The Supreme Court heard oral argument yesterday in Mahanoy Area School District v. B.L., a case asking whether public school officials can regulate their students’ off-campus speech. The case arose after a cheerleader one Saturday posted a Snapchat message with a picture of her and her friend raising their middle fingers captioned, “F*** school f*** softball f*** cheer f*** everything.” For this, she was removed from the cheerleading team for the year.
This isn’t the first time the Supreme Court has addressed students’ rights. In Tinker v. Des Moines Independent Community School District it held that, although students have First Amendment rights, schools can punish on-campus speech that “substantially interfere[s] with the work of the school.” In today’s case, the school board argued that Tinker should extend to off-campus speech because “students’ ubiquitous access to the Internet and social media have blurred any on-campus/off-campus distinction.”
The justices recognized that this is a difficult question, but ultimately seem likely to side with the cheerleader. Some justices suggested that even if Tinker applied off campus, the cheerleader’s conduct didn’t meet its standard:
Justice Barrett seemed to side fully with the cheerleader. She instructed Lisa Blatt, the school district’s attorney, to “assume … that high school students enjoy the same free speech rights as everyone else,” and told Blatt there was not a “lot of doctrinal support for saying that Tinker applies” off campus.
Other justices seemed unfriendly to the cheerleader’s position. Justice Thomas agreed that “if it’s on social media, where you post it … doesn’t really matter.” These posts, he recognized, could happen anywhere: “[H]ow would that make any difference, where you post it?”
Chief Justice John Roberts likewise expressed skepticism of the cheerleader’s position. He wondered whether her argument means that, “no matter how disruptive a particular speech activity off campus … is to the school, it has no choice but to tolerate that because it can’t take any action against the student.”
This case could go one of several ways. Tinker could apply generally, but not allow the school to punish the cheerleader’s conduct. Alternatively, it could apply both generally and allow the school to punish the cheerleader for her post. The most speech-protective option, and the outcome Protect The 1st endorses, would be a holding that Tinker does not apply off campus, and that off-campus speech is fully protected by the First Amendment.
Unfortunately, because of the justice’s divergent questions, the oral argument left more questions than it answered. Protect The 1st hopes the Court recognizes that the state’s power to control speech faces full First Amendment protection outside the schoolhouse gate. We expect an opinion in June and will report back then.