A high school cheerleader will trade the basketball court for the Supreme Court on Wednesday for argument in Mahanoy Area School District v. B.L. At issue is the seminal student speech decision Tinker v. Des Moines Independent Community School District, which held that the First Amendment protects student speech at school from punishment, except when it substantially disrupts the operation of the school. Now, the Court will decide whether and how its decision in Tinker applies to off-campus, online student speech.
The Court should hold that Tinker’s exception to the First Amendment, making it easier for schools to punish students’ speech, does not apply outside the school environment. Limiting Tinker to the school environment will protect students’ free expression online, especially that of students of color, students with disabilities, LGBTQ students, and students with unpopular views. And, while important concerns have been raised about schools’ ability to protect victims of online bullying and harassment, maintaining the Tinker standard as it exists today will not prevent school administrators’ critically important work of preventing and addressing off-campus bullying and harassment.
The case currently before the Court arose after a high schooler who failed to make the varsity cheerleading squad, B.L., vented her frustration on Snapchat, a social media site where users’ posts appear for 24 hours or less. On a Saturday, off school grounds, and using her personal cellphone, B.L. posted a Snap with a picture that showed her and a friend with their middle fingers extended and the words “Fuck school fuck softball fuck cheer fuck everything.” In response, the school suspended B.L. from the junior varsity squad for the rest of the school year. B.L. sued, arguing that the school violated the First Amendment by punishing her for her protected speech.
In Tinker, the Supreme Court established a narrow exception to the First Amendment’s protections for freedom of speech. It held that school authorities can punish student speech that causes, or may cause, a material and substantial disruption in the work or discipline of the school. Importantly, Tinker’s exception and those of the other student speech cases that have followed it have been limited to the school environment, meaning either the physical boundaries of the school or school-sponsored or supervised events.
The Court’s decision in Mahanoy will have vast implications for public school students’ free expression rights, especially in the digital age. (It will also, incidentally, likely be the first mention of SnapChat in Supreme Court jurisprudence.) The students in Tinker wore black armbands to school to protest the Vietnam War in 1965; students today may blackout their social media in support of political or social causes. CDT has long argued that the First Amendment protects the right of young people, especially older teenagers, to speak and gather information online.
As the Electronic Frontier Foundation explained in its amicus brief in support of B.L., minors use the internet outside of school to speak and seek information about a host of topics. Social media, in particular, allows young people to connect with others, express themselves creatively, engage in politics and activism, seek out information, and share their own experiences and views. Recently, for example, teenagers have used TikTok to campaign for presidential candidates and debate political issues, and organized Black Lives Matter Protests on Twitter and Instagram. Students also use the internet to publish valuable, First Amendment protected journalism outside of school, as the Student Press Law Center explains in its amicus brief.
Extending Tinker’s exception to students’ speech rights outside the school environment would give schools too much power to punish students for disfavored online speech. Courts have upheld bans or punishments of a variety of on-campus student speech on the basis that it may substantially disrupt school activities. For example, under the Tinker rule, a court upheld a school district’s ban on students, many of whom were Hispanic, wearing shirts that read “We are not criminals” in response to an immigration bill. Another court upheld a school district’s punishment of high school football players who signed a petition calling for the removal of a coach accused of abusing players. These cases show how extensively Tinker permits school administrators to restrict students’ ability to speak their minds and advocate for causes important to them. The Court should be wary of extending schools’ authority to punish off-campus speech, too.
Applying Tinker’s exception outside the school environment would also leave students confused about what speech is or is not permitted at home, online, and in their communities. The standards set by student speech cases can confound even federal judges, some of whom have reached different conclusions about the exact same speech. For example, courts have disagreed about whether a school may prohibit students from wearing a bracelet that says, “I ♥ boobies (Keep a Breast)” as part of a breast cancer awareness campaign.
If Tinker’s exception were to apply outside the school environment, public school students — especially students of color, students with disabilities, and LGBTQ students — will undoubtedly fear being punished for their off-campus speech and censor themselves as a result. As a group of school discipline professors who filed an amicus brief in support of B.L. explained, studies demonstrate that Black students, students with disabilities, and LGBTQ students already face disproportionate punishments compared to their peers. If schools can more easily punish speech outside the school environment, these students, in particular, may decide it is safer to limit their online posts and other speech outside of school, especially on controversial topics or where students’ political views differ from those of school administrators.
In fact, all students with unpopular views will face a strong incentive to self-censor if Tinker’s exception to students’ speech rights applies outside the school environment. In practice, Tinker makes controversial speech more punishable because it allows schools to punish speech that causes or may cause a disruption, and unpopular speech is more likely to cause a disruption than sharing widely accepted views. Applying Tinker’s exception off-campus would leave students with beliefs outside the mainstream no place to express themselves free from the threat of school punishment.
The school district argues Tinker’s exception must apply outside the school environment so that schools can deal with bullying and harassment that occurs outside of school. Bullying and harassment of students and teachers, especially online, is a serious concern that schools need to be able to address. But empowering schools to punish all student speech that is completely outside the school environment is not necessary, and it is not the answer to online bullying for two reasons.
First, even if Tinker’s exception to students’ speech rights does not apply outside the school environment, schools can still punish bullying or harassing speech in some circumstances. As B.L. argues in her brief, schools can constitutionally punish speech that falls outside First Amendment protections — as in the case of true threats, for example. Schools can also punish speech integral to prohibited conduct, including on- or off-campus bullying that creates an objectively hostile school environment, negatively impacting another student’s access to education and rising to the level of harassment under state or federal law.
Second, school administrators have many tools with which to respond to bullying and harassment, beyond punishing a student solely for their off-campus speech, as described in the amicus brief by school discipline professors. For example, schools can use well-studied, nonpunitive techniques developed by experts to teach all students positive behavior; they can also provide emotional education, mental health support, and restorative justice options to young people at risk of bullying or being bullied. These approaches may even be better than punitive measures, which some studies suggest harm students, do not deter bullying, and may increase the risk of future offenses.
Finally, even if the Court believes that bullying and harassing speech that occurs outside the school environment is not entitled to full First Amendment protection, it should not apply Tinker’s exception to all student speech outside the school environment. Rather, in a future case actually presenting the issue of off-campus bullying and harassment, the Court could consider adopting a categorical approach to Tinker’s exception for such speech, similar to that urged by three law professors in their amicus brief in support of B.L.
Under this approach, bullying and harassing student speech outside the school environment — but not other types of student speech — could be punished if it met Tinker’s substantial disruption standard. To provide clarity and reduce the risk of allowing too much student speech to be punished, the Court would need to carefully and narrowly define bullying and harassing speech. Given the breadth with which lower courts have applied the substantial disruption standard to punish on-campus student speech, the Court would also need to also give additional guidance on the application of that standard. In particular, the Court should recognize that off-campus speech is generally less likely to cause a substantial disruption at school.
But the question of bullying is not before the Court in Mahanoy Area School District v. B.L. School administrators punished B.L. for her speech on the basis that it violated cheerleading team rules prohibiting negative, disrespectful, and foul language. This is a wholly inappropriate use of school authority to silence student speech that it dislikes, under the pretext that it might cause disruption in the school.
B.L.’s snap may have lasted only 24 hours, but the resulting Supreme Court decision could impact student speech rights for decades to come. Student speech, especially by young people in marginalized groups, deserves and requires full First Amendment protection outside of schools. Protecting student speech in this case could be a snap — if the Court limits Tinker’s exception to the school environment, where it belongs.