The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Students, the Supreme Court has held, do not "shed their constitutional rights to freedom of speech … at the schoolhouse gate." Even at school and in school-sanctioned and -supervised activities, students can't be punished for their speech unless (1) it's highly disruptive (Tinker v. Des Moines Indep. School Dist.), (2) vulgar (Fraser v. Bethel School Dist. No. 403), or (3) encourages illegal drug use in a nonpolitical way (Morse v. Frederick). ((4) Their speech in school-organized programs, such as school newspapers can also be restricted, Hazelwood School Dist. v. Kuhlmeier.)
But what if the students are speaking outside the schoolhouse gate, outside school-sanctioned and -supervised activities, and outside school publications? It's fairly well settled that exceptions (2) through (4) don't apply there, but what about (1)—what if off-campus speech causes on-campus disruption?
In yesterday's B.L. v. Mahanoy Area School Dist., Third Circuit Judge Cheryl Krause joined by Judge Stephanos Bibas held that such speech is fully protected, which is to say that it can't lead to discipline unless it falls within a First Amendment exception (such as for threats) or can otherwise be restricted under the same rules applicable to ordinary citizens. Other circuits, however, disagree. Here's the court's explanation, which strikes me as quite sound:
We hold today that 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….
From the outset, Tinker has been a narrow accommodation: Student speech within the school context that would "materially and substantially interfere[ ] with the requirements of appropriate discipline" is stripped of the constitutional shield it enjoys "outside [that] context." Tinker's focus on disruption makes sense when a student stands in the school context, amid the "captive audience" of his peers. But it makes little sense where the student stands outside that context, given that any effect on the school environment will depend on others' choices and reactions.
Recent technological changes reinforce, not weaken, this conclusion. Like all who have approached these issues, we are "mindful of the challenges school administrators face," including the need to manage the school environment in the digital age. We are equally mindful, however, that new communicative technologies open new territories where regulators might seek to suppress speech they consider inappropriate, uncouth, or provocative. And we cannot permit such efforts, no matter how well intentioned, without sacrificing precious freedoms that the First Amendment protects. The consensus in the analog era was that controversial off-campus speech was not subject to school regulation require that we adhere to that principle even as the speech moves online.
Holding Tinker inapplicable to off-campus speech also offers the distinct advantage of offering up-front clarity to students and school officials. To enjoy the free speech rights to which they are entitled, students must be able to determine when they are subject to schools' authority and when not. A test based on the likelihood that speech will reach the school environment—even leaving aside doubts about what it means to "reach" the "school environment"—fails to provide that clarity. The same is true for a test dependent on whether the student's speech has a sufficient "nexus" to unspecified pedagogical interests or would substantially disrupt the school environment.
But a test based on whether the speech occurs in a context owned, controlled, or sponsored by the school is much more easily applied and understood. That clarity benefits students, who can better understand their rights, but it also benefits school administrators, who can better understand the limits of their authority and channel their regulatory energies in productive but lawful ways.
Nothing in this opinion questions school officials'"comprehensive authority" to regulate students when they act or speak within the school environment. Tinker applies, as it always has, to any student who, on campus, shares or reacts to controversial off-campus speech in a disruptive manner…. The school can punish any disruptive speech or expressive conduct within the school context that meets Tinker's standards—no matter how that disruption was "provoke[d]." It is the off-campus statement itself that is not subject to Tinker's narrow recognition of school authority. But at least in the physical world, that is nothing new, and no one … has second-guessed that longstanding principle or suggested that a student who advocated a controversial position on a placard in a public park one Saturday would be subject to school discipline. We simply hold today that the "online" nature of that off-campus speech makes no constitutional difference.
Nor are we confronted here with off-campus student speech threatening violence or harassing particular students or teachers. A future case in the line of Wisniewski, D.J.M., Kowalski, or S.J.W., involving speech that is reasonably understood as a threat of violence or harassment targeted at specific students or teachers, would no doubt raise different concerns and require consideration of other lines of First Amendment law. Cf. Layshock (holding that the student's parody MySpace page was protected speech even though the school had deemed it "[h]arassment of a school administrator"); J.S (holding the same even though the school's principal had contacted the police to press harassment charges). And while we disagree with the Tinker-based theoretical approach that many of our sister circuits have taken in cases involving students who threaten violence or harass others, our opinion takes no position on schools' bottom-line power to discipline speech in that category.
After all, student speech falling into one of the well-recognized exceptions to the First Amendment is not protected, cf. Doe v. Pulaski Cty. Special Sch. Dist. (8th Cir. 2002) (en banc) (upholding a school's punishment of a student who wrote a threatening letter under the "true threat" doctrine); speech outside those exceptions may be regulated if the government can satisfy the appropriate level of scrutiny, cf. Oral Arg. Tr. 28 (exploring whether actions taken to prevent student-on-student harassment could satisfy strict scrutiny); and, perhaps most relevant, the Supreme Court has recognized that a sufficiently weighty interest on the part of educators can justify a narrow exception to students' broader speech rights, see Morse. We hold only that off-campus speech not implicating that class of interests lies beyond the school's regulatory authority.
True, our rule leaves some vulgar, crude, or offensive speech beyond the power of schools to regulate. Yet we return to Tinker and find in its pages wisdom and comfort:
"[O]ur Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society."
Tinker's careful delineation of schools' authority, like these principles, is no less vital even in today's digital age to ensure "adequate breathing room for valuable, robust speech." For these reasons, we hold that Tinker does not apply to off-campus speech and thus cannot justify the decision to punish B.L.
In this, the majority disagreed with other circuits:
Our sister circuits have approached this issue in three ways. One group applies Tinker where it was reasonably foreseeable that a student's off-campus speech would reach the school environment. That test sprung from trying circumstances: In Wisniewski ex rel. Wisniewski v. Board of Education (2d Cir. 2007), a student created an instant messaging icon showing "a pistol firing a bullet at a person's head, above which were dots representing splattered blood," and beneath which were the words "Kill Mr. VanderMolen," the student's teacher. That icon was visible to the student's "buddies," and he sent messages displaying it to fellow students. In upholding his suspension, the Second Circuit held that it was appropriate to apply Tinker because "it was reasonably foreseeable that the IM icon would come to the attention of school authorities," and that the violence-threatening speech satisfied Tinker's substantial disruption standard. The Eighth Circuit, in another case involving a threat of violence, took the same approach.
But from those cases involving threats of violence, the "reasonable foreseeability" standard spread far and wide. Multiple circuits have applied it in cases involving sexual or racial harassment. See C.R. ex rel. Rainville v. Eugene Sch. Dist. 4J (9th Cir. 2016); S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist. (8th Cir. 2012). And the Second Circuit has applied it in a case involving neither violence nor harassment: In Doninger, the court used it to assess the punishment of a student who urged others to contact a school official to protest a concert's postponement. The Eighth Circuit has likewise suggested that the standard governs all forms of off-campus speech, not just violent threats and harassment.
Another group of circuits applies Tinker to off-campus speech with a sufficient "nexus" to the school's "pedagogical interests." Kowalski v. Berkeley Cty. Schs. (4th Cir. 2011). Kowalski involved a student who created a MySpace page harassing a fellow student. In assessing the student's suspension, the Fourth Circuit emphasized that student-on-student harassment "can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide." Concluding that schools "must be able to prevent and punish harassment and bullying in order to provide a safe school environment," the court held that the speech bore a "sufficient nexus with the school" justifying Tinker's application. The Ninth Circuit has also applied the nexus test in a case involving off-campus sexual harassment.
Finally, some circuits have applied Tinker to off-campus speech without articulating a governing test or standard. See, e.g., Bell v. Itawamba Cty. Sch. Bd. (5th Cir. 2015) (en banc) (declining to "adopt a specific rule" but applying Tinker to a student who "intentionally direct[ed] at the school community [a] rap recording containing threats to, and harassment and intimidation of, two teachers"); Wynar v. Douglas Cty. Sch. Dist. (9th Cir. 2013) (declining to "divine and impose a global standard for … off-campus speech" but holding that Tinker reaches off-campus speech presenting "an identifiable threat of school violence")….
We sympathize with our sister circuits, which have faced the unenviable task of assessing students' free speech rights against the backdrop of "school officials' need to provide a safe school environment," … [but] we find their approaches unsatisfying in three respects.
First, "bad facts make bad law," and one unmistakable trend from the case law is that the most challenging fact patterns have produced rules untethered from the contexts in which they arose. The Second Circuit provides a case in point. It is understandable that the court in Wisniewski, focusing on the threat of violence bound up in the student's speech, upheld the school's authority to discipline him…. But in Doninger, the Second Circuit reflexively applied Wisniewski's reasonable foreseeability test to a fact pattern of a very different sort: a student's protest of a school's decision to postpone an event. What began as a narrow accommodation of unusually strong interests on the school's side, became a broad rule governing all off-campus expression. A similar dynamic took place with the "nexus" test, in that specialized concerns related to "harassment and bullying in the school environment" produced a rule making off-campus free speech rights depend on the speech's connection to a school's "pedagogical interests."
Second, and as a result of this expansionary dynamic, our sister circuits have adopted tests that sweep far too much speech into the realm of schools' authority. Start with reasonable foreseeability. Technology has brought unprecedented interconnectivity and access to diverse forms of speech. In the past, it was merely a possibility, and often a remote one, that the speech of a student who expressed herself in the public square would "reach" the school.
But today, when a student speaks in the "modern public square" of the internet, it is highly possible that her speech will be viewed by fellow students and accessible from school. And in some situations, it is a virtual certainty: Depending on the settings favored by that student's "friends" or "followers," her message may automatically pop up on the face of classmates' phones in the form of notifications from Instagram, Facebook, Twitter, Snapchat, or any number of other social platforms. Implicit in the reasonable foreseeability test, therefore, is the assumption that the internet and social media have expanded Tinker's schoolhouse gate to encompass the public square. That assumption is not one we can accept, though, because it subverts the longstanding principle that heightened authority over student speech is the exception rather than the rule….
The nexus test suffers from similar overbreadth. In holding that schools have regulatory authority over any speech, whether on or off campus, that "interfere[s] with the work and discipline of the school," it collapses Tinker's scope of application and rule into one analytical step. The result is tautological: Schools can regulate off-campus speech under Tinker when the speech would satisfy Tinker. And the effect is to erase the dividing line between speech in "the school context" and beyond it, a line which is vital to young people's free speech rights. Worse, in extending Tinker wherever there is a "nexus" to "pedagogical interests," the test raises the specter of officials' asserting the power to regulate "any student speech that interferes with [the] school's educational mission," a power that "can easily be manipulated in dangerous ways."…
Third, other circuits' approaches have failed to provide clarity and predictability….
Judge Thomas Ambro concluded that it was unnecessary to decide the broad question, because the student should clearly win even under Tinker. (The majority thought the Tinker analysis wouldn't be so clear, so they thought it best to decide whether Tinker even applied in the first place.)
[O]urs is the first Circuit Court to hold that Tinker categorically does not apply to off-campus speech. A few Circuits have flirted with such a holding and have declined to apply Tinker to off-campus speech on a case-by-case basis. See, e.g., Porter v. Ascension Par. Sch. Bd. (5th Cir. 2004) (declining to apply Tinker where student at home drew a picture of school being attacked, and that picture inadvertently ended up on campus, because it was off-campus speech not directed at the school and the student took no step to bring the speech on campus); Thomas v. Bd. of Educ. 1 (2d Cir. 1979) (holding that school violated students' speech rights by suspending them for publishing an underground lewd newspaper that was printed and distributed off campus, even if an occasional article was composed on campus, because the newspaper was "off-campus expression"). However, those same Circuit Courts have subsequently applied Tinker to off-campus speech….
I fear that our decision will sow further confusion. For example, how does our holding apply to off-campus racially tinged student speech? Can a school discipline a student who posts off-campus Snaps reenacting and mocking the victims of police violence where those Snaps are not related to school, not taken or posted on campus, do not overtly threaten violence and do not target any specific individual, yet provoke significant disruptions within the school? Hard to tell. We promulgate a new constitutional rule based on facts that do not require us to entertain hard questions such as these.
I would think, by the way, that the majority's approach would indeed protect "off-campus racially tinged student speech" (unless it falls within a First Amendment exception, such as for true threats, or perhaps targets particular students for insults). The majority reasons, after all, that it's proper to "leave some vulgar, crude, or offensive speech beyond the power of schools to regulate" because "our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society." Surely that's true for "racially tinged" speech (and even "mocking the victims of … violence," "police" or otherwise) as well as for speech on other subjects and with other viewpoints.
Here, by the way, are the facts of the case, though I didn't dwell on them because the court's reasoning is much broader than that:
Appellee B.L. failed to make her high school's varsity cheerleading team and, over a weekend and away from school, posted a picture of herself with the caption "fuck cheer" to Snapchat. She was suspended from the junior varsity team for a year and sued her school in federal court. The District Court granted summary judgment in B.L.'s favor, ruling that the school had violated her First Amendment rights. We agree and therefore will affirm.
One other important conclusion on the panel's part (all three judges endorsed this) was that the First Amendment protected against removal from extracurricular activities and not just expulsion or suspension:
Yes, students have "a reduced expectation of privacy" under the Fourth Amendment when they participate in extracurricular athletics. Vernonia Sch. Dist. 47J v. Acton (1995)…. [But i]n the Fourth Amendment context, "the ultimate measure of the constitutionality of a governmental search is 'reasonableness,'" a standard which "is judged by balancing [the search's] intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." The First Amendment, however, abhors "ad hoc balancing of relative social costs and benefits." That line dividing First from Fourth Amendment doctrine is foundational, and we will not blur it here….
The School District next offers up an analogy: that students who join extracurriculars "represent their schools much in the way that government employees represent their employer." So by going out for the team, it posits, students subject their speech rights to coaches' whims so long as their speech does not involve "a matter of public concern."
This argument, however, depends on dicta from the Sixth Circuit, which went on to clarify that it was not "grafting a public concern requirement onto" student speech doctrine and had invoked the Pickering doctrine only to discuss whether "disruption will occur when a subordinate challenges the authority of his or her superior." See Lowery v. Euverard (6th Cir. 2007). And neither "the Supreme Court nor any other federal court of appeals has held [the personal matter/public concern] distinction applicable in student speech cases." … [S]tudents' free speech rights are not limited to matters of public concern.
What was "unseemly and dangerous" about … efforts to … [restrict] off-campus speech [is] not the punishments the students received, but that those punishments were used to "control" students' free expression in an area traditionally beyond regulation. Those concerns apply with equal force where a school seeks to control student speech using even modest measures, much less participation in extracurricular activities, which "are an important part of an overall educational program." Thus, whatever the school's preferred mode of discipline, it implicates the First Amendment so long as it comes in response to the student's exercise of free speech rights.
The majority acknowledged that it was disagreeing on this point with Doninger ex rel. Doninger v. Niehoff (2d Cir. 2008).