Second Circuit finds Snapchat parodies of George Floyd murder fall outside school purview

MANHATTAN (CN) — A Second Circuit panel ruled Thursday that an upstate New York teenager’s school suspension over a social post spoofing the fatal asphyxiation of George Floyd by a Minneapolis police officer violated his First Amendment rights.

The quickly deleted photograph at issue before the Second Circuit Court of Appeals was posted to Snapchat by the private account of Case Leroy, a then-student at Livingston Manor High School, and a couple of his friends in April 2021, one day before a Minnesota jury found police officer Derek Chauvin guilty of George Floyd’s murder.

While waiting in the studio parking lot to pick up one of his friends’ siblings from a private dance class, Leroy and his friends took a photograph resembling the police officer pinning his knee against Floyd’s neck to the pavement for 9 1/2 minutes as Floyd cried “I can’t breathe” one year earlier.

One friend posted the same picture with the Black Lives Matter logo and the caption “Another one down.”

Even though Leroy expeditiously deleted his Snapchat post because his phone started “blowing up” with messages from other people threatening him and cursing him out, screenshots of the post nonetheless made the rounds on Facebook and other platforms, resulting in over 20 emails to school staff about the posts.

After public outcry, in-school discussions, an assembly, a student demonstration and a school investigation, the school superintendent suspended Leroy and barred him from participating in non-academic extracurricular activities for the remainder of the school year.

The school prohibited Leroy from playing football and baseball, going on the senior class trip, and attending the senior breakfast, the senior prom and graduation. He was ultimately allowed to attend graduation after the New York Supreme Court granted him a limited injunction.

In addition to the injunctive relief, Leroy sued the school for $1 million in Sullivan County state court, claiming that the school’s disciplinary actions violated the First Amendment.

The case was removed to the Southern District of New York in White Plains, where the U.S. District Judge Nelson Roman upheld Case’s suspension, granting the school’s motion for summary judgment and concluding that the school did not violate Leroy’s First Amendment rights because his off-campus speech caused substantial disruption in school.

But the Second Circuit panel reversed, concluding the school’s safety interests did not justify the regulation of Leroy’s speech, which otherwise would be protected by the First Amendment.

“The ability to engage in civil discourse with those with whom we disagree is an essential feature of a liberal education,” U.S. Circuit Judge Barrington Parker wrote for the majority. “Teaching students that they can and should be sheltered from speech that offends them is not. At bottom, schools may sometimes restrict or penalize off-campus speech because it is threatening, but they cannot do so because it is offensive.”

Parker, a George W. Bush appointee, was joined by U.S. Circuit Judge Beth Robinson, a Joe Biden appointee, in concluding that Leroy’s speech did not rise to the level of a “true threat” that would fall outside the scope of First Amendment protections.

“The line between the two will not always be clear, and getting it right is important,” Parker wrote. “Drawing the line too broadly carries significant dangers; courts cannot simply dismiss student expressions of fear as mere offense.”

U.S. Circuit Judge Myrna Perez penned a separate, concurring opinion saying the majority did not sufficiently account for legitimate fears “and too summarily disposed of the school’s interest in protecting students.”

“In short, assessing fear versus mere offense is difficult, but there is no reason why it should defy the usual factfinding processes,” the Biden appointee wrote. “I agree wholeheartedly with the majority opinion that there must be a margin of safety around protected speech to avoid the chilling effects that the First Amendment guards against, but that does not require us to presumptively downplay or deny serious harms caused by certain off-campus speech.”

Perez joined the majority in crediting Leroy for quickly attempting to take the post down as soon as he learned how people were reacting to it, which she said indicated that he did not intend that reaction and did not consciously disregard the risks.

“While a reasonable jury could find that Leroy knew he was making an offensive, tasteless and racist joke, that is not the question,” Perez wrote. “The key question is whether Leroy intended or was reckless as to the risk that certain of his classmates would reasonably perceive the joke as threatening, bullying, or harassing, and would feel unsafe in school and have their ability to learn disrupted as a result.”

The Foundation for Individual Rights and Expression, a nonprofit civil liberties group, filed a friend-of-the-court amicus brief on the appeal in the Second Circuit.

Joined by the Manhattan Institute and the National Coalition Against Censorship, the foundation argued Leroy’s suspension violated bedrock First Amendment principles and recent Supreme Court precedent drawing a critical distinction between a school’s authority over students’ on-campus and off-campus speech.

The groups urged the Second Circuit to reverse the lower court’s summary judgment ruling, and ensure public school administrators do not become a 24/7 board of censors over minors’ private expression.

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