The Supreme Court’s recent First Amendment decision leaves open questions for school districts regarding their ability to regulate their students’ off-campus online speech.
On June 23, 2021, the Supreme Court decided that Mahanoy Area High School could not discipline a student for her off-campus online speech criticizing her cheerleading squad. This was perhaps the most important student speech case since Tinker v. Des Moines Independent Community School District (1969).
Brandi Levy, a 14-year-old high school student, was upset after not making the varsity cheerleading squad at Mahanoy Area High School. Over the weekend at a gas station, she posted a snap to her snap story, which reached about 250 of her personal Snapchat friends, that said, “F*** school f*** softball f***cheer f***everything.” She also posted a second image 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?” with an upside-down smiley-face emoji.
The post appeared for 24 hours on her snap story but one of her Snapchat friends took a screenshot of the post and showed it to a cheerleading coach. The school disciplined Levy for the post on the grounds that the use of profanity in connection with an extracurricular activity violated the school rules and the cheerleading team policies. As a result, Levy was suspended from the cheer team for the upcoming year.
To assess whether Levy’s First Amendment rights had been violated, the Court used the same framework from Tinker and found that there was no “substantial disruption” to the learning environment. As a result, the Court voted 8-1 that the school could not discipline Levy for her protected speech. Justice Breyer wrote the majority opinion with Justices Alito and Gorsuch concurring and Justice Thomas dissenting.
What makes this case so interesting is the issue of whether a school can regulate off-campus online speech. With more remote and online learning, especially in the past year, the lines between home and school have blurred and it is unclear how far a school can reach to discipline its students. If a school can regulate student speech off-campus, then it can regulate student speech 24 hours a day, which would prevent students from being able to engage in this type of speech at all.
The Court saw the minefield that an increase in online learning has created for student speech and chose not to adopt a specific, bright-line rule. Instead, the Court stated that off-campus or online speech could potentially still be regulated by a school, but that it was not warranted in this case. It essentially declared that Tinker can apply to off-campus speech, but there may be additional factors to consider. By way of guidance for future cases, the Court emphasized specific factors of Levy’s case that increased Levy’s free expression interest and decreased the Mahanoy Area High School’s interest in restricting the speech. These factors include the following:
- The Snapchat posts were sent outside of school hours and from an off-campus location
- Levy did not identify the school in her posts and did not target any member of the school community
- The posts were sent with a personal cell phone
- The audience that received the posts were Levy’s private Snapchat friends—the post was not public
- The school did not stand in loco parentis at the time the posts were sent (meaning it was not in a position where parents were absent and the school was tasked with discipline)
- The only disruption created in school was 5 to 10 minutes of discussion during an Algebra class and a few cheerleaders being upset and bringing the posts to their coaches’ attention
- The school’s only interest in restricting the speech was to teach good manners and not use vulgar language aimed at the school community
- The speech did not qualify as fighting words and so it was within the full protection of the First Amendment
Because the Court did not issue a bright-line rule, each case will need to be analyzed in the future with an eye toward the above factors. While this case shows that schools can potentially discipline students for off-campus online speech if it creates a substantial disruption to the learning environment, they should consider the narrow holding of this case and speak to an attorney before disciplining students for online speech.