. One of the students maintained a private Instagram account in which only about 13 people were able to follow the account.
According to the court, “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.”
The court added, “Epple also created several posts that, while omitting references to violence, still aimed highly offensive racist insults at identifiable Black classmates.”
While the account may have been intended to be private, knowledge spread around the school and drew considerable attention, photos were shared with other students, and the school determined that the posts depicting things like lynching and noose could be “construed as threats of violence” which got law enforcement involved.
“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,” Ninth Circuit Judge Daniel Collins wrote for the court opinion.
In general the courts have protected hate speech as protected free speech, however, in this case, with specific targets, it was an easy call for the court to rule that this was bullying and harassment rather than free speech.
What becomes more interesting is the concurring opinion by Judge Ronald Gould, of the U.S. Court of Appeals for the Ninth Circuit. Gould goes a lot further, arguing that hate speech represents “a reemerging threat to society throughout the nation today.”
He argued, “Hate speech, whether in the form of a burning cross, or in the form of a call for genocide, or in the form of a tee shirt misusing biblical text to hold gay students to scorn, need not under Supreme Court decisions be given the full protection of the First Amendment in the context of the school environment, where administrators have a duty to protect students from physical or psychological harms.”
He finds that the “continued prevalence of hate speech and crimes against American citizens… is evidence of the enduring threat of hate crimes to the fabric of American democratic society and to the safety and security of individuals.”
Gould added, “I write to underscore that the First Amendment and Supreme Court precedent do not require courts always to strike down a government entity’s attempts to prevent harm to their citizens – especially in the context of hateful speech at schools harming children.
“If the Supreme Court decides to reassess its precedents in this area, I urge them to not blink at the fact of grievous harm that hate speech causes its targets. I also urge the Court not to give any First Amendment protection for racist hate speech,” Gould wrote. “I would adopt an expansive view of the ability of government officials who regulate schools to protect the future citizens they are bound to serve and educate.”
The court has held, since the landmark 1969 case Brandenburg v. Ohio, that speech intending to advocate illegal action can be restricted if it is “directed to inciting or producing imminent lawless action.” But otherwise, even hate speech advocating illegal conduct is protected speech.
But Gould said the justices could change the standard to require only a “probable and emerging threat of violence” for speech to be restricted.
While it seems improbable that the Supreme Court filled with conservatives would take such an expansive view of the threat of hate speech, the concurring opinion definitely lays down groundwork for discussion.
