From Chen v Albany Unified School Dist., decided today by the Ninth Circuit, in an opinion by Judge Daniel Collins, joined by Judge Ronald Gould and District Judge Roslyn Silver; the opinion is long, so I'll try to excerpt it briefly here, but you can read the whole thing for yourselves (I'll also put up a separate post shortly about Judge Gould's concurring opinion):
This case concerns a public high school's ability under the First Amendment to discipline students for assertedly "private" off-campus social media posts that, once they predictably made their way on to campus, amounted to "severe bullying or harassment targeting particular" classmates. Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy (2021). We hold that, under the circumstances of this case, the school properly disciplined two of the involved students for bullying….
In November 2016, at the suggestion of a friend, [plaintiff] Epple created a private Instagram account to share comments "privately with my small group of friends." Unlike Epple's "'main' Instagram account," which he used to "share images that are appropriate for a wide audience," he intended this new account, which operated under the username "yungcavage," to be "a private forum where [he] could share funny memes, images, and comments with [his] close friends that [they] thought were funny, but which other people might not find funny or appropriate." Epple attempted to keep the account "very private," rejecting several requests to follow the account and only approving requests to "follow" the account from "close friends" that he thought he "could trust to keep the material private." Over the ensuing months, Epple only allowed about "13 people to follow the account," including [plaintiff] Chen. He "never intended any person outside [his] close group of friends to see the images [he] posted to the account." Chen "followed" the account using the Instagram username "kkkevinkkkkk." Chen likewise understood that Epple's second Instagram account was to "be a private forum (by invite only), exclusive to [their] friends, and a place where [they] could share sarcasm, jokes, funny images, and other banter privately." Not all of the persons who eventually followed the account knew who the owner of the account was.
