The U.S. Supreme Court on Wednesday spent nearly two hours wrestling with its first case about schools’ regulation of student speech in the Internet era. The justices seemed to be searching for a way to rule as narrowly as possible while protecting young people’s right of self-expression, yet giving schools leeway to respond to threats and bullying that originate off campus.
“That sharp line … between on campus and off campus, how does that fit with modern technology?” Chief Justice John G. Roberts Jr. asked during arguments in Mahanoy Area School District v. B.L. (Case No. 20-255).
Several justices sympathized with the Pennsylvania student, Brandi Levy, who posted a profanity-laden social media message after she failed to make the varsity cheerleading team as a freshman at Mahanoy Area High School in 2017. Her “snap” saying “f*** school” and f*** cheer” was posted from a convenience store on a Saturday and came to the attention of her coach, who suspended her from cheerleading for one year.
“As a judge, and maybe as a coach and a parent, it seems maybe an overreaction by the coach,” said Justice Brett M. Kavanaugh, who has coached his two daughters’ school basketball teams. Referring to Levy, he continued: “She’s competitive, she cares, she blew off steam like millions of other kids have when they’re disappointed about being cut from the high school team or not being in the starting lineup.”
Justice Stephen G. Breyer said the student used “unattractive swear words, off campus. Did that cause a material and substantial disruption? I don’t see much evidence it did. And if swearing off campus did [cause such disruption], I mean, my goodness, every school in the country would be doing nothing but punishing.”
Breyer said he was wary of using the case to “write a treatise on the First Amendment.”
Questions about student speech on ‘hot-button’ issues such as Black Lives Matter
But the court appeared unwilling to simply affirm a lower court ruling that had held that the high court’s landmark 1969 decision on student speech in Tinker v. Des Moines Independent Community School District does not apply off school grounds.
Tinker said students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and upheld students who had worn black armbands in school to protest the Vietnam war. Schools could not discipline students for speech that did not substantially disrupt school, the court held.
A panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled that Tinker does not apply to “speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”
Lisa S. Blatt, a Washington lawyer representing the Mahanoy school district, “off-campus speech, particularly on social media, can be disruptive. The Internet’s ubiquity, instantaneous and mass dissemination, and potential permanence make the speaker’s location irrelevant.”
She said schools could not target political or religious speech, and that “Tinker applies off campus only when the student targeted both the school audience and a school topic.”
Justice Clarence Thomas wanted to know why only a school topic might be subject to regulation.
“Can’t there be comments about other hot-button issues or about current controversies, like protests or Black Lives Matter, Antifa, or Proud Boys or something like that, people can take sides that are just as disruptive in the school setting?” he said.
Blatt replied, “Schools are not in the business of teaching kids what to think, Justice Thomas. “You’re entitled to think whatever you want about Israel or race or Black Lives Matter.”
Justice Amy Coney Barrett said there seemed to be nothing in the Tinker decision that suggests it applies “outside of the school environment.”
There may be good policy reasons for extending Tinker to off-campus speech, Barrett said, such as to allow school officials to respond to harassment, bullying, threats of violence, and cheating. There was a concern, she said, “including in this case, that schools abuse this authority and that they punish things that maybe don’t cause substantial disruption or political speech or religious speech that they shouldn’t.”
Deputy U.S. Solicitor General Malcolm L. Stewart, representing President Joe Biden’s administration, also argued in support of the school district.
“The 3d Circuit’s rigid geographic approach is particularly unsound in the context of online speech since there is no meaningful causal link between the place from which an online communication is sent and the likelihood that it will disrupt school operations,” he said.
Justice Elena Kagan asked Stewart whether he believed a number of situations of off-campus speech constituted school speech, such as a student who emails his classmates to encourage a senior skip day, a student who tweets that there is pervasive homophobia at his school and that prospective gay students should stay away, and a student who tweets that his school “really stinks” and so ‘stay away.”
Stewart said those all constituted student speech and could be punished if they caused substantial disruption.
A concern about students carrying ‘the schoolhouse on their backs’
David D. Cole, the national legal director of the American Civil Liberties Union, represented Levy before the court, arguing that the rule announced in Tinker was an exception to general First Amendment protections of free speech and that it was limited to the context of “school-supervised and school-sanctioned settings.”
Extending school authority under Tinker to off campus"would transform a limited exception into a 24/7 rule that would upend the First Amendment’s bedrock principle and would require students to effectively carry the schoolhouse on their backs in terms of speech rights everywhere they go,” Cole said.
Cole proposed a test in which school officials maintained authority over students whenever they were in the “school environment,” which would include on campus and its immediate environs during school hours, to and from school, at school-supervised events such as field trips, and while remote learning on a school platform.
Cole faced pushback from several justices, including Thomas, who has written that Tinker was wrong and that students have no speech rights in school.
Isn’t the school environment test “complicated by the Internet and by social media,” Thomas wondered. “You could send the exact same messages that could cause problems from your local 7-Eleven or you could send it to classmates who happen to be in class. You could send it over the weekend, but it still has a permanence that would certainly allow it to be used in class. So I don’t know how you locate the conduct in school versus out of school when you have social media.”
(Blatt called the student’s proposed test “a Frankenstein monster” of different First Amendment doctrines that would be “an administrative nightmare” for schools.)
Several justices explored whether participants in school sports or all extracurricular activities could be held to a different standard than the student body at large.
Some justices pressed Cole on whether the calculus is changed by the fact that Levy was participating in an extracurricular activity.
Couldn’t one of the conditions of being a member of a team, Justice Sonia Sotomayor wondered, be “that you won’t post foul language on social media?”
Justice Neil M. Gorsuch asked, “Why doesn’t it make a difference that the speech here was addressed ... in the context of an extracurricular activity and that the standards there may be different from, higher than what may be required of all students in the school environment?”
Cole pointed out that in Levy’s case, the 3rd Circuit had ruled that even though the Mahanoy High cheerleading program had rules requiring that cheerleaders “have respect for your school, coaches, teachers, other cheerleaders and teams” and that they avoid “foul language and inappropriate gestures,” those rules applied only during cheerleading season, and Levy had sent her Snapchat message during the off-season.
Still, he said, “I think teams have quite a bit of leeway in terms of imposing conditions on players as long as they’re set out in advance and the players agree to abide by them and they’re reasonably tied the needs of teenagers.”
Justice Samuel A. Alito Jr. offered his colleagues a narrow possibility for resolving the case.
“There is a huge gap between the broad and very important free speech issues that have been briefed and discussed this morning and the particular incident involved in this case,” Alito said. “If we’re going to address the broad issues, then I, for one, think we need clear rules that protect freedom of speech.”
But if the court doesn’t want to address all those broad issues, it could dismiss the case (which would leave the 3rd Circuit’s decision in place), or it could say that Tinker applies in school but says nothing about whether it applies off campus.
“We look at the particular comments made here,” Alito continued. “They’re made in colorful language, but, substantively, they boil down to something like, ‘I have no respect for the school, I have no respect for the cheer squad, I hate the school.’ … A school can’t discipline a student for off-campus speech that does no more than say, ‘I hate the school, I have no respect for the school.’”
A decision in the case is expected by late June.