“America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the ‘marketplace of ideas.’ ”
– Justice Stephen Breyer, writing for the majority of the Supreme Court of the United States
The everyday life of a public school student has drastically changed since 1969, when the U.S. Supreme Court first held public schools have a special interest in regulating substantially disruptive student speech that occurs on-campus. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) (ruling in favor of the students because their expression was not disruptive). While schools have the ability to regulate some student speech, schools, parents and students alike have been left to wonder: to what extent can a school regulate a student’s off-campus speech? Last Wednesday, the Supreme Court began to answer this question.
Brandi Levy, a Pennsylvania high school student was suspended from cheerleading after broadcasting a colorful Snapchat message to approximately 250 of her private Snapchat friends while off school grounds. Snapchat is a social media application that allows users to post and send photos and videos that disappear after a twenty-four-hour period. With a middle finger raised, fourteen-year-old Ms. Levy captioned a four-letter word several times in her posted Snapchat message, voicing her objections with a caption that read: “f*** school,” “f*** softball,” “f*** cheer” and “f*** everything.” (Asterisks were not used in the original caption.) Importantly, Ms. Levy posted this message on the weekend, while she was off school grounds at a convenience store. Another student took a screenshot of the message, and then showed the screenshot to her mother, a cheerleading coach. The school ultimately suspended Ms. Levy from the cheerleading team on the grounds that her Snapchat message violated team and school rules.
Ms. Levy sued the school and won at the trial and appellate levels. The school appealed to the U.S. Supreme Court.
In an 8-1 decision, the Supreme Court of the United States held that Ms. Levy’s First Amendment rights were violated. The Court reasoned that the school’s interests in teaching good manners, preventing disruption, and preserving team morale were not sufficient to overcome Ms. Levy’s interest in free expression. The Court noted that there were three primary features distinguishing off-campus speech, including: (1) greater parental oversight when students engage in off-campus speech, (2) the heavy burden that regulating both on-campus and off-campus speech (i.e., all student speech) would impose on both schools and students, and (3) the school’s interest in protecting unpopular opinions of their students, especially when the speech takes place off-campus.
However, Justice Breyer, delivering the majority opinion of the Court, did recognize some situations where the school may have an interest in regulating off-campus student speech. The Court laid out several factors for lower courts to weigh in assessing the rights of school administrators to regulate certain speech in non-school settings. For instance, a school would likely have a sufficient interest in regulating a student’s off-campus speech where the student was bullying or harassing a fellow student or a teacher. A school might also have a sufficient interest in regulating off-campus speech where the student threatened a teacher or another student, encouraged a fellow student to break school rules, or a student’s off-campus breach of security for school devices. By recognizing these occasions where a school can regulate off-campus speech, the Court declined to create a broad rule governing what constitutes off-campus student speech and when such speech can be regulated by a school. Rather, the Court reasoned Ms. Levy’s situation could act as an example of when a school’s interests do not outweigh the free speech rights of the school’s students.
Justice Alito, joined by Justice Gorsuch, concurred in judgment, noting the extent to which a school can regulate off-campus speech depends on the nature and circumstances of the speech. Justice Alito maintained a school has less of an interest in regulating off-campus speech where the speech is not directed at the school, school administrators, other students, or teachers and expresses a matter of public concern.
The sole dissenter, Justice Thomas, cited a 150-year history to support the school’s decision to suspend Ms. Levy from the cheerleading team. Justice Thomas reasoned the majority reached the improper result because schools had historically been allowed to punish students for similar speech. In Justice Thomas’s view, a school has a sufficient interest in regulating speech where it is foreseeable and likely the student’s speech will reach campus.
This decision makes clear that there are limits on a public school’s authority to discipline students’ off-campus speech. However, the Court recognized that there could be situations where school administrators would be justified in taking appropriate action when the case warrants, although this case was not one of them. Specifically, the Supreme Court explained that schools may in fact punish some speech, especially if it is harassing, bullying, cheating, or otherwise disruptive.
The Supreme Court’s last major decision regarding student free speech occurred in 2007, when the Court ruled in favor of a school that suspended a student for displaying a banner that said “Bong Hits 4 Jesus” at a school sanctioned event. Ms. Levy’s case is the first student speech case the Supreme Court has heard that directly addressed off-campus speech that is not school sanctioned.
While Ms. Levy’s case provides guidance regarding the extent of First Amendment protection to off-campus speech, it does not provide a comprehensive rule or definition of what exactly is considered off-campus speech. Rather, the Court identified factors that schools and courts should consider regarding student speech that occurs off-campus. With the advent of social media, a student can easily engage in off-campus speech that will reach a large population of students. Provided students have access to technology, such speech can be accessed on school grounds, blurring the distinction between on and off-campus speech. Remote learning, which played a large role in education throughout the Covid-19 pandemic, further clouds this distinction.
The Supreme Court did not issue a bright line rule. The Court has left open the question of when schools can and cannot regulate off-campus speech and did not define exactly what constitutes off-campus speech. However, as social media and technology continue to play a prevalent role in the life of the average student, future student speech cases are likely to arise and give a more definitive answer to these pressing questions. As lower courts increasingly define and clarify this issue, schools, students, and parents/guardians should stay informed on the progress and updates to student speech protections under the First Amendment.
A copy of this decision, titled Mahanoy Area School District v. B.L., can be read here: https://www.supremecourt.gov/opinions/20pdf/20-255_g3bi.pdf
Special thanks to Liesl Eschbach.