Can public school officials regulate the off-campus speech of their students?
As Protect The 1st has reported, long-standing precedent from the Vietnam-era Tinker v. Des Moines Independent Community School District ruling held that school officials have a limited ability to regulate on-campus speech if it “substantially interfere[s] with the work of the school.”
But since the Tinker decision, social media has sometimes blurred the boundaries between on-campus and off-campus speech. In Mahanoy Area School District v. B.L., a school removed Brandi Levy, then 14 years old, from the school’s cheerleading squad after she made generous use of a common Anglo-Saxon verb to express her views about her school and sports – underscored with an image of her and a friend making a familiar hand gesture.
A federal district court ruled in favor of the cheerleader in 2019, saying that even if Tinker applied, Brandi Levy’s speech wasn’t sufficiently disruptive to override her First Amendment rights. The U.S. Court of Appeals for the 3rd Circuit, however, went further, holding that Tinker does not apply to off-campus speech at all.
In its 8-1 ruling today, the Supreme Court held that Levy’s speech was protected.
The opinion reads almost like something from The Onion, with justices solemnly weighing in on what was said at the Cocoa Hut convenience store and how ten minutes in an algebra class might have been disrupted by the post. Associate Justice Stephen Breyer wrote for the majority, acknowledging that it might be “tempting to dismiss” the student’s “words as unworthy of the robust First Amendment protections discussed herein.” Justice Breyer added: “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.” Thanks to the Court’s ruling, it is not the place of government officials to decide what speech they deem worthy or “superfluous,” or whether the colorfulness of the expression is necessary or not, polite or uncouth. That is largely the point of “freedom,” after all – the free get to decide those questions for themselves.
The Court’s ruling, however, did not eliminate all potential regulation of off-campus student speech, particularly where the in-school consequences might be more serious, as in the case of cheating, or bullying and threats towards classmates and teachers. But noting that regulating off-campus speech generally involved a lesser interest on the part of the school and imposed a greater burden on students, the Court left for another day the First Amendment rules for regulation of other, more troubling, off-campus speech.
But for now, students are free to express themselves, even with colorful passion, on various issues large and small without fear of school officials’ overly intrusive efforts to police their speech.
And that counts as a win both for students and for the First Amendment.