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Barred from Participating in Public High School Graduation for Using “Nigger” in a Tweet?

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From Castro v. City of Clovis, decided Friday by Judge Dale A. Drozd (E.D. Cal.):

… On June 13, 2019, plaintiff filed this action, alleging violations of his rights to free speech and due process. According to the complaint, plaintiff is a former Clovis High School student who recently turned 18 and finished high school. Plaintiff was scheduled to attend his graduation ceremony on May 30, 2019, when his school “revok[ed] his VIP sitting privilege in the graduation ceremony, remov[ed] him off the school premises, and enjoin[ed] him from participating in his long-awaited graduation ceremony that was by then only 3 hours away,” allegedly as punishment for a tweet that he had posted on Twitter. In that tweet, sent to a Nigerian friend on an unidentified date before his graduation, plaintiff used the words “nigga” and “nigger,” apparently with his friend’s consent and as a form of “intercultural communication.” Another Twitter user saw the tweet and reported it to the school, which, in addition to barring plaintiff from attending his graduation, “order[ed] him to delete the alleged offensive message from his [T]witter account[.]” …

Castro sued on various theories, but the one that survived the motion to dismiss (and the one I’m interested in here) was the claim that the school’s actions violated his free speech rights; and, surprisingly, the defendants’ entire argument as to free speech was,

In his first cause of action, Plaintiff alleges that Defendants violated Plaintiff’s right to Freedom of Speech under the First Amendment of the United States Constitution because Defendants disciplined plaintiff for using language that is almost universally considered to be profane in nature. Although the First Amendment of the United States Constitution guarantees broad speech liberties to persons residing within the United States, it is not without limit. Of note, certain speech activities of pupils at public schools may be limited. The California Education Code § 48907(a) states that “Pupils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous.” (Emphasis added.)

In this case, Plaintiff used the word “nigga” and “nigger” which was seen by someone who took offense to the use of Plaintiff s choice of words. So much so, that this (unidentified) person reported Plaintiff s speech activities to Defendants. As noted in California Education Code § 48907(a), pupils of California schools do not have the right to expression which is obscene, libelous, or slanderous. As the words “nigga” and “nigger” are universally considered obscene, Plaintiff does not have Constitutional protection for this expression. Because Plaintiff does not have any First Amendment protection for said obscene language, his First Amendment Right related to this particular expression cannot be violated.

But, as the court points out, this reflects a misunderstanding of what “obscene” means in First Amendment law.

Defendants argue that plaintiff’s free speech claims must fail because the terms “nigga” and “nigger” are obscene and therefore not protected speech. It is true that courts “have long held that obscene speech—sexually explicit material that violates fundamental notions of decency—is not protected by the First Amendment.” However, as plaintiff points out, the terms “nigga” and “nigger,” while offensive to many, are facially not sexually explicit and, thus, cannot be considered obscene under the framework set forth by the U.S. Supreme Court. Thus, defendants’ motion to dismiss on the basis that plaintiff’s tweets are obscene speech not protected by the First Amendment will be denied.

(The California Legislature could define “obscene” differently in in its statute if it wanted, but there’s no indication that it aimed to use a different definition—and in any event, the plaintiff’s claim is that the school’s actions violate the First Amendment, not the state statute.)

I think that the school’s actions (if plaintiff’s factual account is correct) did violate the First Amendment, and couldn’t be upheld on any theory. It’s true that Castro wasn’t expelled from school, or otherwise shortchanged as to his academic activities; but being denied the right to participate in an important public school ceremony—a right that all your classmates have—because of the exercise of one’s free speech rights would itself violate the First Amendment. (The logic of Lee v. Weisman, the graduation prayer case, strongly supports that conclusion, though I think the result would be the same even had the dissent prevailed there.) But in any event, the “obscenity” theory is a nonstarter.

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Eugene Volokh

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