The Supreme Court's Next Big Free Speech Showdown

May public schools punish students for off-campus social media posts?

In Tinker v. Des Moines Independent Community School District (1969), the U.S. Supreme Court forbade public school officials from punishing students for exercising their First Amendment rights on school grounds unless the speech at issue "would materially and substantially interfere with the requirements of appropriate discipline and in the operation of the school." In the coming months, the Court will hear arguments in a new case that asks whether that rule should be interpreted to allow school officials to punish students for certain off-campus social media posts.

The case of Mahanoy Area School District v. B.L. originated in 2017 when a then-high school freshman and junior varsity cheerleading team member took to the social media site Snapchat in order to complain about her failure to make the varsity cheerleading squad. The student—known by the initials B.L. in court filings because she is a minor—posted a picture of herself and one of her friends with their middle fingers raised. The post went up on a Saturday. Its accompanying text read "fuck school fuck softball fuck cheer fuck everything."

That post soon came to the attention of a cheerleading coach, which led to B.L.'s suspension from the team. The question before the Supreme Court is whether the school may discipline her for such speech without running afoul of the First Amendment.

The U.S. Court of Appeals for the 3rd Circuit ruled that the school was prohibited from dishing out such punishment for such constitutionally protected speech. "Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school's imprimatur," the appeals court held.

The Mahanoy Area School District wants SCOTUS to reverse that ruling. Social media and related new technology act "as a megaphone for off-campus speech, ensuring that it reverberates throughout the classroom and commands the school's attention," the school and its lawyers told the justices. But thanks to the 3rd Circuit, school officials have been left with no authority "to discipline students for off-campus speech, no matter how obvious it is that the speech is directed at the school and will significantly disrupt the school environment."

B.L. and her lawyers counter that the case is a matter-and-shut application of the First Amendment. "In a weekend comment in an evanescent Snapchat message," they told the justices, "B.L. swore in expressing her disappointment at not making the varsity team to her friends. The notion that a school can discipline a student for that kind of spontaneous, non-threatening, non-harassing expression is contrary to our First Amendment tradition, and finds no support in this Court's student speech cases."

Oral arguments in Mahanoy Area School District v. B.L. have not yet been scheduled.