A free speech case involving a student expelled by Cherry Creek High School in Greenwood Village, Colorado, for an antisemitic Snapchat post was reinstated last week by the U.S. Court of Appeals for the 10th Circuit in Denver.
According to court documents in C1.G. v. Siegfried, the expelled student, referred to as C.G., was at a thrift store with friends in fall 2019 when one of the group tried on a hat resembling a foreign World War II military hat. A post made to Snapchat by C.G. featuring a photo of the friend wearing the hat read, “Me and the boys bout [sic] to exterminate the Jews.”
Though C.G. later deleted the post and apologized, saying it was intended as a joke, a screenshot taken by another student circulated around the school community. C.G. was ultimately suspended based on a policy around “behavior on or off school property which is detrimental to the welfare, safety or morals of other students or school personnel.”
His family eventually filed suit against officials at the high school and at Cherry Creek School District, alleging violations of free speech under the First Amendment and due process under the 14th Amendment. They had previously submitted a letter to the district reiterating C.G.’s remorse for the post and highlighting time he had since spent educating himself.
The three-judge panel’s unanimous decision to revive C1.G. v. Siegfried is based on the U.S. Supreme Court’s 8-1 subsequent ruling in Mahanoy Area School District v. B.L in June 2021. In that case, the Supreme Court ruled that a Pennsylvania high school violated a student’s First Amendment rights when it disciplined her for saying in a Snapchat post to peers, “F--- school, f--- softball, f--- cheer, f--- everything,” following her rejection from the school’s varsity cheerleading team.
Under that decision, schools must show that off-campus speech created a substantial disruption or would be likely do so. According to 10th Circuit Judges Paul Kelly, Carolyn McHugh and Scott Matheson, Cherry Creek officials had not demonstrated that.
Though C1.G. v. Siegfried has been reinstated, the appeals court also suggested school officials may not be personally liable in the case given that the Supreme Court hadn’t clarified law around school authority over off-campus speech at the time of the incident.
The American Civil Liberties Union, ACLU of Colorado, Foundation for Individual Rights in Education, and Cato Institute are among organizations that filed amicus briefs in support of C.G.
“While the speech at issue here was hateful and asinine, the court’s approach to this case has affirmed the free speech rights of all young people in the 10th Circuit,” Vera Eidelman, staff attorney for the ACLU Speech, Privacy and Technology Project, said in a statement. “The court correctly recognized that schools cannot reflexively extend their in-school authority off campus. Otherwise, young people would never be fully free to explore ideas or exercise their voices — whether they are posting on Snapchat on a Friday night, attending a protest over the weekend, or writing an op-ed in their local newspaper.”