Last week, the U.S. Supreme Court, in a much-awaited opinion, affirmed a Third Circuit U.S. Court of Appeals’ ruling that a Pennsylvania school district violated a student’s First Amendment free speech right when it punished her for her vulgarity-ridden off-campus Snapchat post critical of a school team and school personnel. At the same time, however, the Supreme Court expressly disagreed with the
Third Circuit’s ruling that the authority of school districts to regulate student speech in limited circumstances does not extend to off-campus speech. The Court made clear that it is not a question of how or where speech is made—whether on school grounds or online—but its impact or effect. The following brief analysis of the opinion seeks to highlight what you need to know about how the Court viewed this cheerleader’s Snapchat post and where lines relating to off-campus
speech may be drawn in the future.
After not being selected for the school’s varsity cheerleading squad or for a position on a private softball team, the student, B.L., while off-campus, posted on Snapchat images and words expressing her frustration at not being selected for the varsity cheerleader squad or for the position on a private softball team. Her post included vulgar language and gestures. The post went only to her
Snapchat “friend” group. The images, however, would spread, as some recipients showed them to other students or captured images of the posts and shared them. A couple of upset students advised the cheerleading coaches about the posts. After discussing the matter with the principal, the coaches decided that because the posts used profanity in connection with a school-related activity, their conduct violated team and school rules, and the school disciplined B.L. by suspending her from
the junior varsity cheerleading squad for the subsequent school-year.
In its opinion, the Supreme Court recognized that under the landmark Tinker v. Des Moines Independent Community School District opinion, students do not shed their rights at the schoolhouse gate, but schools do have special interests in regulating on-campus speech that materially disrupts classwork, involves a substantial disorder, or invades the rights of other students. The
Court noted that the Third Circuit had held the Tinker standard did not apply in this particular case because the relevant conduct occurred outside of school-owned, operated, or supervised channels and was not reasonably interpreted as bearing the school’s imprimatur. The Supreme Court disagreed but recognized that schools' regulatory interests with regard to speech that takes place off campus remains significant in some circumstances: “These include serious or severe
bullying or harassment targeting particular individuals; threat aimed at teacher or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers or participation in online school activities; and breaches of school security devices, including material maintained within school computers.” Yet the Court agreed with the Third Circuit that the school district violated the cheerleader’s First Amendment rights, because the speech qualified as
protected speech and did not fall into one of the categories of off-campus speech that schools may regulate.
The Court explained it announced no broad, highly general First Amendment rule as to what counts as “off-campus” speech and whether First Amendment standards must yield to school interests in preventing disruption of learning activities or protection of the school community. The Court cited three features of off-campus speech that often, or may always, “distinguish schools’ efforts to
regulate on-campus speech” and which diminish the strength of the unique educational characteristics that might call for First Amendment deference:
First, in relation to off-campus speech, a school will rarely stand in loco parentis. “Geographically speaking, off-campus speech will normally fall within the zone of parental rather than school-related responsibility.”
Second, “from the student speaker’s perspective, regulation of off-campus speech, when coupled with regulation of on-campus speech, include all the speech a student utters during the full 24-hour day. . . When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.”
Third, because American’s public schools are “the nurseries of democracy,” the Court reasons, “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.” Representative democracy only works, the Court explains, “if we protect the ‘marketplace of ideas’.” Protection of free exchange of an informed public opinion that is transmitted to
lawmakers for purposes of lawmaking reflective of the People’s will involves protection of unpopular ideas.
“Taken together,” the Court advises, “these features of much off-campus speech that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference.”
Applying to these considerations to B.L’s off-campus speech the Court readily framed her speech as off-campus and entitled to First Amendment protection:
B.L.’s speech was critical of the team coaches and the school— “criticism of the rules of a community of which B.L. forms of part.” The Court noted that B.L.’s posts did not amount to fighting words. While vulgarity was involved, her speech was not obscene as the Court has understood the term. “To the contrary, B.L. uttered the kind of pure speech to which, were she an adult, the First
Amendment would provide strong protection.”
The Court also addressed where she spoke and to whom:
“Consider too when, where, and how B. L. spoke. Her posts appeared outside of school hours from a location outside the school. She did not identify the school in her posts or target any member of the school community with vulgar or abusive language. B. L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends. These features of her speech, while
risking transmission to the school itself, nonetheless…. diminish the school’s interest in punishing B. L.’s utterance.”
As to the schools’ interest in prohibiting vulgar language to criticize a school team or its coaches, the Court’s opinion breaks that interest into three parts and address them as follows:
First, it rejected the argument asserting the “school’s interest in teaching good manners and consequently in punishing the use of vulgar language aimed at part of the school community.” It said, “The strength of this anti-vulgarity interest is weakened considerably by the fact that B. L. spoke outside the school on her own time.”
Second, the majority rejected the school’s claim “that it was trying to prevent disruption, if not within the classroom, then within the bounds of a school-sponsored extracurricular activity.” The Court could find no evidence in the record of the sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify the school’s action.”
Third, the school presented some evidence that expressed (at least indirectly) a concern for team morale. The majority concluded: “There is little else, however, that suggests any serious decline in team morale—to the point where it could create a substantial interference in, or disruption of, the school’s efforts to maintain team cohesion. As we have previously said, simple ‘undifferentiated fear or
apprehension . . . is not enough to overcome the right to freedom of expression.’”
In conclusion, the Court reaffirmed its longstanding protection of speech afforded by the First Amendment. “We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.” The Court disagreed with the Third Circuit’s rationale, while agreeing the school
discipline administered for off-campus speech with no real, discernible, disruptive effect violated the student’s First Amendment rights.
Each case involving discipline for off-campus speech implicates First Amendment rights and will generally be very fact specific. Whether the result of the off-campus speech creates a material or substantial disruption to the school calls for the exercise of reasonable prudence and careful judgment. For this reason, it is recommended that school personnel consult with their school
attorney should they have any questions regarding imposition of discipline for off-campus speech.
Author: John Janssen