As anticipated, the Ninth Circuit has waded back into the choppy waters of student online and off-campus speech following the U.S. Supreme Court’s June 2021 ruling in Mahanoy Area School District v. B.L and found that a school was justified in disciplining two students for their egregiously offensive online speech that targeted specific students.

The quick takeaway is that a school can discipline students for off-campus speech when there is a foreseeable risk of substantial disruption to school activity or threatened harm to the rights of others, but a school should be careful to undertake a case-by-case analysis and document its rationale for the discipline. While K-12 students do have limited First Amendment rights, these rights may be curtailed when the speech constitutes harassment or creates a hostile educational environment. Additionally, the court recognized that racist slurs directed to specific students are not the type of off-campus student speech the First Amendment protects.

When the Supreme Court gave disgruntled cheerleader B.L. a victory—finding that her one-year suspension from the cheerleading squad for her Saturday night Snapchat post violated her First Amendment rights—it left the door open that there would be different facts when a school could properly discipline students for online speech that occurred off campus. In Chen v. Albany School District, the 9^th Circuit recognized such a case and, in light of Mahanoy, reaffirmed the standard courts should apply in this circuit finding that two high school students’ off-campus bullying and harassing posts were not protected by the First Amendment.

Cedric Epple, a student in Northern California’s Albany High School, set up a private Instagram account, limiting followers to a small group of about 13 friends that Epple believed he could trust to keep the account and its content private. He did not intend anyone outside of the followers to see what was posted on the account and intended the site to a be place to “share funny memes, images and comments with close friends that [they] thought were funny, but which other people might not find funny or appropriate.” Epple’s posts, though, escalated from immature teasing to “vicious” posts that targeted specific Black classmates, using references to slavery and violence of the Ku Klux Klan, including lynching, as well as highly offensive racist insults. Kevin Chen actively followed Epple’s account as one of the trusted friends, liking particular posts and contributing his own racist content as comments. Not surprisingly, despite Epple’s intentions, the account did not remain private. Albany’s students, including students targeted in the posts, learned of the account and shared it with Albany’s administrators. Knowledge of the account and its contents rapidly spread throughout the high school, causing general upset and school-wide disruption, and additionally, specific trauma to the students targeted in the posts. Albany suspended both Epple and Chen and later expelled Epple.

Epple and Chen brought claims against the school district as well as administrators arguing both that the First Amendment protected their off-campus speech and the speech was beyond the bounds of the school district to regulate. The Ninth Circuit disagreed, first making it clear (without question) that had the speech occurred on campus, the school district could properly regulate it and discipline the students. The First Amendment does not allow students to make bullying and threatening speech directed toward individual students, particularly when the speech, contributes “nothing to the ‘marketplace of ideas.’”

The Ninth Circuit allowed the school’s regulation to continue off campus. Recognizing that the reach of a school to regulate speech off campus is more limited, it used the language of Mahanoy and the landmark Tinker v. Des Moines to make it clear that a school may act when there is a “’substantial disruption’ of a school activity or threatened harm to the rights of others.” It reaffirmed its earlier adopted three-factor test that examines the totality of the circumstances to see whether speech that occurs off campus bears a sufficient nexus to the school to allow regulation. The Ninth Circuit found a nexus in this case finding that, although Epple intended the posts to be private, it was foreseeable—given the ease of sharing electronic information—that the posts would not remain private and would “ultimately hit their targets with resulting significant impacts to those individual students and to the school as a whole.” In fact, the impact, once the posts became known within the high school, was substantial with students expressing fear and trauma, manifested with lower grades and decreased school attendance. The Ninth Circuit dismissed any concerns related to censorship given the vicious content and the context of the speech.

As schools continue to explore monitoring and regulating online off-campus speech, the Ninth Circuit has made it clear that schools maintain some authority to discipline students for speech occurring online when the impact starts to affect the school day. In fact, the Ninth Circuit suggested and recognized that had Albany HS not responded as it did to the vicious posts, it could have faced potential liability had it not addressed the “racially hostile environment” and harassment of particular students once it learned of it. The First Amendment does not prevent a school from taking steps to properly protect students from mistreatment or harassing behavior.

Just as we advised when sharing news of Mahanoy, Albany confirms that facts continue to matter in First Amendment cases. Like the Supreme Court in Mahanoy, the Ninth Circuit in Albany took great effort to examine the particular facts in making its decision. Some facts are instructive:

• While the Ninth Circuit noted the student’s intention to keep the Instagram account private, it pointed out the ease of copying and forwarding online information and that it was foreseeable that the account would not remain private. The significant disruptions on campus after the account was divulged overshadowed any attempts at privacy.
• The cheerleader in Mahanoy did not identify or target any particular individuals; rather, her post was a rant of her personal frustration with the school (which was not identified). In Albany, the posts identified and targeted specific students who then were impacted once they learned of the posts. This specific targeting with “vicious invective with racist and violent themes” against identifiable individuals in the school dramatically increased the foreseeable likelihood of harm both to these individuals and to the school community.
• Not only was Epple, the Instagram account holder, punished, but Chen, one of its followers, was as well. The Ninth Circuit recognized that Chen was less involved than Epple, but likened his participation as “a student who eggs on a bully who torments classmates.” Chen was not a passive follower of the site, but he was an “affirmative participant.” Targeted students shared that the knowledge of additional classmates actively participating in the site “exacerbated” the impact of the abusive posts.
• While students have increased free speech rights off campus, and schools should refrain from censoring unpopular, even distasteful speech, Epple’s posts were not an ideological message that the First Amendment could protect when off campus. Epple argued that his posts were “juvenile and offensive” attempts at humor designed for entertaining his friends. That said, the Ninth Circuit found that in the secondary school environment, the language was particularly intolerable and harassing of students.

Speech on and off campus continues to be an area where the permissible contours of schools’ regulation are forming. We will watch cases as they develop and keep our clients informed as guideposts develop. Despite this ruling, schools should exercise thoughtful judgment when disciplining student speech that occurs off campus.

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