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One of the biggest student free speech cases in the last half century started with a high school cheerleader and a profanity-laced Snapchat. The implications of that terse, ephemeral message extend well beyond the original hundred-plus friends with whom the freshman student shared her post.
In a decision today, the U.S. Supreme Court ruled 8-1 that a public school violated the First Amendment when it punished a student for speech that took place off-campus and outside of a school function.
Americans for Prosperity’s sister organization, Americans for Prosperity Foundation, and The Rutherford Institute were two of 366 parties who filed 24 amicus briefs in support of freedom of speech for students.
Over fifty years have passed since the Supreme Court famously stated in Tinker v. Des Moines that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate;” and another fifty years since the Supreme Court recognized in Meyer v. Nebraska, that the Fourteenth Amendment protects “the natural duty of the parent to give his children education.”
While students’ right to speak in school and parents’ rights to raise their children have been acknowledged for nearly a century, new technology and one student’s strongly-worded Snapchat post placed school authority over student speech before the Court again in a case that raised a new and troubling possibility: that schools could punish students for off-campus speech during private time.
As AFPF and The Rutherford Institute argue:
With the advent of social media, fundamental rights are imperiled when schools seek to regulate private behavior. While this case turns on the use of Snapchat, expanding school authority over off-campus speech naturally implicates other technologies, allowing schools to observe students’ home life, including spaces in which parents or other family members have a right to privacy and autonomy. It is not enough to argue that schools have only good intentions; pervasive surveillance imperils lawful behavior by students and the individual rights of conscientious parents who would self-censor to avoid rebuke for their children. And, as recent experience with remote schooling shows, allowing schools to see into children’s homes can result in penalizing children before the facts have been established or the parents notified—good intentions notwithstanding.
In Mahanoy School District v. B.L. the American Civil Liberties Union asked the Court to decide whether a public school may regulate off-campus speech.
As the ACLU details in its briefs, the Snap referenced cheer, softball, and school, in colorful and derogatory terms, but did not name the school, the team, or any individual. The Snap, which is ephemeral by nature, would have disappeared twenty-four hours after it was sent.
But fate, in the form of another cheerleader, intervened, when she saved the Snap and showed it to a cheerleading coach, who decided to take disciplinary action against B.L. for making a negative comment about cheerleading. B.L. was thus banished from cheerleading for the following school year.
B.L. filed suit, arguing that her First Amendment right to free speech was infringed by the school when it punished her for speech made off campus and outside of school hours.
The district court agreed and the Third Circuit affirmed, holding that under Tinker v. Des Moines, “The answer is straightforward: The school can punish any disruptive speech or expressive conduct within the school context that meets Tinker’s standards—no matter how that disruption was “provoke[d].” But, because “B.L.’s snap had not caused any actual or foreseeable substantial disruption of the school environment,…her snap was also not subject to discipline under Tinker.”
The school board sought Supreme Court review, asking the Court to bless the school’s desire to expand Tinker to off-campus speech that “would cause,” in the school’s estimation, disruption. That interpretation represents a drastic departure from Tinker that would grant schools broad authority to regulate off-campus speech based on the school’s subjective projection of what might happen as a result of a student’s speech.
The issue in Tinker was actually the opposite. There, the question was whether the First Amendment protected the symbolic wearing of a black armband in school to protest the Vietnam War. The Supreme Court held that First Amendment protection of speech extended to the “silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners.”
Tinker thus addressed only speech in school and pushed back the authority of the school to regulate it to the limited circumstances in which the speech disrupted school operations or the individual rights of another student.
Since Tinker, the Court has granted several narrow exceptions to the in-school rule, but none that recognize a generalized authority of public schools over students off-campus speech.
For example, in Morse v. Frederick the Court recognized an extension of school authority to a “school event” that took place off-campus, during school hours, and with teacher supervision, to hold that “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.”
The Court emphasized the narrowness of the holding, which inspired seven justices to write separately to express concern that the carve-out from Tinker was either inappropriate or could only be justified if held to its narrow facts.
Here, the school board argued that the First Amendment does not prevent schools from regulating off-campus speech that “targets the school environment” and that schools can discipline speech that school officials “reasonably conclude would” materially disrupt school operations or the rights of other students.
These vague standards, if adopted, would inject a measure of conjecture into school authority over student speech, allowing punishment for speech that has caused no actual harm.
This approach is exactly what the Court cautioned against when it stated in Tinker,
“In our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”
The Court today held that the school officials here likewise failed to meet the “demanding standard” of Tinker to justify punishing student speech.
This case matters because Tinker and Morse already carved out an exception to speech rights for students in light of the compulsory nature of public education and the competing need of schools to maintain an environment in which the school can fulfill its educational functions and other students’ rights can be sustained.
Because students’ speech rights enjoy less First Amendment protection in school than out-of-school and less protection than provided to all other speakers, holding the line on school authority is imperative to protecting fragile but indispensable speech rights.
Recent experience with remote schooling confirms that the ability to monitor and censure student behavior away from school inevitably results in the actuality of that scrutiny — leading to punishment of behavior that up to now has been firmly within the private sphere.
It would be easy to dismiss today’s decision as a simple fight over a vulgar Snapchat post. But as the Court explains, “[S]ometimes it is necessary to protect the superfluous in order to preserve the necessary.”
While not a categorical win for the First Amendment rights of students, and the rights of their parents, today’s decision reminds public school officials of their First Amendment obligations.
That’s a victory worth cheering for.
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