ACLU Files Amicus Brief Urging Court to to Uphold Students’ Free Speech Rights

September 17, 2021 9:00 am

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WASHINGTON — The American Civil Liberties Union and the ACLU of Colorado filed an amicus brief on September 15 with the U.S. Court of Appeals for the Tenth Circuit urging the court to protect young people and students’ free speech rights. The brief argues that school authorities must respect students’ rights to express themselves outside of school, including their right to express dissenting or unpopular views.

The case, C1.G v. Scott Siegfried, et al., 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 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 to the same extent that it could discipline students for in school speech that has the potential to disrupt the school environment.

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 contexts. The district court in this case, ruling before the Mahanoy case was decided, held that schools should have the same authority to regulate off-campus online speech as they have to regulate student speech on campus.

“There are many appropriate actions that school officials should take when they’re made aware of bigoted off-campus speech, including condemning the speech and educating students about tolerance,” said Ben Wizner, director of the ACLU Speech, Privacy and Technology Project. “But the hateful nature of the speech here should not set the standard for all high school students. Young people have First Amendment rights, and the Supreme Court has made clear that those rights are more robust when students are off campus and outside school hours. If schools had the authority to punish off-campus speech merely because it might cause in-school ‘disruption,’ all manner of young people’s speech, including comments on politics, criticisms of school operations, and general expressions of teen frustration, would be in peril.”

The ACLU brief concedes that the speech in question is undeniably offensive, but maintains that the detestable nature of the speech here cannot justify diminishing the First Amendment’s protections for young people. It highlights that the Supreme Court’s ruling in Mahanoy made clear that schools do not have the same authority to punish students for speech outside of school, including in the online world, as they do in school contexts. Outside of school-supervised settings, young people have the right to express themselves without being punished for their ideas, and other young people and adults have the right to hear what they have to say.

The lower court found the student’s snap was not protected speech under the Tinker v. Des Moines disruption standard, reasoning that, given the pervasive nature of the internet, the snap would inevitably reach school. The brief argues that the Supreme Court rejected precisely this rule and reasoning in Mahanoy. It argues that the court of appeals should reverse the lower court’s decision and hold that Tinker v. Des Moines is not the appropriate standard to apply when schools seek to regulate young people’s speech outside of school-supervised settings.

The brief is available here:

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