The Authority to Punish Lewd Speech is Limited Once a Student Exits School Grounds

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Mahanoy Area Sch. Dist. v. B. L. by and through Levy, 141 S. Ct. 2038 (2021).  The United States Supreme Court holds that while schools can sometimes regulate student speech that takes place off-campus, the school district violated this student’s First Amendment rights when it suspended her from the junior varsity cheerleading squad for a vulgar social media post outside of school.

BACKGROUND

B.L., a high school cheerleader, posted a “Snap” featuring a photo of her and a friend holding up their middle fingers with the text, “f[***] school f[***] softball f[***] cheer f[***] everything” superimposed on the image. B.L. took the Snap at a local convenience store on the weekend when she was not participating in any school activity. The Snap did not specifically mention the high school or picture the high school. Further, the Snap was only shared with B.L.’s friends on SnapChat (a social media platform), and thus was not available to the general public.

Shortly after B.L. sent the Snap, one of the cheerleading squad’s coaches informed B.L. that she was being dismissed from the squad.  The coach produced a printout of the Snap and told B.L. that the Snap was “disrespectful” to the coaches, the school and the other cheerleaders.

The District Court granted an injunction ordering the District to reinstate B. L. to the cheerleading team. Relying on Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, the District Court found that B.L.’s punishment violated the First Amendment because her Snapchat posts had not caused substantial disruption at the district. The Third Circuit affirmed the judgment, but the majority reasoned that Tinker did not apply because the District had no authority to regulate student speech occurring off-campus.

On appeal, the Supreme Court held that while public school districts may have a special interest in regulating some off-campus student speech, the reasons offered by the District in this case were not sufficient to overcome B.L.’s interest in free expression.

DISCUSSION

The Supreme Court, in the seminal case of Tinker, held that students do not “shed their constitutional rights to freedom of speech or expression . . . at the school-house gate.”  However, the Court has also clarified that courts must apply the First Amendment protections to students “in light of the special characteristics of the school environment.”  One such characteristic is the fact that districts at times stand in loco parentis, i.e., in the place of parents.  The Court has previously outlined three specific categories of student speech that districts may regulate in certain circumstances:

(1) “indecent,” “lewd,” or “vulgar” speech uttered during a school assembly on school grounds;

(2) speech, uttered during a class trip, that promotes “illegal drug use,”; and

(3) speech that others may reasonably perceive as “bear[ing] the imprimatur of the school,” such as that appearing in a school-sponsored newspaper.

In Tinker, the Court also said that districts have a special interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” 393 U.S., at 513, 89 S.Ct. 733. In Levy, the Court confirmed that these special characteristics call for leeway when districts regulate speech that occurs under its supervision.

As for off-campus speech, the Court held that the First Amendment permits public school districts to regulate some student speech that does not occur on school premises during the regular school day, but that this authority is more limited than the authority to regulate on-campus speech.  This is because districts will rarely be standing in loco parentis when a student speaks outside of the school.  In addition, if the district could regulate off-campus speech like on-campus speech, then a district would be able to regulate student speech 24 hours per day.  Accordingly, the Supreme Court stated that a district bears a heavy burden to justify an attempt to regulate off-campus political or religious speech.  Finally, because schools are the nurseries of democracy, districts should generally protect unpopular ideas, not regulate them.  Accordingly, because of these differences, districts have much less leeway when attempting to regulate off-campus speech. 

The Court declined to issue a bright line rule as to when districts could regulate off-campus speech, but concluded that the District did not have the right to regulate B.L.’s speech. 

The Court noted that the speech was a crude criticism of B.L.’s team, coaches and school that was protected by the First Amendment.  As for the District’s interest in regulating the speech, it was minimal because the speech occurred outside of school hours and beyond school property that was transmitted through a personal cell phone to private social media friends.

As for the District’s interest in prohibiting students from criticizing school teams and coaches in a vulgar manner, the Court concluded that districts have little interest in punishing student use of vulgar language outside of school. 

The Court also dismissed the District’s arguments that it was attempting to prevent disruption in the classroom or in the cheerleading squad because there was no evidence of any disruption in the record.  Therefore, the Court concluded that the District did not meet the Tinker standard, which requires more than the desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint.

Accordingly, while the Court did not agree with the Third Circuit’s reasoning that districts cannot regulate off-campus speech, it affirmed the judgment and found that the District violated B.L.’s rights.

PRACTICAL ADVICE

While the Court indicated that discipline for off-campus speech may be permissible in cases of serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers, school districts should work closely with their solicitors when determining when speech can be punished and when it is protected by the First Amendment.  As stated in Justice Alito’s concurring option: “If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.” 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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