About a week or so ago, the Supreme Court ruled 8-1 in the case of Mahanoy v. B.L., supporting the free expression rights of students who were operating outside of the schoolhouse gates and on their own time. We took a look at this decision at the time on the blog, picking through the outcomes of the case, but here’s a brief recap:
Brandy Levy was a cheerleader in 2017, when she dropped several F-bombs on Snapchat after failing to make the varsity squad. Although her social media post was done on a Saturday, at a local convenience store and caused no major school disruption, officials at Mahanoy’s high school penalized her by banning her from cheer activities for a year. When Levy and her parents were unable to get the school to reconsider this situation, they sued over the abridgment of free speech.
As with most major court decisions, a lot of the important content is in the nuances of the decision and what precedents the case can set for future situations. To help untangle what happened and what this case means, legal eagle Daxton “Chip” Stewart was nice enough to grant the blog an interview on this topic. Stewart is a full professor at Texas Christian University, where he teaches courses in media law. He has a Ph.D. in journalism from Mizzou and a JD from the University of Texas School of Law. He has also written “Social Media and the Law” and co-authored “The Law of Public Communication.”
Below is an edited transcript of the interview conducted a few days after the decision came down:
Before the ruling came out, what were you generally expecting the court to say in this case? In other words, did this ruling surprise you or was is something you saw coming?
“I want to say I saw this decision coming… I had a conversation about this a few days before I said, ‘Probably what the court is going do is extend Tinker to off campus speech in certain circumstances and that’s exactly what they did. So in a way I sort of saw that coming but I had a lot of fear and justified fear. Some of this was when the third circuit decision came out last summer, it was a great decision and I was gleeful about it.
“I’m working on a new edition of the social media law book and I thought, ‘This is great.’ We finally have a federal court of appeals saying off campus speech has First Amendment protection from administrator supervision and extra-curricular speech or extra-curricular activities are an extension of curricular activities so if you discipline somebody for doing something regarding extra-curricular activities like suspending them from the football team or the dance team, that’s a violation of the First Amendment. We didn’t have a decision say that clearly at this level before. So I loved that third circuit decision…
“So my fear was the Supreme Court doesn’t take up decisions to say, ‘Good job, Third Circuit! We agree.’ They take up decisions because they think there was some kind of error that needs to be resolved. So I was very worried that they were going to come in and strike down the Third Circuit opinion and basically do what they did in Morse versus Frederick, which is hedge or decide against the students. So going in my fear was the Supreme Court hadn’t ruled in favor of a student in 50 years. It was Tinker and then basically a lot of curbing and limiting Tinker… Case after case after case, it was someone saying, ‘Let’s extend Tinker here!’ and the court saying, ‘Nope.’
“So in that context with 50 years without a good pro-student, free-speech case, I was worried they’d go down that path again. And they didn’t and that surprised me.”
Aside from the ruling itself, did the 8-1 majority decision surprise you at all? It seems like most decisions are coming across as 5-4’s these days, so to have that number of justices on one side of a free-speech case… Was that surprising to you when you saw it?
“A little bit, yeah. I thought at least it would be 7-2 and the two being Alito and Thomas. We knew Thomas wasn’t going to agree. Thomas famously continues to say Tinker was wrongly decided… So my concern was that it was going to be a majority of Alito and Thomas, where they bring along the three Trump appointees to constitute a 5-4 majority…
That the eight could come together and agree that this kind of speech is protected was a very good thing to see. A little bit surprising, but a very good thing.
What’s your general sense of what this ruling says for free expression, particularly as it pertains to high school and maybe even college students? What are some key things people should be aware of when it comes to this ruling, either positive or negative in relation to free expression?
“Two things, really. One is explicit, one is implicit. The explicit is that the Tinker test is going to extend to off campus speech not during school activities. We saw in Morse versus Frederick, the ‘Bong Hits 4 Jesus’ case, that the SC said in that one, ‘Yes, this speech was off campus, it was an Olympic torch relay, but it was a school-sponsored activity, so the Tinker test applies here.’ The court had not gone so far as to say, ‘We’re going to extend it not only to off campus but also off campus, non-school activities.’
“In this case, it was a girl writing on Snapchat at the Cocoa Hut, a convenience store. So the Supreme Court says, ‘Yes, the First Amendment even applies there… Students still have free speech, First Amendment protections not just inside the school house gates but also off campus in their free time, in their non-school time, even if it might have on-campus implications.’ So the First Amendment extends out into the real world, 24-7 when it comes to schools disciplining student speech. That’s a great outcome.
“A better outcome might have been that schools have no authority to discipline students over external speech and that was kind of the coalition that Breyer built for his balancing test was to say, ‘OK, school administrators do have some rights to sanction off-campus, non-school speech if it’s going to have an influence on campus, like starting on campus disruption.’ They mention harassment and dangerous violence. All things considered, it’s a pretty good outcome.
“So that’s your explicit one: The Supreme Court saying, ‘We’re going to extend Tinker, off-campus, 24/7. School administrators, if they want to discipline students for what happens on non-school time, they have to pass the Tinker substantial disruption test.’ That’s a good outcome.
“As for the implicit one, it goes back to the Third Circuit decision, which says extra-curricular activities have value and can create an avenue for appeal for students who have been disciplines by those extra curricular activities.
“So, in this case, we’re talking about a student on the cheer squad or who didn’t make the cheer squad or whatever it was being punished. In the past we did not have a good decision in which the court said, ‘That’s protected by the First Amendment.’ You can’t just kick someone out of school for speech but you can take them off the dance team or the football squad because that’s not school.
“So the implicit one here is that even the cheer squad, having been suspended from the cheer squad… You have a right to sue for that. It’s valuable There’s a First Amendment harm. That’s where this is the only way this decision works is to recognize that extracurricular activities at schools are valuable and that you and sue if you lose the privilege to be on a team due to speech. That’s really, really valuable.”
Do you think this will at all deter schools from trying to clamp down on unpopular expression? Or will it continue to be business as usual for administrators and educators who want to suppress free speech?
“I do worry about that. You have what the law says, what the Supreme Court says and then you have what actually happens in practice. The cheer squad is going to have a policy, A football coach is going to have those rules and if you don’t like those rules, you’re going to have to be willing to go to court and sue over those rules. They’re still the boss and they don’t care about judges and courts. There is very little for them to lose due to qualified immunity where they say, ‘I thought I was doing the right thing.’ So, the law for public officials have that right.
“Practically, you’re still going to have basically speech codes and behavior codes that clearly restrict free speech rights. There are going to be dress codes, behavior codes and social media codes and people are going to be disciplined for them. It’s just going to be easier for them to sue and win now because it’s clear in every court in the country now. That’s great, but you’re still going to have to be willing to take on the expense of suing your school and hoping that four or five years later, you get a good decision.”
Usually when a court makes a free speech or free press ruling on a high school level, some college administrators think, “Hey, we can do that too!” and vice versa. Do you see this decision having any impact on colleges?
“What I expect and what I hope is that we already have a sliding scale where little kids have the least rights, college kids have the most rights. I sort of expect that whatever restrictions a HS can place on kids, it’s going to be hard for a college to do that.
“The thing in this case is that it uses Loco Parentis, which is asking how much room do we give the administrators in high school to act as parents to oversee the kids. I loved the line that said, ‘We highly doubt that BL’s parents gave the school the right to act in Loco Parentis at the Cocoa Hut.’ Private time, the school isn’t acting as a parent when she’s off campus. Well, once you’re adult, once you’re in college, you don’t have loco parentis because you’re adult. I don’t think this case will work in a college situation because you won’t have the loco parentis issue.”
If there were any big take away you think you would want people to have that we hadn’t discussed to this point, what would it be? What’s crucial that goes beyond the basics?
“When Breyer says why this is important, he uses that “Schools are the nurseries of democracy line.’ Breyer says that we need to understand that public schools are where students learn how to be good democratic citizens, good participants in a democracy. We need these places to educate people about the value of free speech. Free speech is necessary in these environments to build good citizens of our democracy and that includes speech we don’t like in some cases.
“This is something that a lot of free speech organizations and advocates like SPLC and FIRE have been pushing for years: If we have our high schools be places where administrators can act like petty tyrants when it comes to free speech, then the lesson students get is that it’s OK to be a tyrant over speech and they carry that into their college years and their adult lives. What they learn is that it’s OK to sanction speech you disagree with or don’t like…
“This is what petty tyrants do. They silence speech they don’t like. When it starts with principals and teachers telling students, “We’ve got the power and we can silence speech we don’t like,” students get that message and they live that out. That’s a real problem… We should be teaching our students to tolerate speech they disagree with, not punishing them for saying things we disagree with. And we should be leading by example.”