Cherry Creek student expelled for anti-Semitic Snapchat appeals lost free speech ruling

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GREENWOOD VILLAGE | A student expelled from Cherry Creek High School for posting an anti-Semitic comment on Snapchat is appealing a district court dismissal of his case against the district for violating his First-Amendment rights.

Legal experts believe the appeal could be successful, given a Supreme Court ruling over the summer that limited schools’ ability to regulate student speech that takes place off campus.

According to court documents, on a Friday evening in September of 2019 a Cherry Creek High School student referred to only as C.G. posted a picture to Snapchat of several friends in a thrift store wearing vintage hats. The hats resembled WWII-era military garb, and the post was captioned “Me and the boys bout to exterminate the Jews.”

C.G. deleted the post and offered an apology within several hours, the lawsuit said. A fellow student saw the post and told her father about it, who contacted the police and circulated it among members of the community. 

The police arrived to C.G.’s house and determined there was no threat, the lawsuit said. Another parent contacted the school about the post, expressing concern about antisemitism in the district and asking the school to use the incident to address hate speech in the community.

School officials initially suspended C.G. and ultimately expelled him for one year on the grounds that he violated school conduct and that the district could regulate “behavior on or off school property which is detrimental to the welfare, safety or morals of other students or school personnel,” according to the lawsuit.

C.G. and his parents sued the district in U.S. District Court in Colorado, alleging that his First Amendment rights had been violated. Last August the court dismissed the case, stating that the school had the legal grounds to discipline C.G. even though the post was not made during school or on school property, and did not explicitly mention any district students or staff. It also rejected the claim that C.G.’s due process rights were violated.

In September, C.G. and his parents submitted his case to the 10th Circuit Court of Appeals. The Colorado ACLU, the national ACLU, the Foundation for Individual Fights in Education and the Cato Institute all filed “friend of the court” briefs in his support.

“The ACLU brief concedes that the speech in question is undeniably offensive, but maintains that the detestable nature of the speech here cannot justify diminishing the First Amendment’s protections for young people,” the national ACLU said in a statement. “Outside of school-supervised settings, young people have the right to express themselves without being punished for their ideas, and other young people and adults have the right to hear what they have to say.”

In an email, Cherry Creek spokesperson Abbe Smith said, “The District prevailed in this matter involving First Amendment issues at the trial court level and we hope that the 10th Circuit will uphold that decision.”

Scott Levin, the director of the the Mountain States Anti-Defamation League, told the Sentinel that the ADL is “very much a pro-First Amendment organization” but that the post in question was demeaning to victims of the Holocaust and caused a lot of pain to the local Jewish community.

“Holocaust jokes are never appropriate, and unfortunately they are all too prevalent at this time,” Levin said. “We were hoping that when this came forward and was made public it could be a teachable moment for students and for others about the inappropriateness of Holocaust analogies.”

This is the first case regarding schools’ ability to regulate online speech that takes place off campus to reach federal appellate court since a Supreme Court ruling over the summer addressed the issue.

Mahoney v. B.L. involved a cheerleader at a Pennsylvania school who was suspended from the cheer squad for making a profane Snapchat post after she failed to make the varsity squad. The Supreme Court ruled that her First Amendment rights were violated, and that schools can only regulate off-campus student speech when there is a significant reason to do so.

Alan Chen, a Denver University law professor who specializes in First Amendment cases, told the Sentinel that the Supreme Court ruling was “definitely in favor” of the Cherry Creek student, which has a lot of similarities to Mahoney.

C.G.’s post was an offensive joke that under the First Amendment pretty clearly qualifies as protected speech, Chen said. The Supreme Court ruling said that the less a student’s off-campus speech is connected to school, the more their First Amendment rights are equivalent to that of an adult.

“Here, there’s absolutely no connection to the school whatsoever,” he said.

 

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Andy Miller
Andy Miller
22 days ago

I am a jew, and I find the comment offensive and damaging. However, removing free speech is definitely not the answer. Evil has to be seen and recognized for what it is. If it is censored, it will be invisible. We want evil thoughts and posts to be seen in our culture. Otherwise, we are powerless to see it and evaluate it for what it is.

Joe Felice
Joe Felice
22 days ago
Reply to  Andy Miller

I am not a Jew, and I find the post offensive and damaging. Your viewpoint on the comment’s exposure is interesting, however.

alex
alex
17 days ago
Reply to  Andy Miller

While I understand the issues this comment brings up, how it can be very offensive and damaging. I believe that what happened with this comment is that the individual referred to as C.G. was making a joke, however offensive it may be, with a group of friends and posting it because he believed it to be funny. He then realizes that it is offensive for whatever reason weather it be people messaging him and telling him to take it down or his own accord and he takes the post down issuing apology afterword’s to help remedy the situation even a little bit.

Joe Felice
Joe Felice
22 days ago

Generally, I would say that someone has the right to say anything, even if it is odious. The government has no right to sensor speech or activity unless they are illegal. I would consider the administration of a public-school district to be part of the “government.” However, in this case, the student appeared to the readers to be advocating violence and harm, and so therefore, he loses his constitutional protections, at least as previously adjudicated by the courts, for being akin to yelling “Fire!” in a theater.

Doug King
Doug King
22 days ago
Reply to  Joe Felice

unfortunately not in this case. Re read. He had a cap on. Posted it on social media. Then apologized for doing it. Maybe instead of all this litigation the litigators could have sent him to the Holocaust Museum to educate him? Would have been cheaper and certainly educational as well as less confrontational to all concerned??

Mike Hawk
Mike Hawk
13 days ago
Reply to  Doug King

Doug King your post was a waste of your first amendment please take it down.

Red Reaper
Red Reaper
11 days ago
Reply to  Doug King

I like your thinking. Don’t listen to Mike Hawk, he seems like a jerk.

Brent Wyler
Brent Wyler
16 days ago
Reply to  Joe Felice

That would be “censor” not “sensor” good sir

Brent G Taylor
Brent G Taylor
22 days ago

What exactly was taken from this young man for his actions? Attendance and participation in an organization (yes, a public one) — CCSD — for one year. Reasonable. He can still home school. He can still, if admitted, attend school elsewhere. But again, CCSD was setting an example, was protecting students, was counteracting bullying… actions have consequences. A good lesson for this young man, and those who follow the story.

Linc1865
Linc1865
19 days ago
Reply to  Brent G Taylor

Part of the problem is the school this student attends has sizable Jewish minority – many of whom felt threatened by the post.

Brent Wyler
Brent Wyler
16 days ago

my dog posted this on accident

Last edited 16 days ago by Brent Wyler
Ken
Ken
13 days ago
Reply to  Brent Wyler

Tell your dog he’s very cool

nua lagunta
nua lagunta
13 days ago
Reply to  Brent Wyler

your dog is very intellegent. may i wish you both a happy October.

Ken
Ken
13 days ago

I found this extremely informative

Mike Hawk
Mike Hawk
12 days ago
Reply to  Ken

no one asked, ken.

Mike Hawk
Mike Hawk
13 days ago

This article was very informative

Aubrey
Aubrey
8 days ago
Reply to  Mike Hawk

“no one asked”, Mike let’s not be a hypocrite here

Debra MacKillop
Debra MacKillop
12 days ago

I’m very familiar with Supreme Court cases discussed and do not think this case will be upheld on appeal. The facts are even more remote from being on school campus during school hours when speech in question happened. Once again, as in the recent SCT case, school officials did not seem to get good guidance before taking action.

Red Reaper
Red Reaper
11 days ago

Regardless if were a joke or not it is still offensive. Also can I point out that dark humor is supposed to be funny. That was no close to funny. If Dave Chappelle were to make racist or offensive joke that would be considered dark humor, or think about Jeff Dunhams Achmed, it would be funny. They would not say, ” I am going to exterminate the Jews”. That is a threat. Also look at todays time error, is anything taken as a joke anymore? I am not saying it is OK by any means. I am just saying 1) Don’t threaten someone 2) Don’t make dark jokes unless you know for a fact that most the population can take it as joke and will laugh 3) Also take in consideration that not every likes jokes like those.
Also they should not ban freedom of speech for this.

daryl Scheep
daryl Scheep
5 days ago

kids these days…