Cheerleader case presents free-speech test for public schools

One of the Supreme Court’s landmark First Amendment cases could be redefined early this summer as the justices decide a modern issue: Can a public-school student face discipline for remarks made away from school on a social media platform?

The landmark case in question is Tinker v. Des Moines Independent Community School District from 1969. Mary Beth Tinker, John Tinker, and Christopher Eckhardt, public school students in Des Moines, Iowa, wore black armbands to school to protest the Vietnam War and were suspended. The students sued the school arguing that through the school’s disciplinary action their rights of free speech were being violated.  

Writing for a 7-2 majority, Justice Abe Fortas ruled on behalf of the students and famously said public school students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, the court also gave school administrators broad powers to prevent conduct that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

Since Tinker, a series of decisions further defined the ability of public-school officials to limit student speech in order to avoid such disruptions. In Bethel School District v. Fraser (1986), the court by a 7-2 majority said a public high school student couldn’t use sexually explicit language at an assembly, while in Hazelwood v. Kuhlmeier (1988) the court by a 5-3 majority said public high school officials could censor a student newspaper if needed. And in Morse v. Frederick (2007), a divided Supreme Court said school officials could restrict student free speech if it was seen reasonably as promoting illegal drug use, with Chief Justice John Roberts writing for a 5-4 majority.

Those decisions dealt with actions taken by students physically on campus or within a school, or at a school-related event. Since 2007, public school leaders have faced a new challenge: student speech expressed on social media outside of school. There have been challenges in federal district court, including cases in recent years involving bomb threats made on social media by a student and a student expelled for operating a racist Instagram account that targeted other students and school personnel. In most cases, the school administrators prevailed.

However, the case in front of the court now, Mahanoy Area School District v. B.L., which will be heard in late April 2021, involves several facets of other lower court cases and it could define how public-school administrators monitor and discipline students who are not at school.

A public-school student, named “B.L.” in the lawsuit brought by her parents, was a member of the Mahanoy Area High School’s junior varsity cheerleading team. After B.L. did not make the varsity cheer squad as a sophomore, she and a friend were at a convenience store on a Saturday. B.L. and her friend posted an image on Snapchat with their middle fingers extended and a caption using obscenities about the cheerleading program and the high school. A second post expressed disappointment about not making the varsity team.

About 250 people were in B.L.’s Snapchat group, and news of the posts, along with a screenshot, made their way to the cheerleading team’s coaches. Citing team and school rules, the coaches removed B.L. from the cheerleading team for the season. B.L. and her parents appealed to school administrators, who agreed with the coaches.

B.L.’s parents sued on her behalf and the case was heard by the Third Circuit Court of Appeals after a lower court ruled in favor of the student. The Third Circuit majority said a critical question was the location where B.L. made her obscenity-laden “Snap” on Snapchat. It cited a recent Supreme Court decision, Packingham v. North Carolina (2017) and two Third Circuit decisions supporting the argument that B.L.’s messages—called “Snaps”—were “off-campus speech.” In a 2-1 decision, Judge Cheryl Ann Krause, joined by Judge Stephanos Bibas, wrote that “that Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”

Judge Thomas Ambro agreed with the overall judgment but dissented from the majority’s opinion about Tinker excluding off-campus speech. “There are no facts before us to draw a clear and administrable line for this new rule that Tinker does not apply to off-campus speech,” Ambro wrote. “The case before us is straightforward—B.L.’s Snap is not close to the line of student speech that schools may regulate” under Tinker and its related cases. Ambro believed B.L.’s acts did not cause “substantial disruptions,” and the coaches testified in court they didn’t expect the actions “would substantially disrupt any activities in the future.”

In Mahanoy Area’s appeal to the Supreme Court, its attorneys presented one question to the justices to decide: Whether Tinker applies to student speech that occurs off campus. Its petition noted that lower federal courts were divided on the question and it was important for the justices to decide if schools could regulate any off-campus speech under Tinker. Mahanoy Area also has argued that the Third Circuit majority’s decision was wrong. “Both the First Amendment and schools’ pedagogical missions focus on people, not property. What matters is whether the speech involves the school community, not whether a student is three feet on or off campus,” it said in a subsequent brief.

The American Civil Liberties Union, representing B.L., has asked the court to uphold the Third Circuit ruling on the grounds stated by Judge Ambro, and has argued that expanding Tinker beyond the schoolhouse gates could “seriously undermine” students’ First Amendment rights; but if the court chose that route, there would need to be narrow rules for schools to follow.

The justices will hear arguments on April 28, 2021. The decision will be closely watched because the court may need to address Tinker, the role of social media as a platform for student free speech, and the bounds of free speech in general online.

Scott Bomboy is the editor in chief of the National Constitution Center.