Another off-campus free speech case…..

At home on a Friday night, H.K. set up a fake Instagram account that appeared to belong to his biology teacher. The account was, at first, “benign” according to the court. But when H.K. told his two buddies about it as they played online games late at night, things escalated. H.K. gave his friends access to the account and they posted pictures and words that were vulgar, threatening, sexually inappropriate, and harassing. Moreover, they targeted an English teacher, a coach, and a student along with the biology teacher. The court’s opinion never tells us what happened to the other two students, but here’s what we know about H.K.’s involvement:

He set up the fake account. He gave his friends access to it. He monitored it and knew what they were posting. He joked with his friends about it and chose not to delete the posts when he could have. He accepted requests from 18 others to follow the account.

This did not last long. By Monday morning the biology teacher was aware of the account. He asked the principal for help. The principal launched an investigation and quickly identified the three boys who were responsible. Meanwhile, H.K. deleted the entire account during his lunch break.

The principal immediately suspended H.K. for five days, but after completing her investigation, she recommended expulsion. The superintendent conducted a hearing and chose to go with a lighter penalty—a ten day suspension. Still, that was enough to provoke H.K’s father to sue the district, the superintendent and the principal, claiming that the school was infringing on his son’s First Amendment rights.

Nope. The 6th Circuit had little trouble distinguishing this case from the Case of the Foul-Mouthed Cheerleader decided by the Supreme Court last year. That case (Mahanoy Area School District v. B.L.) involved off-campus F-bombs on Snapchat in a brief teenage temper tantrum. The Foul-Mouthed Cheerleader did not threaten or harass anyone and only made vague accusations of poor judgment by the cheerleading coaches. In contrast, H.K’s fake Instagram account “involves serious or severe harassment of three teachers and a Freeland student.”

What about the fact that H.K. did not actually write or post the more troublesome content? The court put it this way:

Like the First, Fourth, and Ninth Circuits, we hold that when a student causes, contributes to, or affirmatively participates in harmful speech, the student bears responsibility for the harmful speech. And because H.K. contributed to the harmful speech by creating the Instagram account, granting [the other two boys] access to the account, joking with [the other two] about their posts, and accepting followers, he bears responsibility for the speech related to the Instagram account.

It's Kutchinski v. Freeland Community School District, decided by the 6th Circuit on June 2, 2023. It’s cited at 69 F.4th 350.


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