Off-campus social media meme ridiculing George Floyd is entitled to First Amendment protection

The Court of Appeals has ruled that a school district in Sullivan County did not have the right to discipline a student who circulated off-campus a racially-insensitive social media meme relating to the murder of George Floyd. The Circuit navigates two of the leading First Amendment cases governing students speech rights and a school district's obligation to teach racial sensitivity. 

The case is Leroy v. Livingston Manor School District, issued on October 30. Plaintiff was a high school student who posted a staged photo of his friends depicting someone (in the role of a police officer) with his knee on the neck of a classmate (in the role of George Floyd), with the caption, "Cops got another." This photo went on social media outside the school campus, after school hours. Plaintiff intended the photo as a joke, but once he saw the backlash on campus, he pulled it from social media. The district suspended plaintiff and barred him from attending various school activities for the rest of the school year. 

Two Supreme Court cases guide this ruling. First, in Tinker v. Des Moines Independent  Community Sch. Dist., the Court said in 1969 that students still have speech rights on campus but the district may regulate that speech if necessary to avoid substantial disorder or invasion of the rights of others. In that case, the Court said the district court could not order high school students to remove their anti-Vietnam War armbands, even though this protest did cause some discomfort on campus. In Mahoney Sch. Dist. v. B.L., the Court held in 2022 that schools have authority to regulate off-campus speech in limited circumstances. Courts have to consider (1) the nature of the speech, (2) when, where and how the student spoke, and (3) the school's interest in regulating the speech. In Mahoney, the Court said a cheerleader, who used profanity in complaining about not making the cheerleading squad, had the right to criticize the school without discipline. The speech in Mahoney did not quite have the gravity of the anti-war speech in Tinker, but speech is speech, serious or not. These balancing tests, like all balancing tests, gives judges some discretion to resolve the case one way or the other.

This is not an easy case for the Second Circuit (Parker, Perez and Robinson), which issued 70 pages of legal analysis, including a concurrence, carefully reviewing the impact plaintiff's speech had on the student community when the nation was focused on police brutality and institutional racism. In response to the meme, the district did have students attend racial awareness programs, invited law enforcement to monitor the campus for a brief period, and generally had to deal with enhanced debate on the George Floyd matter. Plaintiff and his friends were even told to stay home for a few days "for their own safety." So the speech did disrupt the school environment,

But the Second Circuit holds that the discipline against plaintiff violated the First Amendment because (1) the speech did not contain any threats of violence or fighting words, (2) the speech was off-campus, and (3) the school's interest in teaching racial insensitivity does not outweigh plaintiff's speech rights, especially since, in the Mahoney case, the Supreme Court said the student's off-campus social media vulgarities were also entitled to First Amendment protection, and the district in this case found other ways to teach proper values to its students, including an in-school assembly and facilitating a student demonstration. 

This case is significant because of the social media element. There was no internet when the Tinker case issued, and I guess the closest parallel would have been an off-campus student newspaper that made its way onto campus. The Second Circuit notes that, for better or worse, students largely communicate with each other through social media, and they will say or do stupid or silly things that will have some impact on the school environment.