Summary of Decision
The United States Supreme Court found that the Mahanoy Area School District violated B.L’s, a student of the school district, First Amendment rights when the school improperly regulated her off-campus speech. B.L. posted vulgar images and words on the social media platform “Snapchat” after school hours and at a local business, in frustration for not making the varsity cheerleading team. Other players shared B.L.’s posts with the cheerleading coach, who suspended B.L. from the junior varsity cheer squad. The U.S. Supreme Court found that while schools can sometimes regulate off-campus speech if it meets the Tinker threshold, the speech in this case did not rise to the level of Tinker, and the school improperly regulated B.L.’s speech.
A full copy of the above decision is available at the following link:
Mahanoy Area School District v. B.L, 141 S.Ct. 2038 (2021)
A detailed summary of the decision of the U.S. Supreme Court in this matter is set forth hereafter.
At the end of her freshman year, B.L tried out to be on her school’s varsity cheerleading team and for right fielder on the softball team. However, B.L did not make the varsity team, though was offered a spot on the junior varsity team, and also did not get the softball position she tried out for. Following this, B.L and her friend went to a local store and posted two images over “Snapchat,” a social media platform where a user can post temporary photos for those who are “friends” to see and then they disappear after a certain time frame. B.L posted images to her “story” to express her frustration about her extracurricular involvement. These posts contained vulgar language and gestures criticizing both the school and its cheerleading system, specifically images of her & a friend with their middle fingers raised with the caption “F*ck school f*ck softball f*ck cheer f*ck everything.” After learning about the posts, cheerleaders were “visibly upset” about the posts seen through B.L’s social media, and Mahanoy School District suspended her from the team for 1 year for violating team and school rules after the posts were shared by students with the cheerleading coach. B.L and her parents sought relief in Federal Court arguing that the punishment from her school violated her First Amendment rights, and an injunction was granted to reinstate B.L. to the cheerleading team.
The District Court found that the School District’s punishment violated her First Amendment rights because the Snapchat image she posted did not cause a substantial disruption to the school. The Third Circuit also affirmed this decision, but went even further and found that Tinker does not apply to off-campus speech.
While the United States Supreme Court affirmed the Third Circuit’s decision, however, noted different reasons for doing so. The Supreme Court rejected the Third Circuit’s conclusion that schools cannot regulate off-campus speech and stated that “the school’s regulatory interests remain significant in some off-campus circumstances.” The Court fell back on the Tinker principle, emphasizing that schools may regulate speech that “materially disrupts class-work or involves substantial disorder or invasion of the rights of others” and that this can include off-campus speech. The Court noted certain types of behavior that may warrant school regulation under Tinker, such as serious bullying, threats at teachers or students, failure to follow rules etc., but explicitly stated that it was not setting forth a rule for off-campus speech. Rather, it emphasized that B.L’s speech is an example of when off-campus speech should not be regulated by the hands of the school. The Court also warned that off-campus speech is harder for schools to regulate than on-campus speech, as (1) schools will almost never be in loco parentis for students off-campus; (2) trying to regulate speech off-campus would mean a 24 hour regulation on student speech; and (3) schools have an interest in fostering unpopular opinions as schools are the nurseries of democracy. As a result, regulation of off-campus speech will always be harder for schools to justify and that they have little leeway to regulate off-campus speech.
B.L’s speech was off-campus and did not amount to any fighting words, nor did it target the school or any specific faculty or student. Conclusively, B.L’s speech was through a cell phone to only her private friends, and therefore diminished the school’s interest in punishing her post. Additionally, there was no evidence of any substantial disruption of a school activity or a threatened harm to the rights of others. Finally, simple undifferentiated fear or apprehension is not enough to overcome the right to freedom of expression, much like the cheerleading coach had for the “team’s morale”. The Court further concluded that there are times where it may be necessary to protect the “superfluous” and encourage the marketplace of ideas even if that means hearing people’s unpopular belief.
Assisted by Emily Shapiro, Summer Associate of Klein, Thorpe and Jenkins, Ltd. (picture unavailable)