The Second Circuit Clarifies Student Free Speech Rights Involving Social Media and Off Campus Conduct

The relationship between social media, discipline, and student free speech rights continues to evolve. The Supreme Court has noted that, “in light of the special characteristics of the school environment,” a school has the right to place some limits on students’ speech beyond those that would be permissible outside of the school context. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969). In Tinker, the Court explained that otherwise constitutionally protected student speech/expression may be limited where it materially disrupts classwork, results in substantial disorder or invades the rights of others. Determining when a school district may discipline a student for off campus conduct is not easy, particularly where a student’s speech is at issue.

In the recent case of Leroy v. Livingston Manor Central School District, 158 F.4th 414 (2025), a school district was found to have overstepped its authority when it disciplined a student for a racially insensitive social media post. The post was a photo of student, with a friend kneeling on his neck, next to the words “Cops got another.” The photo was taken off campus and after school hours. The photo reminded those who saw it of the murder of George Floyd. The post, which was on the student’s social media for a short time, took on a life of its own when another student took a screenshot and it was reposted elsewhere throughout the school community. The district was then subject to public outcry. The school district suspended the student for the remainder of the school year. The family of the student challenged the discipline as a violation of student’s right to free speech.

The Second Circuit, in considering the matter, clarified the school district’s authority related to off campus student speech. The Court examined three factors: the nature of the speech; when, where and how the student spoke; and the school’s interest in regulating the speech. In considering the first factor, the Court noted that the student’s post did not contain a threat. Although some students expressed that they felt unsafe at school following the incident, the Court noted that the school cannot, and should not, protect the school community from being exposed to speech they find offensive. Second, the Court considered that the incident occurred off campus and after school hours; it observed that the school was not standing in the place of the parent as it does during the school day. Further, the student did not identify the school, did not target a particular student at the school, and transmitted his message through a personal cellphone. Third, the Court reasoned that the school’s interest in regulating the speech was not sufficient to warrant the school district’s actions. The Court reasoned that the disruption caused by the student’s speech, a 15–20-minute school wide assembly, a nine-minute demonstration by several students, and some classroom discussions, was not sufficiently substantial to outweigh the student’s free speech rights and to justify regulating the speech. The Court further noted that the school had an interest in teaching students they cannot and should not be sheltered from offensive speech or unpopular viewpoints, even though they have an interest in fostering racial sensitivity.

The court acknowledged the inability to create a bright line rule, making it more difficult for school districts and administrators to determine when discipline is warranted or permissible. Each situation will need to be examined based upon its own unique facts and application of guidance provided by the courts. Public outcry and community sentiment do not shape the contours of First Amendment free speech rights. Please do not hesitate to contact us for training related to student discipline or guidance relating to free speech considerations.