The Supreme Court’s 2021 Decision in Mahanoy Area School District v. B.L.

The Sixth Circuit’s first ruling on a First Amendment student speech issue since a landmark Supreme Court case in 2021 has arrived, marking the bounds of students’ free speech rights while off-campus. The Supreme Court’s 2021 decision in Mahanoy Area School District v. B.L. overturned a suspension imposed against a high school cheerleader for off-campus speech (delivered through Snapchat to selected friends) in which the student expressed frustration with her coaches as a result of not being selected for the varsity cheer team.  Holding the speech to be protected and overturning school discipline against the student, the Supreme Court outlined three features of off-campus speech that limit the school’s interests in student speech and, by extension, the rights of the school to regulate the speech.

Limits on School’s Interests in Off-Campus Student Speech

First, schools generally do not act in loco parentis while high school students are off campus, meaning their interests in student speech is lessened when students are off school property and out of the school’s care, custody, and control. Second, courts must be skeptical of schools’ efforts to regulate off-campus speech for the simple fact that both on- and off-campus speech encompass all speech a student may engage in at all. Third, the school itself has an interest in protecting even unpopular expression because schools are “the nurseries of democracy” in developing an informed, intellectually diverse, and engaged citizenry. Weighing these three considerations, the Supreme Court intervened to overturn the discipline imposed against the cheerleader in Mahoney, finding that her school’s attempts to regulate her protected off-campus speech were an unconstitutional infringement of her First Amendment rights.

Impersonation and Harassment on Instagram

The Sixth Circuit had occasion to apply the Mahoney framework for the first time in Kutchinski v. Freedland Cmty. Sch. Dist. In doing so, it arrived at an opposite conclusion. Kutchinski concerned H.K., a student at Freedland Community School District, who created a fake Instagram account impersonating a teacher at the school. Although originally tame, the account became graphic and vulgar, eventually including threats and sexual content. H.K. argued that the inappropriate material on the account was posted by two additional students with whom H.K. shared the Instagram account’s login credentials. These other two students also began promoting the account, tagging teachers, and generally engaging in behavior that the Sixth Circuit found to constitute “severe harassment” of three teachers and a fourth Freeland student.

School’s Ability to Regulate Student Speech on a Spectrum

The Kutchinski opinion drew heavily from Justice Alito’s concurrence in Mahanoy to frame schools’ ability to regulate student speech on a “spectrum,” wherein a school can “probably regulate ‘speech that takes place during or as part of what amounts to a temporal or spatial extension of the regular school program[,]’” and generally cannot regulate “‘speech that is not expressly and explicitly directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern[.]’” In Kutchinski, the explicit targeting of Freedland’s teachers and one of its students was a large consideration in upholding discipline in this case.

Attribution of Online Communications to the Creator of an Account

The Kutchinski court also had occasion to address this previously unanswered question in the Sixth Circuit: may online communications, though authored by others, be attributed to the individual who created an Instagram account? Joining the First, Fourth, and Ninth Circuits, the Sixth Circuit held that when a student “causes, contributes to, or affirmatively participates in harmful speech, the student bears responsibility for the harmful speech[,]” regardless of whether the speech was produced or posted by the student. This framing side-stepped plaintiff’s effort to employ the Communications Decency Act as a shield from responsibility for the content at issue.

The relevant law states:

 “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

To the extent Section 230 applies, the Sixth Circuit declined to find that H.K. was the “publisher or speaker” of the posts made by his classmates, but rather held that it only needed to determine that H.K. had “contributed to the harmful speech through his own actions.” The Kutchinski court also declined to accept H.K.’s proposition that his suspension violated his freedom of association by disciplining him for his association with the classmates who posted the harmful material to Instagram. Centering the “contribution” of H.K. to the harmful speech, the Sixth Circuit declined to accept that H.K.’s right to free association was infringed by the school’s discipline.

Moving Forward

First Amendment issues surrounding school discipline are highly factually specific, though the Sixth Circuit’s post-Mahoney decision in Kutchinski marks an important development in this area of the law.