ALBANY, Calif. (KTVU) - Are racist images on social media protected as free speech? The attorneys for four Albany High School students say the answer is yes. They're suing the district for punishing students for a social media post that caused a storm of controversy at the school.
The images included nooses drawn around necks of some African American students and side-by-side photos of the girls and apes.
In the lawsuit against the Albany School District, filed in federal court the attorney for one of the accused students says there is some dispute about who initially created the image, who may have altered them using Snapchat.
But the image was ultimately posted on a students' private Instagram account.
At least four Albany High School students who either commented or liked the post were punished with suspension, and one student facing expulsion.
Their attorneys site Supreme Court precedent as the basis for this lawsuit saying "the first amendment says schools may only prohibit speech if it creates a substantial disruption to school activities and when said conduct is done within the school or school sponsored activity."
There is little doubt the posts caused a disruption of sorts on the campus. There were rallies and protests by other students expressing anger and frustration about the racist posts.
The district held town hall meetings to address community's concerns about the images and race relations at the school.
But attorneys for the four students who were suspended, argue their likes and comments on a private Instagram account are protected free speech. They weren't posted on a school's social media page, and they weren't posted while the students were at school.
They're asking for damages as well as allowing the students to return to school, and having any disciplinary marks taken off the students' records.
The Albany School District issued a statement in response saying they will defend the disciplinary steps they took against these students in court.
The district has until next week to file a formal, legal response to the suit.