U.S. Supreme Court Issues Guidance on Off-Campus Speech, but Whether the Decision Will Spur Bolder Off-Campus Speech and to What Extent That Speech Can Still be Regulated are Lingering Questions
On June 23, 2021, the United States Supreme Court issued a decision in one of the most pivotal First Amendment cases to reach the high court in recent memory, siding with a former cheerleader who verbally bashed her school in a profanity-laced Snapchat post. The case, Mahanoy Area School District v. B.L., 594 U.S.__ (2021), marked the first opportunity the Supreme Court has had to comment upon a school board’s efforts to regulate off-campus speech. And, while it resulted in a victory for the student – Brandi Levy – it also left unresolved the broader question faced by school boards nationwide, namely, under what circumstances can schools regulate off-campus speech consistent with the Court’s 1969 decision in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969).
In 2017, Brandi Levy was a fourteen year old who failed to make the varsity cheer team at the end of her freshman year at Mahanoy Area High School, a public school in Mahanoy City, Pennsylvania. That weekend she and a friend visited a local convenience store where Levy used her smartphone to post a photo of herself and her friend to Snapchat. The photo showed Levy and her friend with their middle fingers raised, and bore the caption: “F— school f— softball f— cheer f— everything.” Another student saw the Snapchat post and showed her mother, who was a cheerleading squad coach at the high school. After discussing the matter with the school principal, the coaches decided that because the posts used profanity in connection with a school extracurricular activity, it violated team and school rules. As a result, Levy was suspended from the junior varsity cheer squad for the upcoming year.
II. Levy Takes the School District to Court
After the school’s athletic director, principal, superintendent, and school board, all affirmed Levy’s suspension from the team, Levy and her parents filed a lawsuit in the Federal District Court for the Middle District of Pennsylvania. The District Court found in Levy’s favor and issued a temporary restraining order and preliminary injunction ordering the school to reinstate Levy to the cheerleading team. The court also granted Levy’s subsequent motion for summary judgment, finding the Snapchat post had not caused substantial disruption to the school, a standard first set forth by the Supreme Court in Tinker, supra, which permits schools latitude in regulating speech without running afoul of the First Amendment if the speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” 393 U.S. at 513.
On appeal, a panel of the Third Circuit affirmed the District Court’s conclusion, and in doing so circumscribed the Tinker holding as not applying to off-campus speech, which the Third Circuit defined as “speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.” B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170, 189 (3d Cir. 2020). The Third Circuit reasoned that, since Levy’s speech took place off campus, the considerable leeway afforded to schools by Tinker did not apply to the Mahanoy Area School District in this case.
III. The Supreme Court Affirms While Chiding the Third Circuit’s Reasoning
In an 8-1 opinion, the Supreme Court affirmed the Third Circuit’s decision, but rejected the reasoning that Tinker applies only to on-campus speech, since such a rule “would deny the off-campus applicability of Tinker’s highly general statement about the nature of a school’s special interests. Particularly given the advent of computer-based learning [.]” To the contrary, Justice Breyer, writing for the majority, observed that “[t]he school’s regulatory interests remain significant in some off-campus circumstances.” And, while the Court also refused to endorse any particular list of activities that would constitute “off-campus” speech, it did find three features of off-campus speech that distinguish it from on-campus speech and the corollary rationale for giving schools leeway in regulating the latter. First, that in relation to off-campus speech, the school will rarely stand in loco parentis. Second, that the regulation of off-campus speech coupled with that of on-campus speech would essentially encompass anything a student utters 24 hours a day. And, third, that the school itself has an interest in protecting a student’s unpopular expressions.
In the context of Levy’s case, the Court pointed to a number of factors that supported the Third Circuit’s decision, albeit without going so far as to limit Tinker’s holding. Specifically, the Court noted that Levy’s posts appeared outside of school hours, from a location outside of school, the school was not identified in her post, nor was any member of the school community targeted. Similarly, the Snapchat was transmitted through a personal cellphone to a private circle of Levy’s Snapchat friends. All of these, the Court found “diminish[ed] the school’s interest in pushing [Levy’s] utterance.” The Court also found unavailing any greater interest of the school in regulating this particular speech, again harping on the fact that Levy had posted the Snapchat outside of school on her own time and under circumstances where the school did not stand in loco parentis.
IV. Lingering Issues But Some Takeaways
The Court’s decision in Mahanoy Area School District comes at an appropriate time as school boards wrangle with new issues spawned by the advent of virtual learning and the ongoing cyber-bullying epidemic. While a bright-line application of Tinker to purely “on-campus” speech would have certainly provided more guidance, the fact-intensive inquiry endorsed by the Court illustrates an awareness that the evolving ways students communicate amongst themselves and with their educators may require some leeway for schools to regulate off-campus speech in certain circumstances. Just what those circumstances are is an open question for school boards who may find themselves faced with a decision to make similar to the one made by the Mahanoy Area School District. But, some points can be taken from the Court’s decision that may help guide those determinations. For one, did the speech occur off-campus but during a school-sponsored event where the school was acting in loco parentis? Or, did the speech occur on, or was it transmitted through, school-issued technology? Additionally, did the speech target a member of the school or its faculty, as opposed to the general nature of Levy’s speech? While none of these factors may be singularly dispositive, the majority’s reasoning at least suggests that these are important considerations that may elevate a school’s regulatory interest over a student’s First Amendment protections.