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Analysis

Student Free Speech Rights at the Supreme Court

A student is fighting her punishment for an off-campus social media post.

April 27, 2021

The Supreme Court declared more than a half-century ago that public school students have First Amend­ment rights. Now the justices are consid­er­ing what that means in the age of social media.

In 2017, Brandi Levy, then a 14-year-old student at a small public high school in Pennsylvania, tried out for her school’s varsity cheer­lead­ing squad. The week­end after her tryout, she learned she did not make the team and would be placed on the junior varsity squad for the second year in a row. This news came around the same time that she failed to secure her preferred spot on the school’s soft­ball team and final exams were just around the corner. Levy was upset, and in typical teen­ager style, she turned to social media to express her frus­tra­tions. She posted a photo on her personal Snapchat account gestur­ing with her middle finger and a caption that read “f— school f— soft­ball f— cheer f— everything”.

The post was shared only with her follow­ers, and, like all Snapchat content, it disap­peared after 24 hours. In that time, however, a fellow student took a screen­shot and shared it with the cheer­lead­ing coach. Despite the fact that it was uploaded off-campus and did not target, threaten, or harass anyone, the coach suspen­ded her from the team for the rest of the year on the grounds that Levy had viol­ated the cheer­lead­ing program’s code of conduct, which required that students “have respect for [their] school, coaches, teach­ers, other cheer­lead­ers and teams” and not post any “negat­ive inform­a­tion” about the program. Levy and her parents protested, but the prin­cipal and school board upheld the coach’s decision.

The U.S. Court of Appeals for the Third Circuit ruled in Levy’s favor last year, hold­ing that schools may not regu­late off-campus speech on social media, at least where the speech does not threaten viol­ence to others.

Now Levy and her teen­age use of F-bombs on Snapchat are at the center of a U.S. Supreme Court case that could reshape the status of student speech. Oral argu­ments in the case, Mahanoy Area School District v. B.L., are set to take place on April 28; ulti­mately, the justices will determ­ine whether and how schools can regu­late off-campus student speech. The Bren­nan Center joined the Elec­tronic Fron­tier Found­a­tion and the Pennsylvania Center for the First Amend­ment in urging the Court to uphold the Third Circuit’s decision and preserve the scope of student free speech.

The outcome in this case will turn on the Supreme Court’s applic­a­tion of its 1969 land­mark case, Tinker v. Des Moines, to off-campus speech. The Court held that neither students nor teach­ers “shed their consti­tu­tional rights to free­dom of speech or expres­sion at the school­house gate,” cement­ing students’ First Amend­ment rights in schools. The decision estab­lished that public schools could not censor free speech unless it “mater­i­ally and substan­tially” interfered with the oper­a­tions of a school.

As a result, students have been able to parti­cip­ate in the national discourse on key issues, from protest­ing against police brutal­ity to organ­iz­ing around gun viol­ence in the wake of the Park­land shoot­ing. Social media has become a partic­u­larly vital plat­form for students to engage in a wide vari­ety of self-expres­sion, polit­ical speech, and activ­ism. Espe­cially amid lock­downs and remote learn­ing because of the coronavirus pandemic, social media has proven to be a crit­ical tool for students to retain connec­tions with their school communit­ies.

In Levy’s case, the Third Circuit held that Tinker’s excep­tion permit­ting schools to regu­late disrupt­ive speech does not apply to off-campus speech like social media. The appeals court added that even if Tinker did apply, the school would not have been justi­fied in punish­ing Levy because her post “is not close to the line of student speech that schools may regu­late.”

If schools were given wide latit­ude to penal­ize students for their off-campus speech, there would be little incent­ive not to monitor their students’ online activ­ity. Monit­or­ing students’ social media raises a host of concerns, however, includ­ing the chilling effect, intru­sion into privacy, and dispar­ate impact on minor­ity, under­served, or vulner­able students. Age, gender, and racial and cultural differ­ences can also inform how social media posts are inter­preted, and young people’s online activ­ity is often extremely context depend­ent.

In 2014, for example, an Alabama school district hired a former FBI agent to scour the social media accounts of nearly 600 students as part of a school safety initi­at­ive. The program resul­ted in the expul­sion of 14 students, 12 of whom were Black — a troub­ling figure in a school district that was only 40 percent Black. The South­ern Poverty Law Center invest­ig­ated the matter and found that the district’s policies were push­ing out students that did not pose a threat to others. One student came under scru­tiny for “hold­ing too much money” in a photo, and another was suspen­ded for wear­ing a sweat­shirt honor­ing her late father because it was perceived as a sign of gang member­ship by school offi­cials.

Endors­ing the Pennsylvania school’s actions — punish­ing a student for issu­ing an obscen­ity while off campus — would give school offi­cials nearly limit­less discre­tion to police students’ private commu­nic­a­tions and make students suscept­ible to discrim­in­at­ory enforce­ment. If schools are given free rein to censor off-campus speech perceived as disrupt­ive or even disrespect­ful, it does­n’t take much to imagine what might happen to students who take to social media to speak out about school policies, racism, or any other legit­im­ate complaints connec­ted to their learn­ing exper­i­ences — or how students will choose instead to censor them­selves. Students’ right to free expres­sion is an essen­tial part of their educa­tion.