Offensive speech has rights too, judge rules

During his senior year of high school, Case Leroy opened Snapchat and shared a photo of his friends kneeling on his neck with the caption “cops got another.” It was April 2021, during the trial for Minneapolis police officer Derek Chauvin, who was later found guilty of murder in George Floyd’s death.

At Leroy’s school, Livingston Manor High School in New York, parents and classmates viewed the photo as an insensitive depiction of Floyd’s 2020 death. They were outraged.

Though Leroy posted the photo off school grounds and after hours, the public reaction prompted the Livingston Manor Central School District to suspend the senior. School officials barred him from nearly all school activities for the remainder of his senior year. He fought back in a lawsuit, arguing the school’s punishment infringed on his free speech rights.

On Thursday, the 2nd U.S. Circuit Court of Appeals sided with Leroy. A three-judge panel ruled that public schools can’t discipline students even if the speech is viewed as offensive.

“If schools can regulate off-campus expression because it upsets other students, they are effectively authorized to prohibit students from expressing unpopular views—in or out of school,” Circuit Judge Barrington Parker said in the majority opinion. “The ability to engage in civil discourse with those with whom we disagree is an essential feature of a liberal education. Teaching students that they can and should be sheltered from speech that offends them is not.”

The 2nd Circuit’s majority opinion was a win for free speech rights in public schools. Still, some constitutional law experts warn that a concurring opinion from the court raised a potentially troubling precedent that could complicate future free speech cases.

According to the lawsuit, Leroy received “threat messages” within minutes of posting the controversial photo. Leroy said that, at first, he didn’t know the image had a resemblance to the moment Chauvin knelt on Floyd’s neck and killed him. When Leroy saw that one of his friends, who was also in the photo, shared it with the Black Lives Matter logo, he realized the similarities. He took the photo down only seven minutes after posting it.

But other students had already screenshot and reshared his post. Parents and community members emailed school officials nearly two dozen times about the students in the image. Some called their actions racist, others said it made students feel unsafe, and many called for disciplinary action.

The incident prompted some Livingston Manor teachers to conduct in-class discussions with students, and the school held an assembly for students in grades seven to 12 to address the issue.

The school district ultimately charged Leroy with violations of the district’s code of conduct for “posting racially offensive material on social media” causing “a substantial disruption to the school environment.”

The district suspended Leroy through May 21, 2021, and barred him from participating in all extracurricular activities for the remainder of the school year, including football, baseball, the senior class trip, the senior breakfast, prom, and graduation. After Leroy agreed to participate in “recommended restorative justice, diversity, equity, and inclusivity training opportunities,” officials allowed him to return to school early on May 10.

In June 2021, Leroy sued the school district, and the New York State Supreme Court granted him temporary relief, allowing him to attend his high school graduation.

Leroy then moved the case to the Southern District of New York, where the court sided with the school in 2024. It found that the school’s actions did not violate the First Amendment as the speech fell “outside of the First Amendment’s ordinary protection” due to the “substantial disruption” Leroy’s posts caused.

He appealed a few months later, and last week, the 2nd Circuit overturned the lower court’s ruling. Judge Parker said the First Amendment protects Leroy’s speech because he didn’t post threatening words and he posted the photos outside of school grounds and hours.

Parker added that Leroy wasn’t solely to blame for the “disturbance” his post caused. Responses from other students, parents, and school officials exacerbated the incident, he said. But even then, these disruptions did not rise to a level that gave “the school the authority to punish off-campus, otherwise protected speech that is only indirectly related to the school environment,” Parker said.

The ruling emphasizes that schools aren’t a 24/7 board of censors over students, said Conor Fitzpatrick, an attorney at the Foundation for Individual Rights and Expression, which filed an amicus brief in support of Leroy. If a student expresses his view on the news of the day, he has the same speech rights as anyone else, Fitzpatrick said.

“The First Amendment is there to protect unpopular speech,” Fitzpatrick said. “And it simply cannot be the case that if someone’s opinion upsets enough people, that is enough to take away First Amendment protection.”

Leroy’s case extends the precedents established in the 2021 Supreme Court case over what was dubbed the “potty-mouthed cheerleader,” said Ilya Shapiro, the director of constitutional studies at the Manhattan Institute, which also filed an amicus brief for Leroy.

The 2021 case, Mahanoy Area School District v. B.L., involved a Pennsylvania school district that suspended a student from the cheerleading team after she posted vulgar language and gestures that criticized the school. The high court said her off-campus speech was the responsibility of her parents—not the school—to discipline.

“The standard is [that] students have full speech and expression rights unless they’re disrupting educational programming,” Shapiro said. “The students [here] were not disrupting class or anything else.”

But Shapiro noted that the concurring opinion in Leroy’s case contains unexpected reasoning that could hurt student speech rights. Circuit Judge Myrna Pérez wrote in her concurrence that she believes schools should be able to punish off-campus speech where the speaker has a mental state that is “reckless” and causes students to feel unsafe. Though she found that Leroy’s speech wasn’t reckless, she listed a wide range of speech that she said could meet this standard.

Pérez said speech on “police brutality, forcible family separation by immigration authorities, religiously-motivated attacks on their houses of worship, sexual or gender-based violence, or any other type of targeted state or private violence” could cause students to be afraid of their classmates. This then gives schools a compelling interest to regulate student speech, off or on campus, she wrote.

If courts follow Pérez’s opinion, that would chill speech, Shapiro said.

Pérez’s opinion could be applied in a number of concerning ways, said Eugene Volokh, a professor at UCLA School of Law who also wrote an amicus brief for Leroy. The standard would allow a school to punish a student for praising the deportation of illegal immigrants if some classmates felt fearful as a result. Or it could sanction disciplining someone who cheered or condoned the murder of Charlie Kirk, as another student might be concerned that such violence could happen to their family.

“That can’t be right,” Volokh said. “That’s why I think the majority’s view is more sound than the concurrences. [Pérez’s opinion] seems like a very broad standard to set for speech.”