The U.S. Supreme Court has decided on an important case for the free speech rights of students outside of school grounds. Attorney Taylor Smith of our firm explains how the high court handled a post to Snapchat that not only didn’t disappear but got into the school administrators’ hands.

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By Taylor M. Smith IV
ATTORNEY/PARTNER

Social Media and Student Free Speech - Mahanoy Decision
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Legal Topics

The U.S. Supreme Court on June 23, 2021, issued an important clarification of the reach of First Amendment free speech protections to students who use vulgar language about school functions while not on school grounds. 

The Court issued its opinion in Mahanoy Area School District v. B.L., an 8-1 decision with Justice Stephen Breyer writing for the majority of eight justices and Justice Clarence Thomas the lone dissenter. The case concerned the suspension of B.L., a then-freshman at Mahanoy Area High School in Mahanoy City, Pennsylvania. 

The weekend after B.L. did not make the varsity cheerleading squad or get her preferred softball position for her sophomore year, she visited the Cocoa Hut, a local convenience store where she made two posts to Snapchat, a social media application. The first image posted was of B.L. with her middle fingers raised and read “F[***] school fuck cheer f[***] everything.” The second image was blank but the post caption read “Love how me and [another student] get told we need a year of JV before we make varsity but tha[t] does matter to anyone else?” and included an upside-down smiley face emoji. 

B.L. made these posts to her Snapchat “Story”, which only allows “friends” of the original poster to see the image for a 24-hour-period. One of B.L.’s “friends” then screenshot the posts and shared them with other members of the cheerleading squad. One other cheerleading squad member shared the image with her mother, who was the cheerleading squad coach, and after the discussion around these posts “persisted during an algebra class taught by one of the two coaches,” the school acted. It suspended B.L. from the junior varsity cheerleading squad for the upcoming year. After her apologies fell on deaf ears and her appeals before the school athletic director, principal, superintended and school board all failed, she (through her parents) sued the school district.

The U.S. Supreme Court held that a public school’s traditional interests in regulating student speech remain significant even when those communications occur off-campus, but they cannot extend to cases like B.L.’s where the evidence does not show “there was a substantial disruption of learning activities” or the school’s interest in “the protection of those of those who make up the school community” was not as high due to the off-campus communication. 

Although the nation’s highest court is fond of repeating that public school students do not “shed their constitutional rights to freedom of speech or expression” at the schoolhouse gate, it is abundantly clear through the Court’s major school speech decisions since Tinker v. Des Moines Independent Community School District (1969), that public school pupils have less free speech rights than most private persons in our society. The Supreme Court has used its decision from Tinker that school’s a special interest in regulating student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others” to uphold school censorship on student speech several times since. Consequently, many First Amendment attorneys like myself were concerned the silencing of students like B.L. would get yet another stamp of approval from the high court. 

In Mahanoy though, the Supreme Court has struck the right balance. The Court declined to issue a blanket rule that out-of-school speech like B.L.’s could not be disciplined by schools but did say that the schools’ special interests in regulating out-of-school student speech were lessened. 

The Mahanoy opinion lists three “features of off-campus speech that often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech.” First, unlike on-campus speech, when schools discipline students for off-campus communication, they are not disciplining in loco parentis (in the place of parents) but are instead substituting their judgment for parents who must retain supervision over out of school behavior. Second, if a school can couple “traditional” regulations of on-campus speech with those of myriad, modern, off-campus communications then “all the speech a student utters during the full 24-hour day” will be subject to school scrutiny. The Supreme Court here wouldn’t go that far. As it did say: this means a reviewing court should be more skeptical of off-campus speech regulation “for doing so may mean the student cannot engage in that kind of speech at all.” Third, and arguably most important, schools have a strong interest in protecting a student’s unpopular expression. The Mahanoy opinion reminds us that our representative democracy only works if we protect the “marketplace of ideas” and that protection “must include the protection of unpopular ideas, for popular ideas have less need for protection.” The Court concludes “Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it.”

This Supreme Court opinion will be used to show that the leeway the First Amendment grants to schools in regulating the speech of students will be diminished when students speak off-campus. All in all, this 2021 opinion represents a positive development for the free speech rights of students. But for those who wish for more school control of student lives outside the classroom, please spare a thought for the cheerleading squad mother/coach/Algebra teacher at the school in this case: B.L.’s Snapchat post never had to enter the school at all.