Student’s Off-Campus Online Speech Not Subject to School Regulation
The U.S. Supreme Court (Court) considered an appeal from the Third Circuit Court of Appeals (Third Circuit) by Mahanoy Area School District (District). The Court held that while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the District in this case were not enough to overcome the student’s interest in free expression. As a result, the District violated the student’s First Amendment rights when it suspended her from the junior varsity cheerleading squad for criticizing the cheerleading program in a profanity-laced, off-campus Snapchat post.
This case involved B.L., a student in the District’s high school who tried out for the varsity cheerleading squad at the end of her freshman year. She didn’t make the varsity squad but was offered a spot on the junior varsity squad. B.L. didn’t accept this decision gracefully and that weekend, while at a local convenience store with a friend, posted two photos on Snapchat, a social media platform where a user’s posts are only visible to approved friends for a short period of time and then disappear. The first photo showed B.L. and her friend with middle fingers raised and the caption “F--- school f--- softball f--- cheer f--- everything.” The second image was blank but for a caption reading “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?” B.L.’s Snapchat friends included other high school students, some also on the cheerleading squad. At least one of these students took pictures of B.L.’s posts and shared them with her mother, a cheerleading squad coach. The images spread, and later that week several cheerleaders approached the coaches, visibly upset by the posts. After discussing the matter with the school principal, the coaches decided to suspend B.L. from the cheerleading squad for her sophomore year because the posts used profanity in connection with a school extracurricular activity and therefore violated team and school rules.
B.L. apologized but the District affirmed her suspension, so B.L. filed suit in Federal District Court (District Court). The District Court found that B.L.’s posts did not cause a substantial disruption at school and that the District’s suspension violated B.L.’s First Amendment rights. The District appealed to the Third Circuit, which upheld the District Court’s conclusion. The District then appealed to the Supreme Court.
The Court began by considering its history of student speech caselaw. It was very careful not to disturb the 1969 holding in Tinker v. Des Moines Indep. Comm. Sch. Dist., where the Court found that schools have a special interest in regulating on-campus student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The Court noted that schools’ special interests in regulating student speech do not always disappear when that speech takes place off campus, but it also set forth what circumstances may implicate a school’s regulatory interests. These circumstances include: serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices. Despite this list, the Court explicitly stated it was not setting forth “a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus” to schools’ needs to prevent substantial disruption. Instead, the Court noted three features of off-campus speech that often distinguish schools’ efforts to regulate it:
- A school will rarely stand in loco parentis when a student speaks off campus.
- From the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day.
- The school itself has an interest in protecting a student’s unpopular expression, especially when it occurs off-campus, because America’s public schools are the nurseries of democracy and democracy only works if we protect the “marketplace of ideas.”
The Court stated that these three features, taken together, “mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.”
Next, the Court considered B.L.’s posts. First it found that though her posts were “crude” and “used vulgarity,” they were entitled to First Amendment protection because they reflected criticism of the rules of B.L.’s community. Second, applying the above-noted features of off-campus speech to B.L.’s posts, the Court found that the circumstances of her posts diminished the school’s interests in regulation. Third, the Court reviewed the school’s interest in teaching good manners and in punishing vulgar language aimed at the school community, but found this interest “weakened considerably” because B.L. spoke outside of school on her own time and because the school presented no evidence of any general effort to prevent students from using vulgarity outside the classroom. Finally, the Court found that B.L.’s posts did not cause substantial disruption at school or within the cheerleading squad. Based on this, the Court affirmed the Third Circuit’s judgment that the District violated B.L.’s First Amendment rights when it suspended her from the cheerleading squad for one year.
While this decision leaves Tinker and its progeny intact, districts should remember the three distinguishing features of off-campus speech (listed above) when considering whether to regulate off-campus student speech.