Chemerinsky: SCOTUS weighs whether freedom of speech applies to students off campus using social media
Erwin Chemerinsky. Photo by Jim Block.
The U.S. Supreme Court will hear its last oral arguments of the term in April, and it will finish with a First Amendment case of potential great importance. Mahanoy Area School District v. B.L. involves whether a student can be punished for speech on social media over the weekend.
The court has not decided a student speech case in over a decade, and this will be the first to address the ability of schools to impose discipline for speech out of school and over social media.
The student known as B.L. made the Mahanoy Area High School junior varsity cheerleading team as a freshman. She tried out for the varsity team as a sophomore but again was assigned to the junior varsity squad. She was especially upset because an incoming freshman made the varsity squad.
On a Saturday, from off campus of her Pennsylvania school, B.L. posted two messages on Snapchat. These messages were visible on the social media platform for 24 hours.
Her first message consisted of a photo in which she and a classmate raised their middle fingers at the camera, with the caption: “F- - - school f- - - softball f- - - cheer f- - - everything.” B.L.’s second message, posted shortly thereafter, consisted of complaining that she and another student were on the junior varsity squad again, but it did not contain any profanities.
The coaches determined that B.L.’s posts “could impact students in the school” and had violated team rules that B.L. had agreed to follow, including that cheerleaders “have respect for [their] school, coaches, teachers, [and] other cheerleaders” and avoid “foul language and inappropriate gestures.” The coaches removed B.L. from the cheer team for the school year but informed her that she could try out again as a rising junior. No other disciplinary action was taken.
B.L. and her parents sued in federal district court, which granted a preliminary injunction reinstating her to the team and then summary judgment in her favor. The U.S. Court of Appeals for the 3rd Circuit affirmed, stressing that schools cannot punish off-campus speech. In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court ruled that schools can punish speech if there is a substantial disruption of school activities.
The 3rd Circuit, though, said that Tinker “does not apply to off-campus speech,” to “speech that is outside school-owned, -operated or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.” The majority elaborated that schools cannot invoke Tinker even to address “off-campus student speech threatening violence or harassing particular students or teachers.”
There only have been a handful of Supreme Court decisions dealing with the issue of student speech, and all of those arose in the context of speech that occurred in schools. In West Virginia State Board of Education v. Barnette, the court declared unconstitutional a state law requiring that students salute the flag at the beginning of the school day. Although the court focused on the First Amendment’s prohibition against compelled expression, the decision obviously accepted the protection of First Amendment rights in schools.
In Tinker, the court said that the First Amendment protected the ability of students in a high school to wear black armbands to protest the Vietnam War.
In an opinion by Justice Abe Fortas, the court said, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The court also said, “In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. … [Students] are possessed of fundamental rights which the State must respect.” In addition, the court said speech is protected absent a showing that it would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”
In subsequent years, however, the court has been much less protective of speech in school environments and much more deferential to school authorities. In Bethel School District No. 403 v. Fraser (1986), the court upheld the punishment of a student for a speech that was filled with sexual innuendo given at a school assembly nominating another student for a position in student government. The speaker was suspended for two days. The court emphasized the need for judicial deference to educational institutions.
The court went even further in its deference to school authorities in Hazelwood School District v. Kuhlmeier (1988). A school newspaper produced as part of a journalism class was going to publish, with the approval of its faculty adviser, stories about three students’ experiences with pregnancy and about the impact of divorce on students.
No students’ names were included in the article on pregnancy, and one was mentioned in the article on divorce (although the name had been deleted after the paper had been forwarded to the principal for review). The principal decided to publish the paper without these articles by deleting the two pages on which they appeared.
The principal expressed the view that the articles on pregnancy discussed sexual activity and birth control in a manner that was inappropriate for some of the younger students at the school, that the three students in the article on pregnancy might be identified from other aspects of the article, and that the parents of the student identified in the article about divorce should have the opportunity to respond.
The Supreme Court upheld the principal’s decision and rejected the First Amendment challenge. Justice Byron R. White concluded that the school newspaper was a nonpublic forum and, as a result, “school officials were entitled to regulate the content of [the school newspaper] in any reasonable manner.” The court emphasized the ability of schools to control curricular decisions, such as what appears in school newspapers published as part of journalism classes.
The most recent Supreme Court decision concerning student speech also evidenced great deference to school officials. In Morse v. Frederick (2007), the court held that the First Amendment was not violated when a student was punished for displaying a banner with the inscription “Bong Hits 4 Jesus.” When the Olympic torch came through Juneau, Alaska, a high school released its students from class to watch and a student unfurled his banner. The principal, believing the banner encouraged drug use, confiscated it and suspended the student who displayed it.
In an opinion by Chief Justice John G. Roberts Jr., the court, in a 5-4 decision, said the principal could reasonably interpret the banner as encouraging illegal drug use and that schools have an important interest in stopping such speech. Chief Justice Roberts wrote: “The question thus becomes whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. We hold that she may.”
The issue before the court in Mahanoy Area School District v. B.L. is how, if at all, these precedents apply to student off-campus speech over social media. This is an issue now arising with great frequency, and prior Supreme Court decisions don’t address it.
On the one hand, the 3rd Circuit draws a bright-line distinction between speech at school and speech away from school. Animating this is a concern that there would be no stopping point to the ability of schools to punish student speech away from the school.
Any criticism of a teacher or of another student could be said to affect what happens at the school. In this instance, it was a student expressing her displeasure with the decision about the cheer squad and using profanity. The disruption of school activities seems trivial.
On the other hand, as the Mahanoy Area School District argues in its brief, schools have the responsibility for preventing harassment and bullying of faculty and students even when it occurs outside of school. Indeed, deliberate indifference by the school to racial or sexual harassment is a basis for the school to be held liable. The distinction between in-school and out-of-school seems arbitrary in a world of social media. Is a student’s Snapchat or Facebook message any different whether sent from within the school or outside of it?
Admittedly, B.L.’s profane rant was sophomoric, but she was a high school sophomore and upset. Ideally, the coach would have ignored it and been understanding of her frustration. Instead, it is now before the Supreme Court and likely will create a major precedent about the ability of schools to punish student speech.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book is The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020).