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Justices Show Little Spirit for Expanding Tinker: SCOTUS Wrestles with Appropriate Standard for Regulating Off-Campus Student Speech

Justices Show Little Spirit for Expanding Tinker: SCOTUS Wrestles with Appropriate Standard for Regulating Off-Campus Student Speech

In 1969, the Supreme Court recognized both that students do not surrender their First Amendment rights at the schoolhouse gates, but that schools do have the right to discipline students for speech that could cause substantial disruptions. In the landmark case of Tinker v. Des Moines Independent Community School District, the Supreme Court held that public school officials can regulate their students’ speech if those expressions of opinion would “materially and substantially interfere” with school operations. This standard, known as the Tinker test, has been the lodestar by which courts have weighed students’ First Amendment rights versus schools’ rights to curtail problematic speech ever since. But a case involving Snapchat, cheerleading, and a disgruntled student has the potential to extend Tinker’s holding far beyond the schoolhouse gates and into the realm of social media.

On Wednesday, April 28, 2021, the Supreme Court heard oral arguments in Mahanoy Area School District v. B.L., a case that many thought could have potentially monumental effects on the regulation of off-campus speech as relates to schools and social media. The case centers on Brandi Levy—the titular B.L.— who, while a student at a public high school in Pennsylvania, tried out for her school’s varsity cheerleading team. When Levy was not selected for the team, the displeased teenager vented her feelings on Snapchat, the social media app that allows users to take photographs (or “snaps”) that disappear after a certain amount of time and are only viewable by certain people. Levy’s snap was a post of herself and a friend, middle fingers raised, along with a caption stating “F*** school f*** softball f*** cheer f*** everything.” She later posted a second snap again criticizing the choice to omit her from the varsity squad. Importantly, Levy was off-campus when she posted the photos.

Despite only being visible for 24 hours and only viewable to Levy’s roughly 250 friends on Snapchat, the photos nonetheless wound their way to her cheerleading coaches. The coaches in turn suspended Levy—who was then a member of the junior varsity cheerleading team—for a year on the grounds that she had violated both team and school rules. As a result, Levy’s family sued the school district, arguing, among other things, that the district’s actions violated her First Amendment rights.

The district court agreed with Levy, and granted summary judgment in her favor, finding: (1) that she had not waived her right to speech simply by agreeing to the team’s rules, and that although participation on the cheerleading team was a privilege, her suspension nevertheless concerned her First Amendment rights; (2) that because Levy’s snap was taken off-campus her speech was thus not subject to regulation; and (3) that Levy’s snap had not risen to the level of disruption required under Tinker to warrant discipline. Accordingly, the district court found the school district had violated Levy’s First Amendment rights.

The school district appealed to the Court of Appeals for the Third Circuit, which affirmed the findings of the district court. Importantly, the Third Circuit held that: (1) Levy’s snap was protected speech; and (2) that she did not waive her right to post it. The Third Circuit determined that Levy’s speech took place “off-campus,” given that the “speech” in question took place physically off-campus, it did not occur in a context that bore the imprimatur of the school, nor was it posted on a school-owned or -operated platform. Having decided that Levy’s speech occurred off-campus, the Third Circuit then turned to whether the school district had the power to punish Levy for it. The appellate court concluded that Tinker does not permit schools to discipline off-campus speech. Accordingly, Levy prevailed once again. The school district then petitioned the Supreme Court for a writ of certiorari.

The Supreme Court granted the district’s petition, specifically on the question of whether Tinker applies to speech that occurs off-campus, setting the stage for a possible landmark shift in how students’ speech can be regulated in the social media era. Given the potential far-reaching implications of the case, it unsurprisingly attracted numerous amici curiae—including the federal government. However, during oral arguments, neither side seemed to have a clear advantage. The school district argued that given the ubiquity of the internet and social media, it should be allowed to regulate off-campus speech that creates a danger of harassment, bullying, threats, or other disruptions that “targets” schools. It also rejected the notion that giving it this disciplinary power would lead to overly broad censorship of student speech. Levy’s attorney, on the other hand, argued that speech that occurs at school should be entirely divorced from speech that does not. Warning that expanding Tinker off-campus would irreversibly open the floodgates in allowing overly draconian regulation of student speech, he claimed that problematic off-campus speech could already be disciplined through other means, focusing on existing bullying and harassment statutes and policies. The federal government’s deputy solicitor general also weighed in, arguing in favor of the school district.

For their part, the justices seemed divided and unwilling to adopt either side’s position whole cloth. Many justices seemed uneasy with the idea of giving schools extensive power to regulate off-campus speech, showing concerns that it could sweep too broadly. On the other end, multiple justices seemed concerned that a bright-line rule forbidding regulation of off-campus speech would open the door for cyberbullying and other harmful activities occurring online or on social media whose effects, while technically occurring off-campus, would nevertheless be acutely felt at school. Further, some justices were focused on the distinction between school and extracurricular activities, noting that it was Levy’s ire with not making the extracurricular cheerleading squad that prompted her provocative speech, and that her speech was not strictly targeted at her school. And to top it off, many justices pondered whether Levy’s conduct warranted such a severe sanction, or if it was worthy of discipline in the first place.

In the end, it was not obvious how the Court would decide, although it was clear most of the justices were reticent to venture too far one way or the other and were hesitant in drawing a broad rule based on the case before them. Regardless of which way the Court does come down, and how broadly or narrowly a rule it creates, it will nonetheless represent an important marker in determining what, if any, discipline schools may impose to off-campus speech under Tinker. An opinion in the case is expected sometime in either May or June.