Can a public school punish a student for an off-campus social media post? Or does the First Amendment protect student speech that occurs outside of school grounds and school-sponsored functions?
The U.S. Supreme Court tackled those questions this week during oral arguments in Mahanoy Area School District v. B.L. The case arose in 2017 when a high school freshman and junior varsity cheerleader who had failed to make the varsity squad vented her frustration on the social media site Snapchat. The student—known by the initials B.L.—posted a picture of herself and one of her friends with their middle fingers raised. The post went up on a Saturday and was accompanied by the message "fuck school fuck softball fuck cheer fuck everything." B.L. was kicked off the team for a year after a coach saw the post and took offense.
In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court said that school officials may not interfere with students' First Amendment rights on school grounds unless the speech "would materially and substantially interfere with the requirements of appropriate discipline and in the operation of the school."
Lisa Blatt, the attorney for the Mahanoy Area School District, urged the Supreme Court to apply the Tinker standard to student speech that occurs off-campus if the speech may cause an "on-campus disruption." According to Blatt, "the internet's ubiquity, instantaneous and mass dissemination, and potential permanence make the speaker's location irrelevant."
American Civil Liberties Union (ACLU) lawyer David Cole, the attorney for B.L. and her parents, told the Court that the school's approach "would require students to effectively carry the schoolhouse on their backs in terms of speech rights everywhere they go." For example, Cole said, "a father shouldn't have to worry that if he brings his daughter to a Black Lives Matter protest about mistreatment of a black student at school, and she posts a photo on Facebook, she might be suspended based on potential disruption at the school."
Several justices seemed to be concerned about that very thing, asking whether the school's approach would result in students getting punished for talking about politically controversial topics. Justice Samuel Alito offered this hypothetical:
A student believes that someone who is biologically male is a male, and there is a student who is biologically male but identifies as a woman, has adopted a female name, but the student who has the objection refers to this person by the person's prior male name and uses male pronouns. Can the school do something about that?
Justice Elena Kagan made a similar point while questioning Deputy Solicitor General Malcolm L. Stewart, who appeared as an amicus in support of the Mahanoy Area School District. Say a student emails her classmates "that they should refuse to do any work for English class until the teacher changes the syllabus to include more authors of color."
That's "school speech," Stewart answered. "So that can be punishable," Kagan replied, sounding surprised. It can be punished "if it causes substantial disruption" at school, the government attorney answered.
ACLU lawyer Cole came in for his share of grilling too. In particular, several of the justices seemed concerned that his preferred approach would leave school officials with no tools to stop online bullying and similarly abusive behavior among students.
Cole responded by stressing the need for "clear definitions of off-campus bullying and harassment consistent with First Amendment principles." He concluded by reminding the Court that the school punished this particular student "for a momentary expression of frustration on a weekend out of school." To let that be the rule, he said, "would teach students they can never speak candidly with their friends without worrying that a school official will deem their views potentially disruptive and suspend them or punish them. That is exactly the wrong lesson to teach."
A decision in Mahanoy Area School District v. B.L. is expected by late June.