Off‑Campus Social Media Speech Is Protected Absent Safety-Based Threats: Reaction-Driven “Disruption” Alone Cannot Justify Discipline

Leroy v. Livingston Manor Central School District, No. 24-1241 (2d Cir. Oct. 30, 2025)

Introduction

This Second Circuit decision addresses a recurring question in the age of ubiquitous social media: When may a public school discipline a student for off-campus online speech that circulates back into the school community and provokes controversy? The case arises from a seven-minute Snapchat post by Case Leroy, a New York public high school senior, depicting a staged photo evocative of the murder of George Floyd with the caption “Cops got another.” The image was reposted by others, prompting public complaints, classroom discussions, an assembly, and a student demonstration. The superintendent suspended Leroy and excluded him from extracurricular activities for the rest of the school year. The district court upheld the discipline on “substantial disruption” grounds; the Second Circuit reversed.

Applying Tinker v. Des Moines and Mahanoy Area School District v. B.L., the court held that Leroy’s off-campus speech remained protected under the First Amendment. The decision carefully parses (1) the nature of the speech, (2) when, where, and how it occurred, and (3) the school’s asserted interests. It draws a critical line: schools may sometimes regulate off-campus student speech that threatens students’ sense of safety—even if it is not a prosecutable “true threat”—but they may not punish off-campus speech simply because it is offensive or because it provokes a community reaction that administrators manage with schoolwide programming. A separate concurrence would go further, proposing that schools should be able to punish off-campus speech that reasonably instills fear and materially impairs learning if the speaker acted at least recklessly as to that risk.

Summary of the Opinion

• The Second Circuit reversed summary judgment for the school district and superintendent, holding that disciplining Leroy for his off-campus social media post violated the First Amendment.
• Under Mahanoy’s off-campus framework, the school’s regulatory interests were diminished because Leroy spoke off campus, outside school hours, not via a school channel, and without identifying or targeting the school community.
• The post was not a “true threat,” fighting words, or obscenity, and thus remained within the First Amendment’s ordinary protection. While schools can regulate more than just unprotected categories, their interests must justify doing so for off-campus speech; those interests did not carry the day here.
• The asserted “substantial disruption” consisted largely of conversations, a 15–20 minute assembly, and a nine-minute student demonstration. That reaction—much of it the product of others’ independent choices and the school’s own response—did not satisfy Tinker’s demanding standard for curbing off-campus speech.
• Although schools may restrict off-campus speech that makes students fear for their safety, the record showed the district punished Leroy to teach “racial sensitivity” and deter “insensitive” speech, i.e., for offense, not safety. Leroy also took his post down within minutes, undermining any inference that he intended to threaten or harass.
• Social media’s reach and risk of transmission do not collapse the distinction between on- and off-campus speech; treating all off-campus social media as on-campus would effectively regulate students 24/7 and chill protected expression.

Detailed Analysis

Precedents Cited and How They Shape the Decision

• Tinker v. Des Moines (1969): The bedrock standard: student speech may not be suppressed unless it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The Second Circuit emphasizes Tinker’s caution against suppressing speech to avoid the “discomfort and unpleasantness that always accompany an unpopular viewpoint.” The opinion also highlights that the most relevant “disturbance” inquiry looks to disruption attributable to the speakers, not the response of listeners alone.
• Mahanoy Area School District v. B.L. (2021): The Supreme Court’s first major off-campus case. It identifies three features of off-campus speech that generally diminish school authority: (1) parents, not schools, ordinarily govern off-campus speech (in loco parentis is attenuated); (2) extending school rules off campus risks 24-hour regulation; and (3) schools themselves have an interest in protecting unpopular expression, as “nurseries of democracy.” Mahanoy counsels case-by-case consideration of the speech’s nature; when, where, and how it occurred; and the school’s interests. The Second Circuit applies those same factors and, as in Mahanoy, finds the school’s interests insufficient.
• Virginia v. Black (2003) and Counterman v. Colorado (2023): These cases define “true threats” (serious expressions of intent to commit unlawful violence) and, in Counterman, impose at least a recklessness mental-state requirement for criminalizing threats. The Second Circuit uses these authorities to mark the boundary: Leroy’s post was not a true threat. Importantly, the court clarifies that schools may sometimes regulate off-campus student speech that falls short of a true threat—particularly when it reasonably causes students to fear for their safety—but that was not the basis or the record here.

The Court’s Legal Reasoning

1) Nature of the speech

Leroy’s post, while offensive and racially insensitive to many, did not constitute a true threat, fighting words, or obscenity. That means, in general First Amendment terms, it receives “strong protection.” In the school context, Tinker/Mahanoy allows some regulation beyond unprotected categories, but courts still require a concrete school interest sufficient to overcome the First Amendment when the speech is off campus. There was none here.

2) When, where, and how Leroy spoke

• The post was created off campus, after school, on a personal device, and distributed to a private circle of Snapchat “friends.”
• The content did not identify the school, a classmate, a teacher, or any school personnel, and did not target the school community with vulgar or abusive language.
• The court rejects the argument that social media “changes the boundaries of the schoolhouse gate.” Although social media increases the likelihood of school awareness and may amplify consequences, it does not erase Mahanoy’s on/off campus distinction. Treating off-campus social media as per se regulable would effectively regulate students 24 hours a day and chill speech.

3) The school’s asserted interests

The district advanced three interests, evaluated separately:

• Teaching racial sensitivity/deterring offensive speech. The record showed this was the principal rationale for discipline. But as in Mahanoy (where the school’s interest in curbing vulgarity was weak off campus), the interest in teaching values is diminished when the speech occurs on the student’s own time, outside school control. The district had non-punitive pedagogical tools it actually used: class discussions, an assembly, a demonstration, and later staff training. Punishment for offense alone violates the First Amendment.
• Preventing substantial disruption under Tinker. The “disruption” here amounted to conversations, a brief assembly, a short student demonstration, and the administrative time responding to emails. As in Mahanoy, such limited school-time ripple effects do not meet Tinker’s “demanding” substantial-disruption threshold for curbing off-campus speech. Critically, much of the disruption flowed from the reactions of others and the school’s own chosen programming, not from the speaker’s conduct in school.
• Protecting students’ safety. The court forthrightly recognizes that schools can sometimes regulate even off-campus speech that causes students reasonably to fear for their safety, even if the speech is not a prosecutable true threat. But two facts defeated that interest here: (i) the record did not show safety protection as the actual basis for discipline—rather, the hearing officer and superintendent repeatedly framed the punishment as teaching and deterring “insensitive conduct”—and (ii) Leroy removed the post within minutes upon realizing its import, undermining any inference that he intended to threaten, bully, or harass.

Balancing all three Mahanoy considerations, the court holds the district’s interests do not justify punishing Leroy’s otherwise protected off-campus speech.

What This Decision Adds to Existing Law

• Offense vs. safety-based fear. The decision draws a sharper line between speech that is offensive (even deeply and reasonably so) and speech that reasonably makes students fear for their safety. Schools may punish the latter in some circumstances; they may not punish the former merely because it is offensive.
• Reaction-driven disruption is not enough. Disruption attributable primarily to listeners’ reactions or the school’s own programmatic responses (assemblies, facilitated demonstrations) does not, without more, satisfy Tinker for off-campus speech. This limits “heckler’s veto” dynamics in K–12 settings.
• Social media remains off campus. The court resists collapsing the on/off-campus boundary just because the speech travels on social platforms. Social media’s mass audience does not convert off-campus speech into on-campus speech for discipline purposes.
• Record matters. Courts will look to the school’s actual rationale as reflected in contemporaneous decisionmaking. Post hoc litigation characterizations (e.g., recasting a values-based punishment as a safety-based response) will carry little weight.

The Concurrence: Toward a Recklessness Standard for Off-Campus Threat/Harassment Cases

Judge Pérez concurs in the judgment and offers a doctrinal roadmap for future cases:

• Four guideposts distilled from Mahanoy: (1) schools can regulate some truly off-campus speech; (2) Tinker applies off campus but is meaningfully constrained; (3) off-campus regulation is diminished by parental authority, 24-hour speech concerns, and “nurseries of democracy”; and (4) there is broad consensus that serious bullying/harassment and threats may be regulable even if originating off campus.
• Safety-focused disruption. The concurrence would permit discipline for off-campus speech that undermines students’ sense of safety and thereby materially impairs learning—even if the speech is not a “true threat.”
• Mental state safeguard. To protect First Amendment “breathing room,” the concurrence proposes importing a culpable mental-state requirement akin to Counterman: punishment should be limited to off-campus speech uttered at least recklessly as to the risk that it will be reasonably perceived as threatening, bullying, or harassing and will disrupt learning. This mitigates chilling effects while allowing schools to address serious harms.
• Context and audience matter. Courts should assess how a reasonable student in context would perceive the speech (including school climate or patterns of harassment) and give weight to educators’ observations. Broad public dissemination on social media increases the foreseeability of school impact.

The majority does not adopt a mens rea requirement and expressly declines new bright-line rules, but the concurrence’s recklessness proposal is likely to influence future litigation and school policy within the Second Circuit and beyond.

Practical Impact and Guidance

For K–12 Administrators

• Do not equate offense with safety. Distinguish between speech that offends and speech that reasonably causes students to fear for their safety. Punishing the former risks unconstitutional viewpoint discrimination.
• Build a contemporaneous, safety-centered record if warranted. If safety is the concern, document concrete, student-specific evidence of fear or impairment to learning (e.g., statements, counselor observations), and the school’s reasons for concluding that discipline is necessary to protect students—distinct from public-relations or values-based rationales.
• Calibrate your response. Consider non-punitive, pedagogical measures first (guided discussions, voluntary programming, counseling). The court approvingly noted the district’s use of assemblies and demonstrations as alternatives to punishment.
• Avoid reaction-based justifications. Do not rest discipline primarily on the fact that others reacted strongly or that the school chose to devote class time to address the issue. Reaction alone will not meet Tinker for off-campus speech.
• Social media is usually off campus. Treat off-campus, after-hours posts on personal devices as off-campus speech unless they occur in a setting functionally equivalent to school or are directly tied to school programs, platforms, or assignments.
• Targeted threats and harassment remain regulable. Clear threats, targeted bullying or harassment of identified students, or patterns of conduct that reasonably produce fear and impede learning may justify discipline. The concurrence suggests documenting the speaker’s awareness or recklessness regarding those risks.
• Policy and training updates. Review codes of conduct for off-campus speech provisions. Incorporate safety-focused criteria, emphasize objective indicators of learning disruption, and train staff to differentiate offense from fear, and to document observations credibly and contemporaneously.

For Students and Families

• Off-campus online speech is generally protected, even if controversial or offensive. Schools cannot punish you just because others are upset.
• But safety matters. If your off-campus speech reasonably causes classmates to fear for their safety or targets them in ways that impair their ability to learn, schools may intervene.
• Intent and response matter. Removing a post promptly, apologizing, and avoiding targeted or threatening content can be relevant in any later dispute.

For Litigators and Courts

• Frame the issues with Mahanoy’s three-part lens, then parse Tinker’s two prongs (disruption and “invasion of the rights of others”) separately. Keep offense and safety distinct.
• Interrogate causation. Identify how much of the disruption is attributable to the speaker versus audience reactions and school response. Avoid a “heckler’s veto.”
• Scrutinize the record for the school’s actual rationale. Give limited weight to post hoc recharacterizations in litigation that depart from the contemporaneous basis for discipline.
• Consider the concurrence’s mens rea proposal. Although not controlling, a recklessness threshold provides administrable protection against chilling while permitting schools to address serious harms; it aligns with Counterman and school-speech precedent recognizing broader authority than “true threats” but narrower than pure offense-regulation.

Complex Concepts Simplified

• Off-campus speech: Student expression outside school property, school hours, and school-controlled channels. Mahanoy treats such speech as generally outside school authority, with limited exceptions.
• In loco parentis (at school): Schools act in place of parents during the school day and at school activities, which justifies more regulation on campus. Off campus, parental authority predominates.
• Tinker “substantial disruption”: Schools may restrict student speech if it materially disrupts classwork or causes substantial disorder. Mere discomfort or disagreement is insufficient.
• “Rights of others” (Tinker): A separate basis for regulating speech when it invades other students’ rights—most relevant when speech reasonably causes fear for safety or amounts to harassment or bullying that impairs learning.
• True threats (Black/Counterman): Serious expressions of intent to commit violence; punishable, with at least recklessness as to threatening nature required in criminal cases. School regulation can reach somewhat beyond this line when safety is implicated, but not to mere offense.
• Heckler’s veto (in essence): Government suppression of speech because of anticipated audience reaction. Leroy warns against letting listener reaction alone justify curbing off-campus student speech.
• Viewpoint discrimination: Punishing speech because of disagreement with its perspective. Teaching values cannot be a pretext for viewpoint-based punishment of off-campus speech.

Unresolved Questions and Future Flashpoints

• Mens rea for off-campus safety cases. The concurrence urges a recklessness requirement. Future cases may adopt, refine, or reject this safeguard.
• Scope of “rights of others.” How to calibrate the offense–fear boundary in varied contexts (e.g., repeated online conduct, targeted posts, vulnerable populations, or schools with known patterns of harassment) remains fact-intensive.
• Magnitude and type of disruption. What level and kind of school impact (walkouts, prolonged counseling needs, sustained class disruptions) will meet Tinker for off-campus speech?
• Interplay with Title VI/Title IX duties. Schools’ obligations to address discriminatory harassment may collide with First Amendment limits; the court’s safety-focused path offers a way to reconcile but not eliminate tension.
• Social media and school nexus. Posts on school-managed platforms or tied to curricular/extracurricular programs may shift the analysis toward on-campus regulation.

Conclusion

Leroy refines the Mahanoy framework in a way that meets the realities of digital speech without collapsing the on/off-campus boundary. The Second Circuit firmly holds that schools may not punish off-campus social media speech simply because it is offensive or because it triggers reaction-driven “disruption” that the school chooses to address through assemblies and discussions. At the same time, the court acknowledges schools’ authority—and responsibility—to protect students from off-campus speech that reasonably instills fear for safety and impairs learning, even when the speech is not a prosecutable “true threat.” Because the district punished Leroy for offense rather than safety—and because the disruption was limited and largely reactionary—the discipline violated the First Amendment.

The concurrence’s proposed recklessness standard gives administrators and courts a workable safety valve: discipline off-campus speech in the narrow class of cases where the speaker at least consciously disregarded a substantial risk that the speech would be reasonably perceived as threatening, bullying, or harassing and would materially hinder learning. Whether or not that standard takes hold, Leroy’s central message is clear: in the Second Circuit, off-campus student speech on social media remains strongly protected; schools must justify discipline with concrete, safety-based reasons rather than offense or public outcry; and reaction alone is not “substantial disruption.”

Expect Leroy to shape policies and litigation in New York, Connecticut, and Vermont. Administrators should invest in pedagogical responses, document safety-based concerns when they genuinely arise, and avoid conflating offense with fear. Students retain robust speech rights off campus—but must understand that speech which reasonably makes classmates fear for their safety is not insulated from school response.