Article: Supreme Court to Decide Whether Punishing a Student’s Off-Campus Speech Violates the First Amendment

The Supreme Court recently heard arguments in a case that asks whether public schools can punish students for making profane social media posts about school activities when the student is not in school. The Court will be asked to balance a student’s right to free speech against a school’s alleged interest in promoting respect for school activities. The case raises important issues about a public school’s ability to punish a student for speech that occurs far from the school and outside of school hours.

Facts of the Case

B.L. attended Mahanoy Area High School in Pennsylvania. She tried out for cheerleading in her freshman year and made the junior varsity squad. B.L. expected to make the varsity squad in her sophomore year but was disappointed to learn that she had again been assigned to the JV squad. A freshman cheerleader made the varsity squad, taking a position that, in B.L.’s view, should have been hers.

B.L. was frustrated with cheerleading and with her position on a private softball team. While hanging out with a friend at a store on a Saturday, B.L. decided to vent her frustration. She took a photo of herself with her middle fingers raised. She posted the photo to Snapchat, an app that allows users to make photos and texts available to their Snapchat “friends.” B.L. had about 250 Snapchat friends who had access to the post.

B.L. captioned the photo with the phrase “Fuck school fuck softball fuck cheer fuck everything.” She then added a second post that said, “Love how me and [another student] get told we need a year of jv before we can make varsity but that’s doesn’t matter to anyone else?”

Snapchat posts disappear after a period of time. Since they cannot be accessed from the web, posts cannot easily be archived, although it is possible for recipients to take screenshots before a post disappears. A recipient of B.L.’s posts sent screenshots to one of the cheerleading coaches. A second coach received similar screenshots.

The coaches decided that B.L. had violated team and school rules that require cheerleaders to have respect for their school and coaches and to avoid “foul language and inappropriate gestures.” The coaches also believed that B.L. may have violated a school rule that requires students to conduct themselves in a way that does not “tarnish the image” of the school district.

In addition, the coaches decided that B.L. violated a rule requiring cheerleaders to refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches” on the internet. Since Snapchat is not the internet, it is not clear that the rule applied to B.L.’s posts.

To punish B.L. for allegedly violating the rules, the coaches removed her from the J.V. squad. B.L. appealed to the athletic director, the principal, the superintendent, and the school board. After all of those entities declined to reverse the coaches’ decision, B.L. sued the school district for violating her First Amendment right to express an opinion.

Lower Court Decisions

The federal district court that heard the lawsuit ruled in B.L.’s favor. The court rejected the district’s claim that B.L. surrendered her First Amendment rights when she agreed to follow team rules. The court then found that B.L.’s post was an off-campus activity that the school could not regulate. Finally, the court rejected the argument that the school was entitled to punish student speech that disrupted the school. In the court’s view, the district failed to prove that a temporary snapchat post caused substantial disruption of the school environment.

The school district appealed to the Court of Appeals for the Third Circuit. In a lengthy opinion, the court decided that B.L.’s post was entitled to First Amendment protection and that B.L. did not waive that protection. The appellate court therefore affirmed the district court’s ruling.

Unhappy with the limitation of its right to punish students for things they say when they are not in school, the school district asked the U.S. Supreme Court to review the Third Circuit’s decision. The case provides the Supreme Court with an opportunity to clarify the scope of First Amendment protections for students who make statements in social media after school hours when they are not on campus.

Freedom of Speech

The First Amendment prohibits the government from abridging freedom of speech. Public schools are “the government” for First Amendment purposes. Under most circumstances, punishing a speaker for the content of protected speech is an abridgement of the right to speak freely.

The First Amendment protects the content, but not necessarily the manner, of speech. Regulations of speech may be permissible if the regulation is content neutral. For example, prohibiting all speech that violates a noise ordinance might be permissible, provided that the ordinance is not so broad that it prevents most communication of ideas.

Courts have given greater protection to political speech than to other forms of speech, although the right is not limited to speech about matters of public concern. Advertising, for example, enjoys a degree of First Amendment protection.

Speech that promotes criminal activity, such as a lie told to defraud a crime victim, is not protected. Speech that creates a clear and present danger to society, such as statements designed to incite a riot, are not protected, assuming that the danger is both real and immediate. At one point, the Court carved out a First Amendment exception for “obscene” speech, but the Court has substantially narrowed that exception in recent years.

But most speech is protected, even if a majority of people consider it to be offensive. Courts have nevertheless decided that student speech in a public school may be subject to limited regulation.

Free Speech in Public Schools

In several cases, the Supreme Court has addressed the exercise of free speech in a public school. The Court’s landmark ruling involved a school that suspended students for wearing black armbands to protest the Vietnam War. The Court’s 1969 decision in Tinker v. Des Moines Independent Community School District concluded that the suspension was unconstitutional.

The Tinker decision held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court balanced the students’ right to express political opinions against the school’s educational mission. That balance imposes two limitations upon schools.

First, a school cannot restrict or regulate speech unless it has a constitutionally valid reason for doing so. Mere disagreement with a student’s opinion is not a constitutionally valid reason to infringe upon the student’s right to express that opinion.

Second, to protect the right of other students to obtain an education, a school may regulate disruptive speech that would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” A school may not, however, punish a student merely because a teacher is uncomfortable with a student’s opinions. The fear of disruption must be specific and significant before it will justify suppression of a student’s speech.

Three subsequent cases added additional limits to a student’s free speech rights. First, because schools are entitled to teach students to be civil, they may prohibit the use of vulgar or offensive language on school property during school hours. Second, schools can regulate the content of speech in school-sponsored activities (such as a student newspaper that the school publishes) for “legitimate pedagogical reasons” if the school might be seen as endorsing the speech. Third, because the Court viewed drug use a problem that interferes with a school’s educational mission, a school may punish speech during school hours or at a school-sanctioned activity that would reasonably be viewed as endorsing the use of illicit drugs.

Legal Issues Before the Supreme Court

In B.L.’s case, the Court will decide whether a school’s limited right to prohibit disruptive speech extends to content that a student posts to a social media account when the student is not in school. Although B.L.’s post did not mention the school district by name, the school district contends that the post “targeted the school environment” and substantially disrupted school activities while harming cheerleaders. While the post did not criticized cheerleaders, the school district cited evidence that some cheerleaders were ‘visibly upset” when they reported B.L.’s post to the coaches. The school district also relied on a fear that B.L.’s conduct might “undercut morale” and that “team cohesion” would be impaired if cheerleaders are permitted to criticize their coaches.

The school district may find it difficult to persuade the Court that B.L.’s speech was actually disruptive. As B.L. points out, the lower courts agreed that the school district presented no evidence of substantial disruption in the district court. The “general rumblings” of a few upset cheerleaders are far from substantial and do not disrupt any educational mission. Teen drama is a fact of life, not a basis for restricting speech that a few students might find upsetting.

In fact, the school district admitted in the district court that it punished B.L. for swearing, not because it feared she would cause disruption. It is up to the trial court, not appellate courts, to decide which of two competing views of the facts to believe. Since the district court found that B.L.’s posts were not disruptive, the Supreme Court should regard itself as bound by that finding.

The school district’s brief emphasizes the belief that teachers must exercise nearly absolute authority over their students to complete their educational mission, even when the students are not in school. B.L. counters that when they are not in school, “young people have the right to find their voices without being unduly chilled, their parents have the right to manage their upbringing, and others have the right to hear what they have to say.”

If the Supreme Court rules in favor of the school district, it is difficult to imagine how the decision can be tailored to protect free speech in the age of social media. School is a big part of a student’s life, as is social media. Comments upon the quality of a student’s education, policy decisions made by school administrators, and the perceived unfairness of school rules are common. If those comments offend a teacher or another student, should the student be punished simply because the student expressed a controversial opinion on her own time and in her own social media account?

We won’t know how the Court will decide the case for several months


About the Author

off-campus speechScott J. Limmer is a New York criminal attorney practicing primarily in Nassau, Suffolk, and Queens counties. He also represents students nationwide when they are charged with violations of their school’s code of conduct.