Two students who sued their California high school after being expelled for making and “liking” racist Instagram posts cannot fall back on free speech arguments — and it isn’t a close question, a federal appeals court ruled.
A unanimous panel of the U.S. Court of Appeals for the 9th Circuit ruled that the posts comparing Black students to gorillas and using lynching imagery were “obviously” not protected by the First Amendment.
Cedric Epple and Kevin Chen were students at Albany High School when Epple created a private Instagram account username “@yungcavage” for the purpose of sharing “funny memes” with a small audience of close friends that “other people might not find funny or appropriate.” During the 2016-17 school year, Epple repeatedly used the @yungcavage account to cruelly insult his classmates.
Court findings detailed some of Epple’s posts, which included:
- immature posts making fun of a student’s braces, glasses, and weight.
- a screenshot of texts in which Epple and a Black classmate were arguing, and he added the caption, “Holy shit I’m on the edge of bringing my rope to school on Monday.”
- a screen shot of a Black student’s Instagram post in which she stated “I wanna go back to the old way” combined with a second photo of historical drawing that appears to depict a slave master paddling a naked Black man who is strung up by rope around his hands.the statement and the words, “Do you really tho?”
- a photograph in which a Black member of the girls’ basketball team was standing next to the team coach, who was also Black, with nooses drawn around both their necks along with the caption “twinning is winning.”
- images either depicting, or making light of, Ku Klux Klan violence against Black people.
- a historical photograph of a lynched man still hanging from a tree
- a Klan member in a white hood.
- pictures of a noose, a white hood, a burning torch, and a Black doll, with the caption “Ku klux starter pack.”
Some of Epple’s posts were particularly problematic in that they prompted a series of exchanges in the comments. One such post showed the image of a Black student sitting in class, captioned with the statement, “The gorilla exhibit is nice today.” Another related post included side-by-side images of a Black classmates and a gorilla.
On these posts, Chen commented from his account “@kkkevinkkkkk,” that, “It’s too good.”
One of @yuncavage’s followers responded to Chen’s comment, “Hey not funny,” “Fuck you,” and “Delete this.”
Chen responded to these comments with another comment stating, “no fuck YOU you dirty zookeeping son of a bitch.”
Another of Epple’s posts featured the backs of two Black students’ heads while they sat in class, along with the comment, “Fucking nappy ass piece of shit.” A third asked followers, “Who the fuck is this [N-word],” after a Black student requested to follow the @yungcavage account. In his post, Epple spelled out the racial slur in uncensored form.
Chen, as @kkkevinkkkkk, responded to each post with a “like.”
Word of the posts spread quickly throughout the school and caused outrage among students and their families. Students and their families held unity rallies on and off campus as the school community grappled with the incident.
Some of the students targeted in the posts began to suffer in various ways, including losing sleep and missing days of school. Many students reported to administration that they were too upset to go to class. One student even withdrew from the school altogether.
The school administration responded with various kinds of discipline, and eventually expelled both Epple and Chen.
Both students sued, claiming that the expulsion was a violation of their free speech rights under both the First Amendment and California law. Their lawsuit argued that the Instagram posts had been private, and that like the cheerleader in the recent “Fuck school fuck softball fuck cheer fuck everything” case, they should have the right to speak freely in an off-campus setting.
In 2021, the Supreme Court ruled 8 to 1 in favor of the cheerleader. The justices found that although her speech had been vulgar, the teen had a right to criticize her school, particularly given that the speech had occurred off-campus and did not risk classmates’ safety.
However, the 9th Circuit, as had been the district court before it, was clear that Epple and Chen’s conduct was a far cry from the cheerleader’s protected comments.
A three-judge panel which included U.S. Circuit Judge Daniel Collins, a Donald Trump appointee; U.S. Circuit Judge Ronald Gould, a Bill Clinton appointee; and Senior U.S. District Judge Roslyn Silver, another Clinton appointee sitting by designation from the District of Arizona; ruled that the likelihood of “substantial disruption of or material interference with school activities” in the case was “obvious” and that the district was well within its rights to expel both students.
Collins wrote the opinion for the unanimous panel, which noted that the posts created havoc at the school. “Even students who were not targeted by the posts became distraught and were among a group who spontaneously gathered together, ‘crying and yelling’ and ‘too upset to go to class,'” Collins noted.
The panel made short work of any argument that Epple’s posts should not have been “censored” by the school as they might be protected as “political ideology.” Collins wrote that given that Epple admitted that he posted simply to “entertain [his] friends,” any claim that they sought to make a political statement “rings hollow.”
Similarly, the panel smacked down Epple’s argument that his posts were meant to be private and circulated only among a small group of chosen followers.
Collins wrote called the posts “a ticking bomb of vicious targeted abuse that could be readily detonated by anyone following the account,” and said Epple should have expected the school to retaliate with discipline.
As for Chen, the panel acknowledged that his involvement was distinct from Epple’s. However, the three judges ruled that Chen’s “likes” and comments were still enough to warrant his expulsion.
“At the very least, Chen is akin to a student who eggs on a bully who torments classmates,” reasoned Collins.
Gould penned a concurrence that called for the need to “refine the Supreme Court’s prior guidance” in the area of student free speech rights and hateful speech.
“School boards properly have power to discipline the perpetrators of hate speech,” Gould wrote, emphasizing, “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.”
Gould discussed the special place schools have in society, and the need for schools to have the authority to root out violence at its core.
“Hate speech has no role in our society and contributes little or nothing to the free-flowing marketplace of ideas that is essential to protect in a school environment,” Gould wrote. “When school authorities take action to root out the persistent echoes of racism that arise from time to time in American society, courts should not stop them, instead allowing racist comments to be rooted out and not deemed protected by the First Amendment.”
Gould argued that race-based hate speech is inherently dangerous in that it “dehumanize[s] African American students,” and threatens violence, bullying, and harassment. Gould went on, calling out Supreme Court Justice Clarence Thomas for his dissent in the 2003 Virginia v. Black, which upheld a state law that banned cross burning. Instead of focusing on conduct that might accompany speech (as Thomas would have), Gould urged SCOTUS to retool its analysis. Gould suggested that the Court think of hate speech as itself harmful and perhaps modify the Brandenburg test to require only a “probable and emerging threat of violence,” instead of the current standard of “imminent lawless action.”
Counsel for the parties did not immediately respond to request for comment.
[screengrab via YouTube/WKPIX]
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