U.S. Supreme Court Upholds Public School Students’ Off-Campus Speech Rights

In a win for freedom of speech, the U.S. Supreme Court held that public high school officials violated a student’s First Amendment rights when they suspended her from cheerleading for posting a vulgar Snapchat selfie over the weekend and off school grounds. EFF filed an amicus brief in the Supreme Court in support of the student, and a brief that proved influential in the Third Circuit.

The case, Mahanoy Area School District v. B.L., involved a public high school student who was placed on the junior varsity cheerleading squad after failing to make varsity. Out of frustration, Brandi Levy (later identified by her full name since she is no longer a minor) shared a “snap” with her middle finger raised and text that said, among other things, “fuck cheer.” The message was posted on a Friday night from a local convenience store. The cheerleading coaches suspended Levy from the J.V. squad for a year after one of her Snapchat connections took a screen shot of the message and shared it with them.

The school justified the punishment of Levy’s off-campus speech by invoking the Supreme Court’s opinion in Tinker v. Des Moines Independent Community School District (1969), which held that students may not be punished for their on-campus speech unless the speech “materially and substantially” disrupted the school day or invaded the rights of others. The school further justified Levy’s suspension on the ground that social media posts generated off campus can easily be brought onto campus given the widespread use of cell phones and the internet. We argued that Tinker should not be used to punish off-campus speech—including social media speech.

In ruling in favor of Levy, the Supreme Court did not go as far as we had hoped. The Court held that Tinker may sometimes justify restrictions to off-campus speech: “[W]e do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus.”

However, the Supreme Court emphasized that the situations in which public schools may reach into the private lives of students are sharply limited. The Court stated that “the leeway the First Amendment grants to schools in light of their special characteristics is diminished” when it comes to off-campus speech. The Court identified only four off-campus contexts where the “school’s regulatory interests remain significant” and may warrant punishment:

[1] serious or severe bullying or harassment targeting particular individuals; [2] threats aimed at teachers or other students; [3] the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and [4] breaches of school security devices, including material maintained within school computers.

The Supreme Court explained that there are three important “features” of off-campus speech that make it different from on-campus speech and thus make regulation of off-campus speech less justifiable.

First, “a school, in relation to off-campus speech, will rarely stand in loco parentis,” meaning in the place of a parent. The Court explained that this doctrine applies “where the children’s actual parents cannot protect, guide, and discipline them,” factors typically not present when it comes to students expressing themselves outside of school.

Second, most powerfully, schools should have a limited ability to punish off-campus speech because “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.”

Third, “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.” The Supreme Court recognized that “public schools are nurseries of democracy” with a duty to educate students about how the “free exchange [of ideas] facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will.”

Importantly, the Supreme Court did not create a special rule for off-campus social media speech, failing to heed the school’s argument that greater regulation of online speech, even if generated off campus, is necessary due to the uniquely shareable and accessible nature of speech on the internet. In our brief, we argued that the Supreme Court declined to grant lesser First Amendment protection to speech on the internet in Reno v. ACLU (1997) and to social media specifically in Packingham v. North Carolina (2017). As the Packingham Court said, “extreme caution” is necessary to avoid “suggesting that the First Amendment provides scant protection” online.

As Levy said after the Mahanoy decision came out, “I was frustrated, I was 14 years old, and I expressed my frustration the way teenagers do today. Young people need to have the ability to express themselves without worrying about being punished when they get to school.”