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Mahanoy Area School District v. B.L. (Amicus Brief)

The Brennan Center filed an amicus brief urging the Supreme Court to protect students’ right to free speech while they are off-campus.

Published: April 2, 2021

Update: On June 23, 2021, the Supreme Court ruled in favor of B.L., a high school cheer­leader who was suspen­ded from the cheer team after using obscen­it­ies on Snapchat. The Court held that the school over­stepped in discip­lin­ing B.L. for her off-campus speech, affirm­ing the First Amend­ment rights of public-school students. Justice Breyer recog­nized in his opin­ion that schools are “nurs­er­ies of demo­cracy” and that "the school itself has an interest in protect­ing a student’s unpop­u­lar expres­sion, espe­cially when the expres­sion takes place off campus." Justice Breyer went on to expand on this point: “That protec­tion must include the protec­tion of unpop­u­lar ideas, for popu­lar ideas have less need for protec­tion. Thus, schools have a strong interest in ensur­ing that future gener­a­tions under­stand the work­ings in prac­tice of the well-known aphor­ism, ‘I disap­prove of what you say, but I will defend to the death your right to say it.’” Social media is a crit­ical space for students to engage in a wide vari­ety of self-expres­sion, polit­ical speech, and activ­ism. We are pleased that the Court recog­nized this and reaf­firmed that students retain the right to express them­selves freely outside school. Read the Court’s opin­ion here.

Back­ground: 

On March 31, 2021, the Bren­nan Center, along with the Elec­tronic Fron­tier Found­a­tion (EFF) and the Pennsylvania Center for the First Amend­ment, filed an amicus brief arguing that state­ments made by students on social media when they are off-campus should be fully protec­ted by the First Amend­ment. In Mahanoy Area School District v. B.L., a high school cheer­leader posted obscen­it­ies about her cheer program to Snapchat after she failed to make the varsity squad, which viol­ated the cheer­lead­ing program’s rule that students cannot post any “negat­ive inform­a­tion” about cheer­lead­ing online. The posts were uploaded over the week­end and outside of school grounds, but one of her follow­ers took a screen­shot and shared it with school author­it­ies, who suspen­ded her from parti­cip­at­ing in the cheer program for a year. The student and her family sued the school district in response.

The Third Circuit Court of Appeals ruled last year that an excep­tion from Tinker v. Des Moines – a Viet­nam War-era case about students wear­ing black armbands in protest of the War – permit­ting regu­la­tion of students’ speech where it causes mater­ial and substan­tial disrup­tion to the oper­a­tions of school does not apply to off-campus speech like social media, at least where it does not threaten viol­ence to others. The appeals court held that, even if off-campus speech shared on social media finds its way into school via other students’ smart­phones or devices, schools do not have the power to discip­line the original poster for it. 

The Supreme Court gran­ted certi­or­ari earlier this year, and the case is being litig­ated by the ACLU of Pennsylvania. The Bren­nan Center joined a brief draf­ted by EFF in support of the student, urging the Supreme Court to uphold the Third Circuit’s decision. The brief argues that the Tinker excep­tion should not allow public schools to punish off-campus speech and that it is crit­ical to limit the Tinker excep­tion to on-campus speech given the cent­ral role social media plays in students’ lives. Social media has increas­ingly become a plat­form for students to engage in a wide vari­ety of self-expres­sion, polit­ical speech, and activ­ism. Expand­ing Tinker to allow public schools to punish students for speech expressed off-campus would dramat­ic­ally expand schools’ power to police students’ private lives and chill import­ant, consti­tu­tion­ally protec­ted expres­sion. 

The Liberty and National Secur­ity Program has raised concerns regard­ing the monit­or­ing of K-12 students’ social media, includ­ing op-eds in the Wash­ing­ton Post and Sun Sentinel, a resource on school district expendit­ures on monit­or­ing tools, and a joint state­ment of civil and human rights concerns with the Center for Demo­cracy and Tech­no­logy. If schools are given broad author­ity to punish students for speech on social media, they will have incent­ive to step up their monit­or­ing; if they are limited to circum­stances in which the harm arising from the speech is signi­fic­ant, not merely disrupt­ive, they are likely to spend less time track­ing students’ social media.