Mahanoy affirmed the central tenets of the Court’s landmark opinion in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) that while students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” schools have a special interest in regulating speech that “would materially and substantially interfere with the requirements of appropriate discipline and in the operation of the school.” The Court held that “the special characteristics that give schools additional license to regulate student speech” do not “always disappear when a school regulates speech that takes place off campus. The school’s regulatory interests remain significant in some off-campus circumstances.”

However, with regard to the particular speech at issue in Mahanoy, the Court held that the school’s interests were insufficient to justify disciplinary action against B.L.

Background

As a rising freshman, B.L., a student at Mahanoy Area Jr./Sr. High School (the School) in Pennsylvania, made her school’s junior varsity (JV) cheerleading team. The following academic year, as a rising sophomore, B.L. hoped to join the varsity team, but was turned down. After learning that she would spend another year on the JV cheer team, B.L. went to a local convenience store one Saturday and, from that off-campus location, posted two messages (Snaps) on Snapchat, a popular social media application enabling users to send messages that disappear within a short period of time (from a few seconds to 24 hours after posting). In her first Snap, B.L. posted a photo of herself and a classmate raising their middle fingers at the camera, adding the caption, “F[***] school f[***] softball f[***] cheer f[***] everything.”

Without B.L.’s knowledge, another cheerleader at the School learned of B.L.’s Snap and shared a screenshot of it with her mother, who was one of two cheerleading coaches at the School. Knowledge of B.L.’s Snap spread more widely at the School thereafter, prompting some students to express concern about B.L.’s membership on the cheer team. Eventually, the cheer team’s coaches concluded that B.L.’s Snaps violated team rules, which required cheerleaders to have “respect for [their] school, coaches, teachers, [and] other cheerleaders,” and to avoid “foul language and inappropriate gestures.” As a result, the coaches removed B.L. from the cheer team for the duration of the school year, but they took no other disciplinary action and permitted her to try out for the team again as a rising junior.

B.L. sued the Mahanoy Area School District (the School District) pursuant to 42 U.S.C. § 1983, arguing a violation of the First Amendment. The District Court for the Middle District of Pennsylvania granted summary judgment for B.L., and a panel of the Court of Appeals for the Third Circuit affirmed. The panel majority held that while Tinker provided schools considerable leeway to regulate on campus speech, this freedom did not apply to off-campus speech.

Holding

The Supreme Court rejected the Third Circuit’s reasoning, holding instead that schools retain significant interests in regulating speech that takes place off campus. Some examples cited by the Court were “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.”

The Court declined, however, to “set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus.” Rather, the Court articulated three features that will often diminish a school’s authority to regulate off-campus speech.

First, the Court noted that a school will rarely stand in loco parentis in relation to off-campus speech, with the implication being that “off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.” Second, the Court noted that from a student’s perspective the regulation of both on-campus and off-campus speech effectively included all speech, meaning “courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.” Third, “the school itself has an interest in protecting a student’s unpopular expression” to ensure 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.’”

Applying these principles to the speech at issue in Mahanoy, the Court held that the school violated B.L.’s First Amendment rights. At its core, B.L.’s Snapchat post amounted to criticism of the school that, were she an adult, would be entitled to strong protection under the First Amendment. Furthermore, the Court noted that the school’s interests in punishing B.L. were diminished by the fact that (i) her posts appeared outside of school hours, (ii) from a location outside school, (iii) did not identify the school or specifically target any member of the school community, (iv) were transmitted through a personal cellphone; (v) to an audience consisting of her private circle of Snapchat friends.

Additionally, the Court analyzed the School’s interest, which it broke into three parts. First, the school’s interest in teaching good manners was insufficient to overcome B.L.’s interest in free expression under circumstances where the school did not stand in loco parentis. Second, the School failed to present evidence of “‘substantial disruption’ of a school activity or a threatened harm to the rights of others.” Third, the Court held that there was insufficient evidence that B.L. posts caused “any serious decline in team morale—to the point where it could create a substantial interference in, or disruption of, the school’s efforts to maintain team cohesion.”

In a concurrence joined by Justice Gorsuch, Justice Alito made two important observations. First, he noted that if B.L had been enrolled in a private school and posted vulgar and derogatory messages about her school’s cheerleading squad, “[t]he Commonwealth of Pennsylvania would have had no legal basis to punish her and almost certainly would not have even tried.” Second, the concurring Justices expressly noted that they did not understand the decision in Mahanoy to apply to students at public colleges or universities as “the age, independence, and living arrangements of such students,” presented “very different questions” with regard to regulation of their speech.