The Supreme Court ruled Wednesday that schools cannot regulate students’ off-campus speech in the same manner as if the speech happened on campus, giving free-expression advocates an important precedent in today’s social media age. In an 8-1 decision on the case of Mahanoy Area School District v. B.L., the Court affirmed a lower court’s ruling that the school infringed upon the First Amendment rights of Brandy Levy when it attempted to suspend her from the cheer-leading squad.
We talked about this case at length when the Court heard arguments back in April, but the short version is this: In 2017, Levy didn’t make the varsity cheer squad and took to Snapchat to F-bomb the process and her school. The snap was done outside of school and on her own time, deleted shortly after it was posted and caused no major problems at the school. Still, the school decided to suspend her from team activities for a year. When an agreement couldn’t be reached to undo the punishment, she and her parents sued the school.
Writing for the majority, Justice Stephen Breyer made three key points that should help free-expression advocates in the future:
- While the school has an interest in the activities of the students while they are off campus, it is the parent, not the administrator, who makes the rules for the kids (and dispenses the punishments) when the kids aren’t in school. Thus, if the parents are cool with a kid spending the weekend dropping F-bombs on Snapchat, the school will just have to cope.
- If the school had won this case, it would essentially have the right to monitor student speech and punish students for it on a 24/7 schedule. That could give students ZERO opportunities to free expression that was not school approved for the entirety of their academic careers. If Tinker established that students don’t shed their Constitutional rights by entering the schoolhouse gates, students sure as heck shouldn’t shed them by the mere dint of being of school age.
- Schools have a vested interest in allowing free speech of the students, so that they can learn how to contribute to the marketplace of ideas. In other words, if you don’t give them the chance to learn how to do this, they’ll never do it well.
Breyer also noted that there were already ruling on the books that would deal with concerns the school had regarding issues like fighting words, true threats and bullying, also saying this didn’t rise to that level.
Despite the pro-student ruling, some journalists noted that this ruling didn’t provide a decisive blow for free expression:
B.L. offered the justices an opportunity to announce a single unifying rule that would govern all free speech cases involving off-campus speech by public school students. But the Court dodged that opportunity.
The reason is that it is quite difficult to come up with such a unifying rule. Though Breyer’s opinion holds that Levy’s school went too far when it punished her, he also acknowledges that there may be examples of off-campus speech that should be punished by public schools — including cases of “serious or severe bullying or harassment targeting particular individuals” or “threats aimed at teachers or other students.”
I can see the point there, but let’s consider a few key points:
- Free speech won on this one, despite the “Suicide Squad” style case we were dealing with here. Nobody likes a mouthy teen, so the fact that people the age of Levy’s parents and grandparents stood up for her right to F-bomb the universe says something important about the rule of law and the protections of the First Amendment.
- It was an 8-1 ruling. Justice Clarence Thomas wrote a dissent that I’m still not clear on, but he stood alone. (I’m interviewing a legal expert for next week’s post, so I’ll try to get an answer on that.) I was thinking if we won at all on this one, it would be a 5-4. Getting eight of nine of these people to agree on anything from free speech to which D.C. restaurant has the best egg rolls is a miracle of modern man.
- It establishes some ground to prevent school districts from trying to write rules that allow them to regulate social media and off-campus speech. Sure, they can give it a shot now, but this ruling gives free-speech advocates a pretty heavy bat to swing back.
To close up, here are a few tidbits that I loved:
Give Me Freedom AND Give Me Cocoa Hut: It was great watching the nine most revered legal minds in our country today issue an opinion with multiple F-bombs in it. It was also great having them dissect the use, tenets and purpose of Snapchat in a decision as well. However, I loved this section most of all, in which they explained the school’s lack of loco parentis on behalf of B.L. when she made the post:
“B. L. spoke under circumstances where the school did not stand in loco parentis. And there is no reason to believe B. L.’s parents had delegated to school officials their own control of B. L.’s behavior at the Cocoa Hut.”
I want a “Loco Parentis at the Cocoa Hut” T-shirt…
Drama? We’re talking about DRAMA? I’m sure legal scholars will have a serious set of debates regarding the lack of a bright line established in the following paragraph, regarding the necessary level of academic disruption to allow for the punishment of off-campus speech:
Third, the school presented some evidence that expresses(at least indirectly) a concern for team morale. One of the coaches testified that the school decided to suspend B. L., not because of any specific negative impact upon a particular member of the school community, but “based on the fact that there was negativity put out there that could impact students in the school.” App. 81. There is little else, however, that suggests 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. As we have previously said, simple “undifferentiated fear or apprehension . . . is not enough to overcome the right to freedom of expression.” Tinker, 393 U. S., at 508.
Me? I’m the parent of a high school cheerleader and I can tell you unequivocally that EVERYTHING on the face of the PLANET could be covered by the school’s claim regarding diminution of morale vis a vis the cheer squad.
The drive home from practice every night is a play-by-play of who is ignoring whom on Snapchat(“Leaving people unread is so much drama,” I have been told…) or who is saying who isn’t putting in enough effort or who is skipping practice to be with her boyfriend or who is calling whom a “hoe” today because… well… they’re just a FRESHMAN and they sent a Snap to someone else’s boyfriend and shouldn’t have…
The school might have been better off just saying, “Look, if they’re breathing and on the cheer squad, we have jurisdiction over them” rather than trying to claim a cheer squad could be drama free.
Don’t Hate the Snap, Hate the Quadratic Equation: What leads to a “substantial disruption” of school activities is a key trigger to allow for schools to suppress student speech. The school’s claim of such disruption was discussed at this point in the ruling:
[T]he school argues that it was trying to prevent disruption, if not within the classroom, then within the bounds of a school-sponsored extracurricular activity. But we can find no evidence in the record of the sort of “substantial disruption” of a school activity or a threatened harm to the rights of others that might justify the school’s action. Tinker, 393 U. S., at 514. Rather, the record shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class “for just a couple of days”
I remember algebra courses quite well and I can guarantee that I would have gladly discussed ANYTHING to kill off 5-10 minutes of that class period. I somehow doubt we can lay the blame on Levy for this here.