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Racist Instagram account tests limits of protected speech

The Ninth Circuit will decide whether a San Francisco Bay Area High School violated students' constitutional rights by suspending them for liking and commenting on a racist Instagram account run by one of their classmates.

SAN FRANCISCO (CN) — Four years after an Instagram account comparing Black students to gorillas roiled a San Francisco Bay Area high school, the Ninth Circuit set out to settle the question of whether the First Amendment protects liking and commenting on racist and abusive social media posts.

The case arose from an account created in 2016 by an Albany High School student identified as C.E., who gave access to a handful of his friends. His posts targeted 11 female students, most of color, with nooses around their necks and with their pictures featured next to images of apes. Some of the posts featured photos of Black female students taken without their knowledge during class.

The @yungcavage account and its offensive contents did not stay private for long. In March 2017, a female student who heard about the account “borrowed” the cellphone of one of its followers and used it to take screenshots of the account. Copies of the posts spread throughout the school, causing tears and panic. Some students said they were afraid to return to school, and one said she feared classmates would continue taking surreptitious photos of her “and using them in the most offensive ways.”

Thirteen students, including Kevin Chen, Michael Bales, Philip Shen, Nima Kormi, Paul “Poe” and Rick “Roe,” were all outed as participants and suspended. According to one of the lawsuits later filed by their parents, when they returned to school on March 30, 2017, they were forcibly paraded through the school, lined up before the student body, and subjected to the obscenities and jeers of their classmates in a “thinly veiled form of public shaming.”

The school district later settled with seven of the students for roughly $500,000. But U.S. District Judge James Donato ruled mostly in favor of the Albany Unified School District in a federal case brought by Chen, Shen, Kormi and Bales, finding that the school had enacted proper discipline in suspending them and expelling C.E.

The case has also become emblematic of what constitutes “private,” off-campus speech punishable by school authorities.

Alan Beck, an attorney representing Chen and C.E. in their separate appeals, said the discipline was not permissible under the First Amendment since the posts and comments were made outside of school and intended to be kept private.

"The Instagram page at issue was not accessible to anyone other than a small group of people,” he told a panel of two Ninth Circuit judges on Monday. A third judge was not present for the arguments.

U.S. Circuit Judge Daniel Collins zeroed in on the ostensible privacy of the account and whether the comments fall under the standard set by the 1969 case Tinker v. Des Moines Independent School District, a watershed Supreme Court ruling upholding students’ rights to free expression. Under Tinker, a school cannot infringe on a student’s First Amendment right to free speech unless it can show that the speech would lead to either a substantial disruption of the school environment, or an invasion of other students’ rights.

"Certainly if you have posts with a small group of friends you're taking a risk that you know that they may disseminate those to others — you can't control that distribution — and given the nature of the speech at issue here that seems both foreseeable in its occurrence and its impact,” The Trump appointee said. “So why isn't that sufficient to bring it under the scope of things school can address under Tinker?”

“Students have some right to off-campus speech which is controversial in nature,” Beck replied, equating the account, which required an invitation to join, to an off-campus discussion at someone’s house. “For this court to adopt that type of 'foreseeable' analysis, it would be impossible for a student to engage in any controversial or political discussion outside of school grounds.”

Collins pressed on. “This isn't political discussion. This is something that if it had been sent to the students in question it would be viewed as harassment or potentially even fighting words,” he said, and asked Beck to explain why the school was not permitted to treat such speech as an intrusion when it was “arguably inevitable" that the targeted students would eventually see the racist posts. “Are they just supposed to ignore that?”

“I dispute the premise that this was inevitably going to reach the students at issue here,” Beck answered.

Beck also argued that the content of the speech at issue was irrelevant, a point the the school district’s attorney, Seth Gordon, ardently disputed.

One posted photo of the high school womens’ basketball team showed a Black female player and the AHS basketball coach, both with nooses drawn around their necks, and captioned “twinning is winning.”

C.E. also posted a photo called a “Ku Klux starter pack” that featured a noose, a burning torch, a white hood and a black doll.

The students participated in the account to varying degrees. Chen, for example, wrote “its [sic] too good” on a post comparing a classmate to a gorilla.

“It wasn't private,” Gordon said. “This isn't a situation where Chen went home and wrote something in his diary where nobody could see it.”

He added, “It wasn't only reasonably foreseeable, it was inevitable that this speech would make its way onto campus. The speech in this case did cause a substantial disruption.”

The judges took arguments under submission. They will also issue a decision in C.E.'s companion appeal over his expulsion.

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