Students Lose Appeal in Case over Racist Instagram Posts
Two students who sued their California high school after they were expelled for making and “liking” racist Instagram posts can’t fall back on free speech arguments — and that’s not a narrow question, a federal court ruled of appeal.
A unanimous panel of the US Court of Appeals for the 9th Circuit ruled that posts comparing black students to gorillas and using lynching imagery were not “clearly” protected by the First Amendment.
Cedric Apple 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 suitable”. During the 2016-17 school year, Epple repeatedly used the @yungcavage account to cruelly insult classmates.
The court’s findings detailed some of Epple’s posts, which included:
- Immature posts mocking a student’s braces, glasses and weight.
- a screenshot of the texts in which Epple and a black classmate were arguing, and he added the caption: “Monday, I’m about to bring rope to school.”
- a screenshot of a black student’s Instagram post in which she declared “I want to go back to the old way” combined with a second photo of the historic drawing that appears to depict a slave master driving a black naked, which is tied with rope around his hands. statement and the words, “Are you really like that?”
- a photograph in which a black member of the girls’ basketball team stood next to the team’s coach, who was also black, with a noose drawn around his neck along with the caption “twinning is winning”.
- Images depicting, or making light of, Ku Klux Klan violence against blacks.
- a historic photograph of a lynched man still hanging from a tree
- a member of the White Hooded Clan.
- pictures of a noose, a white hood, a lit torch, and a black doll, with the caption “Ku Klux Starter Pack.”
Some of Epple’s posts were particularly problematic as they sparked a series of exchanges in the comments. One such post showed an image of a black student sitting in class, captioned with the statement, “The gorilla exhibit is beautiful today.” Another related post included side-by-side images of a black female classmate and a gorilla.
In these posts, Chen commented from his account “@kkkevinkkkkk”, that, “It’s very good.”
One of @yuncavage’s followers replied to Chen’s comment, “Hey not funny”, “Shoot” and “Delete this”.
Chen responded to these comments with another comment saying: “No fuck you son of a bitch dirty zookeeper.”
Another of Epple’s posts featured the backs of two black students’ heads as they sat in class, along with the comment: “Dirty ass diaper.” A third asked followers: “Who the hell is this? [N-word],” after a black student asked to follow the @yungcavage account. In his post, Epple expressed the racial slur in uncensored form.
Chen, as @kkkevinkkkkk, responded to each post with a “like”.
Word of the posts quickly spread throughout the school and sparked 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 school days. Many students reported to the administration that they were too bored to go to class. One student even withdrew from school altogether.
The school administration responded with various types of discipline and eventually expelled Epple and Chen.
Both students sued, claiming 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 latest case “Fuck school fuck softball fuck fuck fuck everything,” 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 cheerleaders. The judges found that although her speech had been vulgar, the teenager had a right to criticize her school, especially given that the speech had taken place off campus and did not endanger the safety of her classmates.
However, the 9th Circuit, as had been the district court before it, was clear that Epple and Chen’s conduct fell far short of the cheerleaders’ protected comments.
A three-judge panel that included a US district judge Daniel Collinsor Donald Trump appointed; US District Judge Ronald Gouldor Bill Clinton appointed; and Senior US District Judge Roslyn Silver, another Clinton appointee, by appointment from the District of Arizona; ruled that the likelihood of “substantial disruption or material interference with school activities” in the case was “apparent” and that the district was within its rights to expel the two students.
Collins wrote the opinion for the unanimous panel, which noted that the posts created havoc at the school. “Even students who weren’t targeted by the posts were upset and were among a group who spontaneously huddled together, crying and screaming” 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 because they could be defended as “political ideology.” Collins wrote that since Epple admitted he posted just to “entertain [his] friends,” any claim that they sought to make a political statement “rings hollow.”
Similarly, the panel rejected Epple’s argument that his posts were meant to be private and circulated only among a small select group of followers.
Collins wrote that he called the posts “a time bomb of vicious targeted abuse that could easily be 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 different 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 egging a bully who torments classmates,” Collins reasoned.
Gould wrote an agreement that called for the need to “improve on the Supreme Court’s prior guidance” in the area of students’ free speech and hate speech rights.
“School boards have the appropriate power to discipline perpetrators of hate speech,” Gould wrote, noting, “The First Amendment and Supreme Court precedent do not require courts to always strike down a governmental entity’s efforts to prevent harm of their citizens – especially in the context of hate speech in schools that harms children.”
Gould discussed the special place that schools have in society and the need for schools to have the authority to eradicate violence at its core.
“Hate speech has no role in our society and contributes little or nothing to the free marketplace of ideas that is essential to protect in a school setting,” Gould wrote. “When school authorities take action to eradicate the persistent echoes of racism that arise from time to time in American society, the courts should not prohibit them, but rather allow the racist comments to be eradicated and not be deemed protected by the 1st Amendment. First.
Gould argued that racially based hate speech is inherently dangerous in that it “dehumanizes[s] African American students” and threatens violence, harassment and bullying. Gould continued, invoking the Supreme Court justice Clarence Thomas for his dissent in 2003 Virginia v. Black, who supported a state law banning cross burnings. Instead of focusing on the conduct that might accompany the speech (as Thomas would have done), Gould asked SCOTUS to readjust its analysis. Gould suggested that the Court think of hate speech as himself harmful and possibly modifying Brandenburg test to require only a “possible and developing threat of violence,” rather than the current standard of “imminent unlawful acts.”
Counsel for the parties did not immediately respond to a request for comment.
[screengrab via YouTube/WKPIX]
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