Supreme Court narrowly protects student free speech online

In a closely watched decision, the Supreme Court ruled on Wednesday that a public school student’s off-campus Snapchat rant was protected free speech and she had been wrongly suspended by school administrators.

In Mahanoy Area School District v. B.L., Justice Stephen Breyer, writing for an 8-1 majority of the Court, concluded that “it might be tempting to dismiss [the student] B. L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

The decision is also noteworthy for listing what student actions are not protected by the First Amendment outside of the schoolhouse gate. Still, Justice Breyer’s opinion, along with a concurrence from Justice Samuel Alito, makes it clear that public school officials, acting in place of a student’s parents, lack the unlimited power to regulate student speech about school matters outside of a school’s physical or virtual campus.

The student in question, a former high school cheerleader called B.L. in court documents, was suspended from her junior varsity squad at Mahanoy Area High School in Pennsylvania. B.L. made a series of generalized obscene comments about cheerleading and school in general after she didn’t make the varsity squad. The pictures and comments on Snapchat became known to school officials after B.L. made the statements off campus, on a weekend, at a local convenience store.

The case made it to the Third Circuit Court of Appeals, where a divided panel ruled the school district lacked any jurisdiction over student off campus behavior.

On Wednesday, Breyer and seven other justices rejected that idea, or the concept that public school officials could not regulate any student conduct, in person or virtually on the Internet or mobile devices. Instead, the court acknowledged that schools could have a substantial interest in regulating certain kinds of off-campus conduct. But Breyer then went on to list three distinguishing features of free speech protections for public school students and boundaries for public school officials online or off campus as opposed to on campus.

“First, a school will rarely stand in loco parentis when a student speaks off campus,” said Breyer. (The phrase in loco parentis means in the place of a student’s parents or legal guardians.)

“Second,” Breyer wrote, “from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means 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.”

Finally, Breyer said that “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy.”

In B.L.’s specific case, Breyer stated that her conduct did little “to suggest a substantial interference in, or disruption of, the school’s efforts to maintain cohesion on the school cheerleading squad,” rejecting claims made by Mahanoy Area School District’s attorneys.

However, the court made it clear there were some areas when school administrators could discipline students for their off-campus conduct. These areas, Breyer argued, included “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.”

Breyer’s opinion also made it clear that these examples were not an exhaustive, detailed list of permissible off-campus speech. “Particularly given the advent of computer-based learning, we hesitate to determine precisely which of many school-related off-campus activities belong on such a list,” Breyer wrote. “We do not now 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 to a school’s special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community.”

Justice Alito noted the decision’s importance as an attempt to regulate student off-campus speech. “The overwhelming majority of school administrators, teachers, and coaches are men and women who are deeply dedicated to the best interests of their students, but it is predictable that there will be occasions when some will get carried away, as did the school officials in the case at hand,” Alito said. “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.”

Justice Clarence Thomas dissented from the court’s majority opinion. He argued that a historical interpretation of the school’s ability to discipline students, as understood at the time of the 14th Amendment’s ratification, permitted the school to suspend B.L. from the cheerleading squad.

The Mahanoy Area School District decision is the first major Supreme Court decision to favor a student’s free speech rights against school administrators since 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 in Tinker 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, three major Supreme Court decisions defined the ability of public-school officials to limit student speech in order to avoid such disruptions.

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