10th Circuit: Anti-Semitic Snapchat post protected by the First Amendment….

If the boys had been at the Friday night football game, maybe none of this would have happened. But they were not there. They were goofing off at a thrift store, taking pictures of themselves as they tried on costumes.  One picture showed the boys wearing hats that “resembled a foreign military hat from the WWII period.”  A student identified as C.G., soon to be known as “the Plaintiff,” posted this picture on his private story line on Snapchat with this caption:  “Me and the boys bout to exterminate the Jews.”

The public school expelled C.G. for this. The student sued the district, alleging that his free speech rights had been violated.  The federal district court did not see it that way. It upheld the district’s decision.  But then the U.S. Supreme Court decided the case of B.L. v. Mahanoy Area School District, known here on the Daily Dawg as The Case of the Foul Mouthed Cheerleader.  That case laid out some new guidelines for school officials when dealing with off-campus speech.  C.G. appealed his case to the 10th Circuit, relying heavily on The Case of the Foul Mouthed Cheerleader.  And he won.

The result is no surprise, especially in light of the Mahanoy case.  Here are four things worth noting about this case.

  1.  It wasn’t a “true threat.”  True threats are not constitutionally protected, but the court held that this sophomoric attempt at humor was not a true threat. The court noted that language amounts to a “true threat” only if is a serious expression of an intent to commit an act of unlawful violence to a particular individual or group.  The age of the students, and the context of the picture lacked that level of seriousness.  Moreover, the court pointed out that the student was allowed to return to school the following Monday.  So it didn’t look like the school took it as a genuine threat.
  2. Like Brandi, the Foul Mouthed Cheerleader, C.G. did this off campus on a weekend, using his own device and sending the Snap only to his friends.  He didn’t aim it at the school or at any individual in the school.
  3. The school cannot claim to be acting “in loco parentis” in these circumstances. The court noted that “That doctrine applies ‘where the children’s parents cannot protect, guide, and discipline them.’” 
  4. There just wasn’t enough evidence of a “substantial disruption.” The Snapchat post was widely circulated and covered by local media.  The principal testified that the educational environment had been “impacted.”  Maybe so, but the court pointed out that “impact” is not the same as “disruption.” Key Quote:

We cannot consider CCHS’s choice to discuss C.G.’s post during an advisory period (a schedule block twice a week implemented specifically for dealing with such matters) substantial disruption.  Neither can news reports nor four emails from parents be evidence of substantial disruption.  These facts fall short of “Tinker’s demanding standard.”

C.G. quickly regretted his Snapchat post.  Within hours of its posting he deleted it and apologized for it.  He said it was intended as a joke. After that, C.G. wrote a letter to the school accepting full responsibility for the post.  In the letter he noted that he had learned from the experience. He said that he had spent time learning about Jewish history and talked with Jewish members of the community.  

It’s important to note, however, that none of this factored into the court’s decision.  For the court, it was a simple matter of applying the standards we got from the Supreme Court in the Mahanoy case.  Of course there were people who were angry and even some who were frightened.  The Holocaust was not that long ago.  It’s understandable that in the eyes of Jewish people it would not be so easy to dismiss this as a stupid lapse in judgment by an ignorant adolescent.

The student’s remorse was not weighed as a factor by the court, but it should have been a factor for the school.  Discussing this at the advisory period was exactly the right thing to do. This incident presented a golden opportunity for a teachable moment.  How many of our students are as ignorant and insensitive about anti-Semitism as C.G. was? How many would think that a comment about exterminating Jewish people was just a joke?  We’ve all seen a nationwide rise in overt and blatant anti-Semitism.  This is why we have a Holocaust Remembrance Week built into the school calendar each year. Let’s take that seriously.

It’s C1.G v. Siegfried, decided by the 10th Circuit on July 6, 2022. It’s published at 2022 WL 2447526. 


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com