Free Speech

So holds the Second Circuit: "Tying a student speaker's constitutional right to free expression solely to the reaction that speech garners from upset or angry listeners cannot be squared with [First Amendment] principles."

Eugene Volokh | 10.30.2025 11:58 AM

From Leroy v. Livingston Manor Central School District, decided today by Judge Barrington Parker joined by Judge Beth Robinson (disclosure: I argued in the case on behalf of amici Center for Individual Rights and myself):

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 court concluded that Leroy's speech was protected against discipline by the First Amendment; here's a short excerpt from the long majority opinion:

[T]he school's decision to punish Leroy was motivated, at least in part, by the fact that "the perception of those images, what it depicts, is racist in nature," and the hope that "from this experience … [Leroy] has learned some valuable lessons that will serve him better down the road." …

But as in Mahanoy Area School Dist. v. B.L. (2021), the strength of the school's interest in preventing certain kinds of speech—there, vulgarity, and here, racially insensitive speech—"is weakened considerably by the fact that [Leroy] spoke........

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