The free speech case so complicated it seems to have stumped the Supreme Court

Supreme Court justices Amy Coney Barrett, Neil Gorsuch, Elena Kagan, and Brett Kavanaugh attend President Joe Biden’s inauguration on January 20, 2021 in Washington, DC. 
Jonathan Ernst/Getty Images

Mahanoy Area School District v. B.L, which the Supreme Court heard on Wednesday, is a tough case. And it’s not tough because it presents the kind of politically toxic questions that often cause the justices to retreat into their partisan corners.

Members of the Court from across the political spectrum spent Wednesday morning struggling to determine when a school district should be allowed to discipline students for speech that they engage in when they are not at school or engaged in any kind of school-sponsored activity. The question has become all the more difficult now that the internet allows a student to post content over the weekend to social media that can be read by all of their classmates on Monday.

The specific issue in B.L. is fairly minor. In May 2017, Brandi Levy was a high school sophomore who tried out for her school’s varsity cheerleading squad and didn’t make the team — though she was offered a slot on the JV squad. Shortly thereafter, she posted an image of herself and a friend holding up their middle fingers to Snapchat, with the caption “fuck school fuck softball fuck cheer fuck everything.”

As punishment for this message, the school’s cheerleading coaches suspended her from cheerleading for a year.

The reason why this rather petty dispute reached the Supreme Court is that it is not at all clear whether and when the First Amendment permits schools to sanction students for off-campus speech.

In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court held that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But Tinker also held that student free speech rights are diminished within the school context. A public school may punish its students for speech that “would materially and substantially disrupt the work and discipline of the school.”

Thus, students historically enjoyed full First Amendment rights when they were away from school, and somewhat reduced rights in the school context. As Lisa Blatt, the lawyer representing the Mahanoy Area School District, conceded to Justice Sonia Sotomayor early in Wednesday’s argument, a school could not punish a student for “cursing at home” or for “cursing in her conversation as she walks to school.”

But social media blurs the line between on-campus and off-campus speech because it allows speech that was written off-campus, but could still be highly disruptive, to be seen by nearly everyone in a school community. This includes not just a venting would-be cheerleader like Levy, but a student who posts a threat to kill a teacher online, or a group of students who engage in a relentless cyberbullying campaign against one of their classmates.

Or, to take a more basic case that could have arisen even before the internet, Sotomayor expressed concern about a student who, on her way to school every day, is confronted by a group of classmates who tell her, “You’re so ugly. Why are you even alive?”

Yet, while the Court agreed to hear the B.L. case to bring some clarity to when schools should and should not be able to regulate off-campus speech, the justices on Wednesday appeared overwhelmed by the magnitude of this question. Several of them spent the oral argument feeling around for off-ramps, looking for narrow ways to resolve this particular case without having to come up with a single unifying legal rule governing off-campus speech.

It’s really hard to come up with a one-size-fits-all rule for off-campus speech

Some lower courts have tried to come up with a single rule that governs when off-campus speech should be subject to diminished First Amendment protection under Tinker. But there’s no consensus among these courts. The United States Court of Appeals for the Second Circuit, for example, has held that Tinker applies if there is a “reasonably foreseeable risk that the [speech] would come to the attention of school authorities,” while the Fourth Circuit held that Tinker applies if there is a sufficient “nexus” between the student’s speech and the school’s “pedagogical interests.”

And, at various points in Wednesday’s oral argument, members of the Supreme Court seemed to float ideas for their own tests. Justice Elena Kagan, for example, suggested that Tinker was really about “what’s necessary for a school’s learning environment.” And so off-campus speech that causes “fundamental problems” that disrupt that environment might be subject to discipline by school officials.

Justice Amy Coney Barrett, meanwhile, seemed to float an alternative test: What if speech could be said to arise within the “school environment” when “the student is relating to the school in the student’s capacity as a student.”

The problem with many of these tests is that they are vague — what on earth is a “nexus” between student speech and a school’s “pedagogical interests”? Others seem to give extraordinary power to school officials — should a student really be sanctioned for every curse word they post on social media, just because they could reasonably foresee those posts being read by their school principal? And still others don’t really seem to solve every problem raised by off-campus speech: It’s not clear, for example, how a student acts in their “capacity as a student” when they bully a classmate.

Indeed, the task of coming up with a single test to govern when Tinker applies to off-campus speech proved so daunting that several justices questioned whether it was even worth trying.

“As far as I can see, I can’t write a treatise on the First Amendment in this case,” a frustrated Justice Stephen Breyer admitted at one point.

“I strongly share Justice Breyer’s instincts,” Justice Brett Kavanaugh agreed, adding that the Court “can’t foresee all the things that could arise” if the Court attempts to write a single universal rule. He suggested resolving the case by simply saying that the “First Amendment does not categorically prohibit public schools from disciplining students for speech that occurs off-campus,” and then sending the case back down to the lower courts with maybe a few more vague instructions.

Two possible off-ramps from this case

Several of the justices spent the oral argument looking for off-ramps that would allow them to decide this case without having to get into many of the larger questions about bullying or harassment or student threats.

One possible off-ramp would be to hold that, even if Tinker does apply to off-campus speech, Levy’s Snapchat post was so unlikely to disrupt school operations that it was protected speech even under Tinker. Indeed, several justices appeared concerned that the school overreacted by suspending her from the JV team.

“Why isn’t this any different,” Sotomayor asked at one point, from a coach taking “personal offense” to a student’s remarks?

Kavanaugh, who has a side gig coaching high school girls basketball, described the decision to suspend Levy as “a bit of an overreaction by the coach.” Levy, Kavanaugh noted, “blew off steam like millions of other kids have when they are disappointed about being cut from the high school team.”

Barrett suggested that maybe the whole matter should have been dealt with through “soft discipline,” such as pulling Levy aside, explaining why her Snapchat post was unacceptable, and leaving it at that.

An alternative approach would be to give schools fairly broad leeway to regulate speech by student-athletes or other people engaged in extracurricular activity — so long as the rules are adequately conveyed to students in advance and the students don’t face sanctions beyond their ability to participate in extracurricular programs.

“Why doesn’t it make a difference that the speech here was ... in the context of an extracurricular activity, and that the standards there may be different from — higher than — what may be required of all students in the school environment?” Justice Neil Gorsuch asked Levy’s lawyer David Cole at one point.

In any event, the B.L. argument was a confusing muddle — just like the mess of lower court cases that have dealt with similar questions about when Tinker should apply off-campus. And anyone who was hoping that the Court would articulate one grand rule that could apply to every future case is likely to be disappointed.

That’s not a bad thing. As should be clear by now, these cases are hard, and they do not offer easy one-size-fits-all solutions.

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