The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Supreme Court Protects Students' "Political or Religious Speech" Outside School
The Court doesn't set forth a categorical rule protecting such speech, but strongly suggests that such speech is normally protected by the First Amendment—and defines political speech broadly, to include criticism (even vulgar criticism) of school programs and officials.
In today's Mahanoy Area School Dist. v. B.L., eight Justices (all but Justice Thomas) conclude that off-campus student speech—especially on political or religious topics, defined broadly—is generally protected from punishment by the school (at least unless it fits within an existing First Amendment protection, such as for threats of violence, or perhaps unless it involves personal insults of classmates). The Justices declined to establish this as a categorical rule; but I expect this decision to prevent punishment for such speech in the great bulk of situations. ("Off-campus speech" here is shorthand for speech that's outside school property and outside school-organized or school-sanctioned activities.)
First, a short summary of the facts:
At the end of her freshman year, B.L. tried out for a position on the [Mahanoy Area Public High School's] varsity cheerleading squad and for right fielder on a private softball team. She did not make the varsity cheerleading team or get her preferred softball position, but she was offered a spot on the cheerleading squad's junior varsity team. B.L. did not accept the coach's decision with good grace, particularly because the squad coaches had placed an entering freshman on the varsity team.
That weekend, B.L. and a friend visited the Cocoa Hut, a local convenience store. There, B.L. used her smartphone to post two photos on Snapchat, a social media application that allows users to post photos and videos that disappear after a set period of time. B.L. posted the images to her Snapchat "story," a feature of the application that allows any person in the user's "friend" group (B.L. had about 250 "friends") to view the images for a 24 hour period.
The first image B.L. posted showed B.L. and a friend with middle fingers raised; it bore the caption: "Fuck school fuck softball fuck cheer fuck everything." The second image was blank but for a caption, which read: "Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn't matter to anyone else?" The caption also contained an upside-down smileyface emoji.
B.L.'s Snapchat "friends" included other Mahanoy Area High School students, some of whom also belonged to the cheerleading squad. At least one of them, using a separate cellphone, took pictures of B.L.'s posts and shared them with other members of the cheerleading squad. One of the students who received these photos showed them to her mother (who was a cheerleading squad coach), and the images spread. That week, several cheerleaders and other students approached the cheerleading coaches "visibly upset" about B.L.'s posts. Questions about the posts persisted during an Algebra class taught by one of the two coaches.
After discussing the matter with the school principal, the coaches decided that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules. As a result, the coaches suspended B.L. from the junior varsity cheerleading squad for the upcoming year. B.L.'s subsequent apologies did not move school officials.
The Supreme Court concluded the suspension violated the First Amendment, largely because the speech was said off-campus (even though it foreseeably made its way on-campus):
[T]hree features of off-campus speech … often, even if not always, distinguish schools' efforts to regulate that speech from their efforts to regulate on-campus speech. Those features diminish the strength of the unique educational characteristics that might call for special First Amendment leeway.
First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco parentis treats school administrators as standing in the place of students' parents under circumstances where the children's actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.
Second, from the student speaker's perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school's efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.
Third, the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus. America's public schools are the nurseries of democracy. Our representative democracy only works if we protect the "marketplace of ideas." This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People's will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, "I disapprove of what you say, but I will defend to the death your right to say it." …
Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker's off-campus location will make the critical difference.
And the court illustrated its approach using the facts of this case:
Putting aside the vulgar language, the listener would hear criticism, of the team, the team's coaches, and the school—in a word or two, criticism of the rules of a community of which B.L. forms a part. This criticism did not involve features that would place it outside the First Amendment's ordinary protection. B.L.'s posts, while crude, did not amount to fighting words. And while B.L. used vulgarity, her speech was not obscene as this Court has understood that term. To the contrary, B.L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection…. [The] First Amendment protects "even hurtful speech on public issues to ensure that we do not stifle public debate" …. "The inappropriate … character of a statement is irrelevant to the question whether it deals with a matter of public concern[.]" …
Consider too when, where, and how B.L. spoke. Her posts appeared outside of school hours from a location outside the school. She did not identify the school in her posts or target any member of the school community with vulgar or abusive language. B.L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends. These features of her speech, while risking transmission to the school itself, nonetheless … diminish the school's interest in punishing B.L.'s utterance.
But what about the school's interest, here primarily an interest in prohibiting students from using vulgar language to criticize a school team or its coaches—at least when that criticism might well be transmitted to other students, team members, coaches, and faculty? We can break that general interest into three parts.
First, we consider the school's interest in teaching good manners and consequently in punishing the use of vulgar language aimed at part of the school community. The strength of this anti-vulgarity interest is weakened considerably by the fact that B.L. spoke outside the school on her own time. B.L. spoke under circumstances where the school did not stand in loco parentis. And there is no reason to believe B.L.'s parents had delegated to school officials their own control of B.L.'s behavior at the Cocoa Hut.
Moreover, the vulgarity in B.L.'s posts encompassed a message, an expression of B.L.'s irritation with, and criticism of, the school and cheerleading communities. Further, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom. Together, these facts convince us that the school's interest in teaching good manners is not sufficient, in this case, to overcome B.L.'s interest in free expression.
Second, the school argues that it was trying to prevent disruption, if not within the classroom, then within the bounds of a school-sponsored extracurricular activity. But we can find no evidence in the record of the sort of "substantial disruption" of a school activity or a threatened harm to the rights of others that might justify the school's action. Rather, the record shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class "for just a couple of days" and that some members of the cheerleading team were "upset" about the content of B.L.'s Snapchats. But when one of B.L.'s coaches was asked directly if she had "any reason to think that this particular incident would disrupt class or school activities other than the fact that kids kept asking … about it," she responded simply, "No." As we said in Tinker v. Des Moines Indep. School Dist. (1969), "for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." The alleged disturbance here does not meet Tinker's demanding standard.
Third, the school presented some evidence that expresses (at least indirectly) a concern for team morale. One of the coaches testified that the school decided to suspend B.L., not because of any specific negative impact upon a particular member of the school community, but "based on the fact that there was negativity put out there that could impact students in the school." There is little else, however, that suggests any serious decline in team morale—to the point where it could create a substantial interference in, or disruption of, the school's efforts to maintain team cohesion…. [S]imple "undifferentiated fear or apprehension … is not enough to overcome the right to freedom of expression." Tinker.
It might be tempting to dismiss B.L.'s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary. "We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated."
Justice Alito, joined by Justice Gorsuch, agreed with the majority but added that certain speech "is almost always beyond the regulatory authority of a public school," because "it lies at the heart of the First Amendment's protection":
This is student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations. Speech on such matters lies at the heart of the First Amendment's protection….
If a school tried to regulate such speech, the most that it could claim is that offensive off-premises speech on important matters may cause controversy and recriminations among students and may thus disrupt instruction and good order on school premises. But it is a "bedrock principle" that speech may not be suppressed simply because it expresses ideas that are "offensive or disagreeable." Texas v. Johnson (1989); see also Matal v. Tam (2017) ("Speech may not be banned on the ground that it expresses ideas that offend"); FCC v. Pacifica Foundation (1978) (opinion of Stevens, J.) ("[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it"); Young v. American Mini Theatres, Inc. (1976) (plurality opinion) ("Nor may speech be curtailed because it invites dispute, creates dissatisfaction with conditions the way they are, or even stirs people to anger"); Street v. New York (1969) ("It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers"). It is unreasonable to infer that parents who send a child to a public school thereby authorize the school to take away such a critical right.
And he endorsed the view expressed by the school board's lawyer, which he viewed as consistent with his position:
[E]ven if such speech is deeply offensive to members of the school community and may cause a disruption, the school cannot punish the student who spoke out; "that would be a heckler's veto." The school may suppress the disruption, but it may not punish the off-campus speech that prompted other students to engage in misconduct.
He also noted, "This case does not involve speech by a student at a public college or university. For several reasons, including the age, independence, and living arrangements of such students, regulation of their speech may raise very different questions from those presented here. I do not understand the decision in this case to apply to such students."
Justice Thomas dissented, reaffirming the view (which he had expressed in Morse v. Frederick (2007)) that historically public schools had almost unlimited latitude to discipline students based on their speech, including off-campus speech that "had a proximate [i.e., foreseeable] tendency to harm the school environment":
While the majority entirely ignores the relevant history, I would begin the assessment of the scope of free-speech rights incorporated against the States by looking to "what 'ordinary citizens' at the time of [the Fourteenth Amendment's] ratification would have understood" the right to encompass. Cases and treatises from that era reveal that public schools retained substantial authority to discipline students….
For more on the rules of free speech law in K-12 schools (a video that was prepared before this decision was handed down, but that's still accurate):
