U.S. Supreme Court affirms school violated student’s First Amendment rights

In this case, then freshman student B. L., after learning that she had not made the varsity cheerleading squad at her high school, expressed her frustration in a now infamous message posted on Snapchat, a social media app that allows users to share temporary images with selected friends. B. L. posted a photo of herself and a friend with their middle fingers raised, accompanied by a caption reading, “F**k school f**k softball f**k cheer f**k everything.” The self-deleting message was posted while B. L. was off campus, on a Saturday, and broadcast to about 250 of the student’s friends on Snapchat. A screenshot of the message was widely shared by students at school over the next week and shown to the school’s cheerleading coaches and school officials. The coaches suspended B. L. from the junior varsity cheerleading team for the next season, citing a violation of team rules, and the school board upheld the decision.

B. L.’s parents filed suit on her behalf in federal court in Pennsylvania, arguing that the district had unconstitutionally punished her for speech made off school grounds that did not pose a risk of disruption on campus.

The district court held in B. L.’s favor. On appeal, the Third Circuit Court of Appeals affirmed the lower court decision that B. L. could not be punished, but the circuit court’s majority went further, holding not only that the speech was not disruptive of the school environment, but “that Tinker does not apply to off-campus speech.”

In its brief petitioning the Supreme Court to review the Third Circuit’s opinion, the school district argued that student social media use is inextricably linked with the campus environment, regardless of when and from where a student’s “speech” may be posted, and districts have relied on school policies allowing administrators to discipline off-campus student speech that substantially disrupts the school environment.

The Supreme Court’s decision upheld the Third Circuit’s decision that the school violated B. L.’s First Amendment rights when it sus­pended her from the junior varsity cheerleading squad. However, the Court disagreed with the reasoning of the Third Circuit’s majority and made clear that schools can still regulate student speech that occurs off campus under certain circumstances.

Writing for the majority, Justice Stephen Breyer reiterated the Court’s reasoning behind Tinker, that schools have a special interest in regulating student speech that “materially disrupts class work or involves substantial disorder or invasion of the rights of others,” and found that this special interest is not limited to on-campus speech, and that a “school’s regulatory interests remain significant in some off-campus circumstances.” The Court’s decision referenced some types of off-campus behavior that schools could regulate, including “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”

In analyzing the case, the Court also described three features of off-campus speech that often distinguish schools’ efforts to regulate off-campus speech from their efforts to regulate on-campus speech and together have the effect of diminishing the general First Amendment leeway granted schools in light of their special characteristics. According to the Supreme Court, those features are that schools will rarely stand in loco parentis (“in place of a parent”) when a student speaks off campus; that regulation of off-campus speech as well as on-campus speech would mean that student speech would be subject to regulation 24 hours a day, so courts must be more skeptical of a school’s efforts to regulate off-campus speech; and that “the school itself has an inter­est in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy” and “our representative democracy only works if we protect the ‘marketplace of ideas.’”

In this case, the circumstances of B. L.’s speech diminished the school’s ability to regulate it, as the student’s Snapchat posts appeared off campus and outside of school hours, she did not target any member of the school community with vulgar or abusive language, and she transmitted her speech through a per­sonal cellphone to an audience consisting of her private circle of Snapchat friends. In the Court’s view, the school’s potential interest in teaching good manners and in punishing the use of vulgar language aimed at part of the school community was weakened considerably by the fact that B. L. spoke outside the school on her own time. B. L.’s profanity-laced post may not seem like the type of speech that needs Constitutional protection, but as the Court wrote, “sometimes it is necessary to protect the super­fluous in order to preserve the necessary.”

While the Court’s decision does not provide schools with a clear roadmap of what types of off-campus speech it may regulate in the future, the decision contains at least some guidance for schools. The Court identified specific types of off-campus behavior that schools may regulate, as stated above, and the Court’s description of features of off-campus speech that set it apart from on-campus speech may be helpful to schools in assessing circumstances under which it may be lawful to regulate off-campus speech. Schools should exercise caution, though, as regulation of many types of off-campus student speech is more likely to raise First Amendment concerns.