Supreme Court Sides with Student in Social Media Free Speech Case
Research Institutions and Higher Education 06/28/21 Lindsey Davis, Tyler Roth, Brenna Wildt
On June 23, 2021, the U.S. Supreme Court issued a much-anticipated decision addressing First Amendment protection of off-campus student speech. In Mahanoy Area School District v. B.L., the Supreme Court held that because a public school district failed to demonstrate that a student’s off-campus profanity-laced social media post denouncing the school and its cheer team actually “materially disrupted” the learning environment, the school violated the student’s First Amendment rights when it suspended her from the cheer team based on the social media post.
Though the Mahanoy decision provides no bright-line rule for schools concerning the degree of protection afforded to off-campus, online speech, it nonetheless offers important considerations for public school districts, colleges, and universities who—in an era dominated by social media—increasingly confront the blurry issues associated with digital speech and First Amendment protections.
When former Mahanoy Area High School freshman Brandi Levy was not selected for the school’s varsity cheer squad and instead offered a position on the junior varsity squad, she turned to social media to express her frustration. On a Saturday while at a local convenience store, Levy posted two pictures on her Snapchat “story” that were temporarily visible to her many social media contacts for a 24-hour period. One image Levy posted was of her and a friend with their middle fingers raised and included the caption, “F*** school, f*** softball, f*** cheer, f*** everything.”
At least one of Levy’s social media contacts—a fellow Mahanoy High School student—captured this post and circulated it to other students. Eventually, Levy’s cheer squad coaches learned of the image, including when they were confronted by several students who were “visibly upset” by Levy’s social media post. Distracted students also disrupted an Algebra class taught by one of the cheer coaches on a couple of occasions by discussing Levy’s social media post.
When the cheer coaches brought the social media post to the attention of the High School principal, they collectively decided that Levy’s use of profanity in connection with an extracurricular activity violated both cheer team and school rules. As a result, the school suspended Levy from the junior varsity cheer squad for the upcoming year. After Levy internally appealed the suspension and was unsuccessful, she and her parents sued in federal court alleging that the school district violated her right to free speech under the First Amendment.
Critical to its analysis, the Supreme Court majority first determined that Levy’s Snapchat post constituted “off-campus” speech because she transmitted it through her personal cell phone, to only her Snapchat contacts, after school hours, from a location outside the school, and in doing so did not specifically identify the school or target any individual affiliated with the school.
While acknowledging that Levy’s speech activity technically occurred off campus, the school argued that the far-reaching impacts of technology and social media ensure that such student speech nonetheless “reverberates throughout the classroom and commands the school’s attention.” However, the Supreme Court majority was not persuaded and held in its 8-1 decision that Levy’s interest in free expression was not overcome by the school’s interest in regulating her off-campus speech. Accordingly, the Court held that the school violated Levy’s First Amendment rights when it suspended her from the cheer squad.
The Supreme Court’s decision heavily relied on the following three features to distinguish a public K-12 school’s efforts to regulate on-campus versus off-campus speech:
- First, the Court distinguished a school’s role from that of a parent by noting that when students are off-campus, schools likely do not stand in loco parentis (i.e., in place of parents) to oversee students, as they often do when students are in school. Thus, the Court pointed out that off-campus speech will normally fall within the “zone of the parental,” where parents—not the school—are expected to guide, discipline, and protect students.
- Second, the Court reasoned that when schools police both on-campus and off-campus activity, students are left with no space to engage in speech not regulated by the school.
- Third, describing public K-12 schools as the “nurseries of democracy,” the Court explained that such schools have an interest in safeguarding critical and unpopular speech and protecting the marketplace of ideas. To this end, the Court found it important that Levy’s criticism was directed at a community of which she was a part, and that her vulgarity (which did not amount to fighting words, obscenity, or advocating illegal drug use) encompassed an unpopular opinion that—if anything—deserved more protection than a popular opinion.
These three features together diminished the First Amendment leeway the Court was willing to grant the school in its regulation of off-campus speech. While the Court recognized that the school had interests in punishing the use of vulgar language, teaching good manners, preventing disruption, and maintaining cheer team morale, these interests were ultimately outweighed by the location, timing, content and audience, as well as the lack of disruption Levy’s social media posts actually caused on campus.
The Mahanoy decision marks the first time since the 1969 decision in Tinker v. Des Moines that the Supreme Court has ruled in favor of a student and against a public educational institution in a free speech case. While the Mahanoy decision provides an important caution to schools regarding student free speech, the Supreme Court stopped short of establishing any bright line rule that outright prohibits school regulation of off-campus speech. Instead, the Court acknowledged that a “school’s regulatory interests remain significant in some off-campus circumstances”—such as where speech rises to the level of severe bullying or harassment or includes threats aimed at teachers or other students. Notably, this decision does not directly impact private schools, which have more discretion to regulate conduct that would otherwise be categorized as free speech in a public school setting.
Ultimately, in the wake of Mahanoy, K-12 public schools—as well as public colleges and universities where adult students are afforded even greater First Amendment protections—“will have a heavy burden to justify intervention” when it comes to political or religious speech that occurs outside schools, programs, and activities. Such schools, colleges, and universities should therefore revisit their speech, conduct, and social media policies and related disciplinary procedures with a specific eye to how such policies and procedures delineate between on- and off-campus speech (an often difficult distinction to draw) and whether, when, and what types of off-campus speech warrant school intervention. Because such issues often require swift attention, it is important to ensure school administrators and staff are appropriately trained regarding the “do’s and don’ts” of speech regulation.
If you need assistance in revising any of your policies and procedures, developing training protocols, or making the nuanced decision of whether to take action to address on- or off-campus student expression, contact your Quarles & Brady attorney or: