The United States Supreme Court ruled 8-1 in favor of protecting public school students’ free speech rights on Wednesday, June 23, 2021, in Mahanoy Area School District v. B.L. The ruling expounds upon Tinker v. Des Moines Independent Community School District, bringing student free speech jurisprudence into the internet era. “[S]ometimes it is necessary to protect the superfluous in order to preserve the necessary.”
The majority opinion, penned by Justice Stephen Breyer, started its analysis by scrutinizing the off-campus/on-campus distinction previously proffered by the Third Circuit in the case. Three features of off-campus speech were highlighted, specifically, that often distinguish schools’ efforts to regulate off-campus versus on-campus speech: (1) “[A] school, in relation to off-campus speech, will rarely stand in loco parentis;” (2) “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;” and (3) “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.” As a general matter, the majority opinion made clear that “[t]aken 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.”
The majority further made clear that B.L.’s speech did not amount to fighting words and was not obscene. Rather, the majority found that B.L.’s speech was pure such that it would be strongly protected were B.L. an adult. Also considering when, where, and how B.L. spoke (speech transmitted through a personal cellphone to a private circle of friends on Snapchat), the majority found that, despite risking transmission to the school itself, the school had a diminished interest in punishing B.L. for her speech.
In considering the school’s interest “in prohibiting students from using vulgar language to criticize a school’s team or its coaches,” the majority considered three things. The first consideration, “the school’s interest in teaching good manners and consequently in punishing the use of vulgar language aimed at part of the school community,” was insufficient to overcome B.L.’s interest in free expression. The school did not stand in loco parentis and there was no evidence to suggest that B.L.’s parents delegated control to school officials to control B.L.’s behavior off-campus, nor was there any evidence to suggest the school made any general effort to prevent students from using vulgarity off-campus.
The second consideration, “prevent[ing] disruption, if not within the classroom, then within the bounds of a school-sponsored extracurricular activity,” did not meet the demanding standard set forth by Tinker. There was no evidence in the record to suggest a “‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify the school’s action.” At most, the record reflected “that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class ‘for just a couple of days.'” Further, one of B.L.’s coaches previously remarked that she had no reason to think that the incident caused by B.L. would disrupt class or school activities.
The final consideration assessed by the majority was “a concern for team morale.” One of B.L.’s coaches testified that B.L. was suspended “based on the fact that there was negativity put out there that could impact students in the school.” Nothing else in the record, however, reflected “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.” The majority, quoting Tinker, made clear that “undifferentiated fear or apprehension. . . is not enough to overcome the right to freedom of expression.”
The majority opinion, however, acknowledged that there are a multitude of different kinds of off-campus speech, different potential circumstance-specific and potential school-related justifications, and differing extents to which said justifications might justify First Amendment leeway for public schools to moderate student speech. But the majority refused to outline all those fact-specific instances and, rather, left space “for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference.”
The sole dissenting vote was cast by Justice Clarence Thomas. In his dissenting opinion, Justice Thomas proffered an originalist argument to express displeasure with the majority’s ruling and opinion as to free speech doctrine. He used similar originalist reasoning to criticize the Court’s “longtime failure to grapple with the historical doctrine of in loco parentis.” Finally, Justice Thomas criticized the majority’s application of Tinker to the instant case, stating that the majority “creates a test untethered from history,” bypassing the inquiry of whether B.L.’s speech was off-campus or on-campus.
U.S. Supreme Court hands victory to cheerleader in free speech case, Reuters (June 23, 2021)
U.S. Supreme Court Hears Oral Arguments in Off-Campus Student Free Speech Case, Justia Legal News (April 28, 2021)
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