Students lose appeal in case over racist Instagram posts

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Families of Albany High School students gather after racist Instagram posts were discovered circulating on campus.

Two students who sued their California high school after they were expelled for creating and ‘liking’ racist Instagram posts can’t fall back on free-speech arguments and it’s not a closed matter, a lawmaker has ruled. federal appeals court.

A unanimous panel of the United States Court of Appeals for the 9th Circuit has ruled that posts comparing black students to gorillas and using lynching images are “obviously” not protected by the First Amendment.

Cedric Epple and Kevin Chen were students at Albany High School when Epple created a private Instagram account username “@yungcavage” in an effort to share “funny memes” with a small audience of close friends that “of other people might not find it funny or appropriate”. “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 messages, including:

immature posts mocking a student’s braces, glasses, and weight. a screenshot of texts in which Epple and a black classmate were arguing, and he added the caption, “Holy shit, I’m about to bring my rope to school on Monday.” a screenshot of an Instagram post by black students in which she said “I want to go back to old” combined with a second historical drawing photo that appears to depict a slave master paddling a naked black man who is suspended by a rope around his hands. the statement and the words, “Do you really what?” a photograph in which a black member of the women’s basketball team stood next to the team’s coach, who was also black, with nooses around both of their necks with the caption “the pairing, it is to win”. images depicting or shedding light on Ku Klux Klan violence against black people. a historic photograph of a lynched man still hanging from a tree a Klansman in a white balaclava. images of a noose, a white balaclava, a lit torch and a black doll, with the caption “Ku klux starter pack”.

Some of Epple’s posts were particularly problematic in that they prompted 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 classmate and a gorilla.

On those posts, Chen commented from his “@kkkevinkkkkkk” account that “it’s so good.”

One of @yuncavage’s followers replied to Chen’s comment: “Hey not funny”, “Fuck you”, and “Delete that”.

Chen responded to those comments with another comment stating, “No, fuck off, you son of a bitch zookeeper.”

Another of Epple’s posts featured the backs of two black students’ heads as they sat in class, along with the comment, “Damn ass shit.” A third asked his followers, “Who the fuck is that? [N-word]after a black student asked to follow the @yungcavage account. In his message, Epple stated the racial slur in an uncensored form.

Chen, as @kkkevinkkkkkk, replied to every post with a “like”.

News of the messages 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 days of school. Many students reported to the administration that they were too upset to go to class. One student even dropped out of school altogether.

The school administration responded with various types of discipline and eventually expelled Epple and Chen.

The two students filed a lawsuit, claiming the expulsion was a violation of their free speech rights under the First Amendment and California law. Their lawsuit argued that the Instagram posts had been private and that, like the cheerleader in the recent “Fuck school fuck softball fuck cheer fuck everything” case, they should be allowed to speak freely in an off-campus setting.

In 2021, the Supreme Court ruled 8 to 1 in favor of the cheerleader. The judges concluded that even if her speech was vulgar, the teenager had the right to criticize her school, especially since the speech took place off campus and did not risk the safety of her classmates.

However, the 9th Circuit, like the district court before it, was clear that Epple and Chen’s conduct fell far short of the cheerleader’s protected comments.

A three-judge panel that included U.S. Circuit Judge Daniel Collins, appointed by Donald Trump; US Circuit Judge Ronald Gould, appointed by Bill Clinton; and Senior U.S. District Judge Roslyn Silver, another Clinton appointee serving by designate from the District of Arizona; ruled that the likelihood of “substantial disruption or material interference with school activities” in the case was “obvious” and that the district was well within its rights to expel the two students.

Collins wrote the opinion of the unanimous panel, which noted that the posts had created havoc at the school. “Even the students who weren’t targeted by the messages were distraught and part of a group that spontaneously gathered, ‘crying and screaming’ and ‘too upset to go to class,'” Collins noted.

The panel cut short of any argument that Epple’s posts should not have been ‘censored’ by the school because they could be protected as ‘political ideology’. Collins wrote that since Epple admitted he had posted simply to “entertain [his] friends,” any claim that they sought to make a political statement “rings hollow.”

Likewise, 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 the posts were “a ticking time bomb of vicious targeted abuse that could be easily set off by anyone following the account”, and said Eple should have expected the school to fight back with discipline.

As for Chen, the panel acknowledged that his involvement was separate from that of Epple. However, the three judges ruled that Chen’s likes and comments were still enough to warrant his expulsion.

“At the very least, Chen looks like a college student who goes after a bully who torments his classmates,” Collins explained.

Gould drafted an agreement that called for the need to “refine advance Supreme Court directives” in the area of ​​student free speech rights and hate speech.

“School boards have the power to sanction perpetrators of hate speech,” Gould wrote, noting that “the First Amendment and Supreme Court precedent do not always require courts to strike down attempts by government entities to to prevent harm to their citizens, especially in the context of hate speech in schools that harms children.

Gould discussed the special place schools hold in society and the need for schools to have the power to stamp out violence at its heart.

“Hate speech has no role in our society and contributes little or nothing to the free market of ideas that is essential to protect in a school environment,” Gould wrote. “When school officials take steps to root out the lingering echoes of racism that arise from time to time in American society, the courts should not stop them, but rather allow the racist comments to be rooted out and not considered protected by the first amendment.”

Gould argued that race-based hate speech is inherently dangerous in that it “dehumanizes[s] African-American students,” and threats of violence, intimidation, and harassment. Gould went on to appeal Supreme Court Justice Clarence Thomas for his dissent in Virginia v. Black of 2003, which upheld a state law prohibiting the burning of crosses. Instead of focusing on the conduct that might accompany the speech (as Thomas would have done), Gould urged SCOTUS to reorganize his analysis. Gould suggested that the Court consider hate speech itself to be harmful and perhaps modify the Brandenburg test to require only a “probable and emerging threat of violence”, instead of the current standard of ” impending anarchic action”.

Lawyers for the parties did not immediately respond to request for comment.

[screengrab via YouTube/WKPIX]

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