Argument Analysis: Free Speech & Students

Adam Shelton · May 6, 2021

The Supreme Court recently heard oral argument in Mahanoy Area School District v. B.L., a case about students’ off-campus speech rights. This case all stems from an ill-advised profanity-laced picture sent by a student to some of her friends on the social media platform “Snapchat.” The case addresses whether Tinker v. Des Moines Independent Community School District, which held that schools can regulate some student speech that takes place in school, allows schools to regulate speech which takes entirely outside of school or any school sponsored event. Tinker declared that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” but held that schools may regulate student speech when there is a reasonable forecast of substantial disruption to school activities. The case highlights the tensions between free speech and others’ educational rights, and the difficulty of applying older doctrines to previously unanticipated circumstances. Though the Justices seemed to think the school acted too harshly, they were clearly concerned about using this case to create binding precedent. Regardless of those concerns, the Court should take this opportunity to strengthen student speech rights, on- and off-campus.

The dispute arose when high schooler Brandi Levy shared a “snap” – a social media post that auto-deletes after 24 hours – including the words “f— school f— softball f— cheer f— everything” after she didn’t make the varsity cheerleading team. Another student showed the snap to a coach and Levy was subsequently suspended from the JV team. Levy’s message was entirely outside of school – she posted the snap on the weekend, using her personal phone, and outside of the cheerleading season. But because some of Levy’s classmates saw the snap and some of the cheerleaders mentioned it to the coaches, the school determined the snap had disrupted team cohesion and warranted punishment. The lower courts held that the resulting year-long suspension violated Levy’s free speech rights, with the Third Circuit rejecting the school district’s argument that Tinker permits schools to regulate some off-campus student speech.

At oral argument, the various advocates agreed that schools have some authority in disciplining students when student speech hinders other students’ educational rights. But they disagreed as to what the standard is for determining when that happens.

Representing the school district, Lisa Blatt argued that off-campus speech triggers Tinker because “such speech can cause on-campus disruption,” and that the approach advocated by Levy’s counsel – “a Frankenstein’s monster of First Amendment doctrines” – would create chaos. She explained that the requirements for the speech to have a nexus with the school and to cause substantial disruption would prevent school officials from abusing their authority and inhibiting too much speech. Blatt argued that, on social media, distinctions between on- and off-campus speech are illusory and what matters is whether the speech is targeted at a school audience and is on a school topic rather than whether it actually occurred at school. She also argued that if schools cannot punish off-campus student speech terrorizing others, they would be unable to address bullying.

The difficulty distinguishing between on- and off-campus speech seemed to resonate with Justice Thomas who commented that “on social media, where you post . . . doesn’t really matter.” Even so, some Justices found it difficult to distinguish between protected and regulable off-campus speech. Chief Justice John Roberts questioned whether a school could regulate a student’s social media post opposing a school bond funding referendum because a particular teacher was bad since such speech would be targeted at the school, be on a school topic, and may be harassing to a teacher but would, nonetheless, be political speech.

Representing the U.S. Solicitor General as amici in support of the school district, Malcolm Stewart argued that school districts may regulate some off-campus speech. Stewart explained that “school officials should be able to intervene to protect the interest of other [students]” and that “there is no meaningful causal link between the place from which an online communication is sent and the likelihood that it will disrupt school operations.” Justice Thomas asked Stewart whether, in determining if there was a substantial disruption, it would be enough for the disruption to be contained to the team rather than the school. Stewart responded that a disruption to the team would be enough. Justice Elena Kagan questioned the boundaries of the Solicitor General’s recommended approach, which seemed take an expansive view of what student speech could be considered regulable. Justice Kagan then engaged Stewart in her trademark rapid-fire hypotheticals, asking Stewart whether such exampled speech would be regulable. Stewart stated all of them were regulable school speech.

David Cole of the American Civil Liberties Union represented Levy. Cole argued that applying Tinker to off-campus speech would expand a narrow exception. It would turn an exception that only allows school officials to regulate student speech in limited circumstances into “a 24/7 rule that would upend the First Amendment’s bedrock principle and would require students to effectively carry the schoolhouse on their backs.” He used the example of a parent taking their child to a Black Lives Matter protest of the mistreatment of a classmate and the school subsequently punishing the child for posting a picture of the event to social media. He used this to argue that extending Tinker to off-campus speech may also interfere with parental rights to direct the upbringing of their children.

The Justices questioned Cole on the feasibility of a having a standard based on an on-/off-campus distinction in the context of social media. He replied that, contrary to the school district’s framing, their standard isn’t based on geography, but on whether the speech was made “under the school’s supervision or sanction” – a standard some Justices seemed to think is unclear. Cole was also questioned about the authority of schools to discipline students for off-campus bullying. Justice Sonia Sotomayor asked Cole why “severe or pervasive interpersonal aggression” would be an appropriate trigger for disciplining off-campus bullying since it is hard to determine when words are “aggressive.”

The oral argument highlighted why student speech cases can be difficult: Though students’ First Amendment rights are of utmost importance, they sometimes come into conflict with the educational rights of other students – an issue that is aggravated when technology erases the distinction between school and not-school. The majority in Tinker narrowed the ability of schools to regulate student speech because doing so served the pedagogical purpose of modeling our “relatively open, often disputatious society,” but precisely because of that openness these tensions can arise.

Perhaps because this case’s facts do not encompass those difficulties, the Justices seemed unwilling make a definitive pronouncement on these issues. Justice Samuel Alito noted the “huge gap between the broad and very important free speech issues that have been briefed and discussed . . . and the particular incident involved in this case.” Justices Stephen Breyer and Brett Kavanaugh also suggested a narrow ruling may be best. But the Court’s seeming unwillingness to resolve the larger issues here does not negate the fact that they are likely to arise again, and that students’ free speech rights remain on the line.

Although the oral argument suggests the ruling may be limited to the facts in the case, the Court should still take this opportunity to think through some of the issues that surfaced. There are at least three considerations the Court could address to ensure that student speech is protected.

First, the Court should reaffirm that student speech is presumptively protected, and that Tinker focuses on protecting student speech, not regulating it. At oral argument, the attorneys framed Tinker as primarily establishing the authority of schools to regulate student speech. In reality, Tinker emphasized the role of student speech in citizenship-building and held that student speech should only be regulated in limited circumstances. The Court has eroded this understanding – creating a series of exceptions for non-school sanctioned messages like drug-promoting or lewd speech. The Tinker standard has been so mangled that some lower courts allow discipline even for off-campus student speech that stimulates political participation.

For example, in Doninger v. Niehoff, the Second Circuit held in favor of a school that refused to allow a student to take office as senior class secretary as punishment for a social media post. In the post, the student asked readers to reach out to school administrators in support of a school event and described a member of the administration as a “douchebag.” Precisely because her advocacy was effective in engaging other students to contact the administration, the court held her conduct to be punishable under Tinker because her post “created a foreseeable risk of substantial disruption to the work and discipline of the school.” Such misapplications of Tinker’s student speech protective standard cannot stand.

Second, the Court should establish that when schools seek to regulate student speech on the grounds that the speech harms other students, the harm must be real rather than presumed. The harm must be more than mere dissatisfaction with the message proffered, as that would create a heckler’s veto. During argument, advocates in support of the school district mentioned scenarios – entirely divorced from the facts of the case – in which Levy continually harassed other students and coaches on social media. Such imagined circumstances cannot be appropriate grounds on which to silence student speech. For a school to punish student speech because it harms others, the school must articulate a concrete harm to identifiable individuals or groups.

Third, the Court should establish that student participation in extracurricular activities does not diminish speech protection. An issue that came up repeatedly at oral argument was whether Levy was subject to greater speech regulation than other students because she was a cheerleader. While the nature of some extracurricular activities may justify higher standards, student participation in such activities cannot be allowed to erode constitutional protections. The Supreme Court has already used extracurricular participation to justify the diminution of student rights in the Fourth Amendment context. In Vernonia School District 47J v. Acton, the Court held that, because of the decreased privacy expectation that student athletes have compared to the general student population, they may be subject to warrant- and suspicion-less drug testing. Seven years later it broadened that holding to apply to all competitive extracurriculars, regardless of privacy expectation. A similar erosion of students’ constitutional rights based on extracurricular participation – something practically required for students seeking competitive college admission or scholarship funding – cannot be allowed in the context of free speech.

Oral argument in Mahanoy Area School District showed that, while the particular dispute in the case may not be too difficult, the underlying issues are difficult and likely to arise in future cases. Unfortunately, some of the Justices telegraphed their unwillingness to engage with those difficulties at the moment. Nonetheless, we can hope that the Court affirms the Third Circuit and take steps to ensure student speech is protected.

Katrin Marquez is a Constitutional Law Fellow at the Institute for Justice.