Schools Can’t Punish Students for Off-Campus Speech, Including Social Media Posts, EFF Tells Supreme Court

Washington, D.C.—The Electronic Frontier Foundation (EFF) urged the Supreme Court to rule that when students post on social media or speak out online while off campus, they are protected from punishment by school officials under the First Amendment—an important free speech principle amid unprecedented, troubling monitoring and surveillance of students’ online activities outside the classroom.

EFF, joined by the Brennan Center for Justice and the Pennsylvania Center for the First Amendment, said in a brief filed today that a rule the Supreme Court established in the 1960s allowing schools to punish students for what they say on campus in some limited circumstances should not be expanded to let schools regulate what students say in their private lives outside of school, including on social media.

“Like all Americans, students have free speech protections from government censorship and policing,” said EFF Stanton Fellow Naomi Gilens. “In the 1969 case Tinker v. Des Moines, the Supreme Court carved out a narrow exception to this rule, allowing schools to regulate some kinds of speech on campus only in limited circumstances, given the unique characteristics of the school environment. Interpreting that narrow exception to let schools punish students for speech uttered outside of school would dramatically expand schools’ power to police students’ private lives.”

In B.L. v. Mahanoy Area School District, the case before the court, a high school student who failed to make the varsity cheerleading squad posted a Snapchat selfie with text that said, among other things, “fuck cheer.” She shared the post over the weekend and outside school grounds—but one of her Snapchat connections took a screen shot and shared it with the cheerleading coaches, who suspended B.L. from the J.V. squad. The student and her family sued the school.

In a victory for free speech, the U.S. Court of Appeals for the Third Circuit issued a historic decision in the case, holding that the school’s limited power to punish students for disruptive speech doesn’t apply to off-campus speech, even if that speech is shared on social media and finds its way into school via other students’ smartphones or devices.

EFF also explained that protecting students’ off-campus speech, including on social media, is critical given the central role that the Internet and social media play in young people’s lives today. Not only do students use social media to vent their daily frustrations, as the student in this case did, but students also use social media to engage in politics and advocacy, from promoting candidates during the 2020 election to advocating for action on climate change and gun violence. Expanding schools’ ability to punish students would chill students from engaging online with issues they care about—an outcome that is antithetical to the values underlying the First Amendment.

“The Supreme Court should uphold the Third Circuit ruling and guarantee that schools can’t chill children and young people from speaking out in their private lives, whether at a protest, in an op-ed, in a private conversation, or online, including on social media,” said Gilens.

For the brief:
https://www.eff.org/document/eff-amicus-brief-bl-v-mahanoy

For more on free speech:
https://www.eff.org/issues/free-speech