This post was authored by Adam Santucci and Daniel Serrano. Adam is the Chair of the Public Finance and Government Services Group at McNees. Danny is a CAMP 1L Intern with McNees. Danny is currently a student at the Pennsylvania State University and expects to earn his J.D. in May of 2023.
On June 23, 2021, in an 8-1 decision, the Supreme Court of the United States issued its opinion in Mahanoy Area Sch. Dist. v. B.L., holding that a high school’s interest in preventing students from using vulgar language to criticize school sports teams or staff does not override students’ rights to free expression under the First Amendment. The Court made clear that students do not “shed their constitutional rights to freedom of speech or expression” even “at the school house gate.”
Here is the background. After being denied a position on the school’s varsity cheerleading team, B.L., a ninth-grader at Mahanoy Area School District, messaged a group of 250 “friends” on the social media platform Snapchat, where she expressed frustration with the school and cheerleading team. Her messages used “vulgar language and gestures” while criticizing the school and cheerleading team. Although the images and messages were set to expire within 24 hours, the images spread throughout the school and were brought to the attention of the cheerleading coaches. As a result, the school suspended B.L. from cheerleading for a year. In response to the school’s disciplinary actions, B.L.’s parents appealed the suspension to the school board with no success. When that failed, they sought relief in federal court.
Relying on the Supreme Court’s rationale in Tinker v. Des Moines Indep. Cmty. Sch. Dist., the District Court for the Middle District of Pennsylvania ruled that B.L.’s punishment violated the First Amendment because her Snapchat posts did not cause substantial disruption at the school. On appeal, the Third Circuit affirmed the district court’s decision; however, the panel majority did not rely on Tinker. Instead the court held that the fact that her conduct took place outside of school changed the analysis. The court held that schools had no special license to regulate off campus speech.
The Supreme Court ultimately affirmed the ruling of the Third Circuit; but did not adopt the view that schools could not regulate all “off campus” speech. SCOTUS recognized that some off campus circumstances might implicate a school’s interests, such as (1) serious or severe bullying or harassment targeting specific people; (2) threats aimed at teachers or students; (3) failing to follow rules concerning lessons, writing papers, use of computers, or participation in other online school activities; and (4) breaches of school security devices. In these cases, a school could seek to discipline students for their off campus speech. Bottom of Form
In analyzing the circumstances of B.L.’s case, the court determined that B.L.’s statements, while “vulgar,” lacked any features that would place it outside the ordinary protection of the First Amendment—B.L.’s statements did not amount to fighting words and her speech did not constitute obscenity as it is understood by the Court. Instead, B.L.’s speech was the kind of speech “which, were she an adult, the First Amendment would provide strong protection.” The circumstances surrounding B.L.’s speech diminished the school’s interest in regulation—her statements occurred outside of school hours and off school property, did not identify the school, no member of the school was targeted with “vulgar or abusive” language, and was transmitted via B.L.’s personal phone to a private audience. Furthermore, little evidence existed to suggest any substantial interference or disruption of the school’s efforts “to maintain cohesion on the school cheerleading squad.” As such, the school violated the First Amendment penalized her for the Snapchat messages she sent out.
The final message to school districts throughout the U.S. was clear, students attending public schools possess the same First Amendment protections afforded to everyone else in the country, and that to hold otherwise would restrict speech in a manner inconsistent with the First Amendment.