Judges skeptical that student's Holocaust post was disruptive

4 minute read

The view of a court room as seen from the judge's bench. REUTERS/Andrew Kelly

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  • Student joked about exterminating Jews in post made outside of school
  • Lower court tossed free speech claims, citing potential disruption
  • But appeals court judges said school's reaction was disruptive

(Reuters) - A U.S. appeals court panel sounded unconvinced on Wednesday that a Colorado high school student's anti-Semitic Snapchat post created sufficient disruption at his school to warrant his expulsion, in the latest case to test the limits of students' free speech rights.

During oral arguments, members of the three-judge 10th U.S. Circuit Court of Appeals panel said there was no evidence the offensive post, which the student made outside of school, caused any students to miss school or disrupted any classes at Cherry Creek High School, a public school in the Denver suburb Greenwood Village.

The student identified as C.G. posted a photo on Snapchat of his friends wearing World War Two-era military hats at a thrift store, with the caption "Me and the boys bout to exterminate the Jews," according to court filings. He removed the photo within hours and posted an apology, but was suspended and ultimately expelled.

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A Colorado federal judge dismissed C.G.'s lawsuit against the school in 2020, saying the potential for the post to cause disruptions on campus trumped his free-speech rights.

Jonathan Fero, a lawyer for the school, said on Wednesday that school officials were forced to act after several parents complained about the post to the school and local police.

“C.G. is the one who threw the rock in the pond that created the ripples,” Fero said.

But the judges suggested that the school's reaction to the incident, including holding a special assembly to discuss the post, created more disruption than the post itself.

“I’d argue that C.G. didn’t throw the rock into the school, and the school decided to throw the rock at itself,” Circuit Judge Carolyn McHugh responded.

Reuters listened to a livestream of the arguments.

The case is the first of its kind to reach a federal appeals court since the U.S. Supreme Court last year ruled in favor of a Pennsylvania teen who sued after a profanity-laced social media post got her banished from her high school's cheerleading squad.

That case focused on whether a 1969 Supreme Court decision in Tinker v. Des Moines Independent Community School District that let public schools punish student speech when it would "substantially disrupt" a school community extended to off-campus conduct.

The justices in an 8-1 ruling said it did, but only in limited circumstances such as incidents involving severe bullying and harassment or threats aimed at teachers or other students.

Many schools and educators have argued that their ability to curb bullying, threats, cheating and harassment — all frequently occurring online — should not be limited to school grounds.

On Wednesday, McHugh told C.G.'s lawyer, Jamie Hubbard, that his case was distinct from the Supreme Court case, which did not involve any violent language, because it included "an element of violence that caused fear."

Hubbard acknowledged the distinction, but said the school investigated the incident and determined that C.G. had not intended to threaten violence.

The judges suggested that there was not enough information to determine whether C.G.'s post amounted to harassment or threats, and that they could revive the case so the record could be further developed.

C.G. is backed by the American Civil Liberties Union, which appeared at Wednesday's arguments on his behalf. ACLU lawyer Vera Eidelman told the panel that extending Tinker to off-campus speech would make it more difficult to prepare children to live in a society where offensive speech is protected.

"It would put protests, op-eds and just the chance to be a kid at risk," she said.

The panel includes Circuit Judges Paul Kelly and Scott Matheson.

The case is C1.G v. Siegfried, 10th U.S. Circuit Court of Appeals, No. 20-1320.

For C1.G: Jamie Hubbard of Stimson Stancil LaBranche Hubbard

For the defendants: Jonathan Fero of Semple Farrington Everall & Case

For the ACLU: Vera Eidelman

Read more:

Cheerleader prevails at U.S. Supreme Court in free speech case

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.