A senior at Livingston Manor High School posted a picture of himself lying on the ground next to a car with another student kneeling on his neck, giving the thumbs up. The picture was taken off school grounds and outside school hours. It did not go over well.

The context of the picture is significant: The day Leroy and his friends took and posted the picture, a jury had just begun to deliberate in the highly publicized trial of Derek Chauvin, a Minnesota police officer, for the murder of George Floyd. The picture is undeniably reminiscent of footage of Chauvin next to a police car kneeling on George Floyd’s neck, killing him. The other students involved in the picture—the student who took the picture (Student B) and the student posing with his knee on Leroy’s neck (Student A)—both acknowledge this resemblance, and Student A testified the resemblance was intentional.

The school punished Leroy, asserting that the image, which Leroy left up for about seven minutes but was captured by another student and left up for about seven months, cause substantial disruption.

Leroy was disciplined by his school after he took a picture with his friends and posted it on social media while outside of his school campus and after school hours. He thought his post, which showed a picture of his friend kneeling on his neck with the caption “Cops got another,” was a joke, but he quickly realized others viewed it as an insensitive comment on the murder of George Floyd. He removed his post after a few minutes, but not before another student took a screenshot, which she reposted on other social media platforms…. After public outcry, in-school discussions, student demonstrations and a school investigation, the school superintendent suspended Leroy and barred him from participating in various school activities for the remainder of the school year.

The Second Circuit, by Judge Barrington Parker, held that the punishment violated Leroy’s First Amendment rights.

The District argues that “[s]ocial media has changed the boundaries of the schoolhouse gates.” We are cognizant that speech on social media is inherently different than private speech. A post on social media speaks to a much larger audience than a remark to a private or limited audience. It therefore carries both a greater risk of transmission to the school environment— and greater power to disrupt the school environment, including by harming other students.

But we cannot accept the contention that in today’s world, a social media post made off-campus is equivalent to speech on campus. That is because Mahanoy explicitly addresses social media and maintained a distinction between on- and off-campus speech, treating the social media posts at issue there as off-campus speech. For better or worse, social media is a primary method of communication for students today, and allowing schools to 16 regulate all speech on social media as though it were on-campus speech risks preventing students from “engag[ing] in that kind of speech at all.” The fact that social media “risk[s] transmission to the school itself,” does not automatically bring it within the bounds of the school’s regulatory authority.

Social media notwithstanding, the court refused to use social media to justify extending school control over student speech outside the schoolhouse gates. But the concurring opinion of Judge Myrna Pérez raised a very different specter.

The common thread running through threats, bullying, and harassment—the types of off-campus speech that all generally agree must be regulable at least some of the time—is that they disrupt student learning by causing students to fear for their safety. While fear is not the only emotion that can disrupt learning, it is uniquely detrimental to students’ ability to learn, and it must be within schools’ power to protect both their students’ physical safety and their feelings of safety…..

Obviously, if students fear their classmates will hurt them, they will be less able to learn. But learning can also be disrupted if students believe their classmates will callously cheer on or condone their being harmed outside of their schools. Students come to school with all kinds of fears about how they and those they love could be harmed inside and outside of school—whether they fear 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.

Judge Pérez notes that a student’s fear for her physical safety, or the safety of those dear to her, can “inhibit their ability to learn.” And no doubt this is true. This position, however, raises numerous issues, from whether the claim of feeling unsafe is real or merely a facile means of silencing offensive or “incorrect” speech, to a third-party’s “fears” overriding the free speech rights of students beyond the schoolhouse gates.

Given the ubiquitous nature of social media, such concerns would swallow any rights a school-age person has to express an opinion that is controversial or disapproved by other students. Indeed, even if Leroy hadn’t posted the image on Snapchat for seven minutes, it didn’t mean someone else wouldn’t. And if it was an opinion spoken in private, it wouldn’t prevent another student from posting it on social media and attributing it to the student. Even worse, claiming it was spoken in private when it was never uttered at all, yet posted to social media and falsely attributed to another student.

Either lines get drawn or students’ free speech rights are subject to school regulation no matter when or where made. For those who value constitutional rights over safety, real or imagined, social media shouldn’t extend the school’s authority beyond the schoolhouse gates.