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A case about a high school student acting like a high school student raises difficult First Amendment questions.

The facts of Mahanoy Area School District v. B.L., a case that the Supreme Court will hear next Wednesday, involve the kind of conflict between an authority-flouting student and overzealous school officials that probably occur in thousands of high schools every year. But look beyond the familiar outlines of the dispute and you have a case that could potentially reshape the free speech rights of public school students.

In May 2017, high school sophomore Brandi Levy, who is identified only as “B.L.” in court filings even though her full name has been reported widely, tried out for her school’s varsity cheerleading team. She did not make the team, and was instead assigned to the junior varsity squad. Shortly thereafter, Levy posted an angry message on Snapchat showing her and a friend holding up their middle fingers. The caption read “fuck school fuck softball fuck cheer fuck everything.”

Unfortunately for Levy, her school’s cheerleading coaches reacted to this Snapchat post by suspending her from cheerleading for a year. Unfortunately for the school, Levy’s father decided to bring a lawsuit with the help of the ACLU, claiming that the school violated her First Amendment rights. The case has now stretched on for so long that Levy is no longer in high school.

It’s hardly the most earth-shattering conflict to reach the justices. But the implications of this case could be profound.

In its landmark decision 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 recognized that students’ free speech rights are diminished in 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.”

Teachers and school administrators have to have the authority to maintain classroom order, to punish bullying, and to otherwise maintain an orderly learning environment for schools to function. And so a public school student who, for example, screams the words “fuck cheer” in the middle of a crowded school hallway may be disciplined, even though that same student would have a First Amendment right to say these words outside of the school setting.

Yet, while Tinker’s holding that the First Amendment is diminished, but not eliminated, when a student enters a school setting has endured for more than half a century, courts have never drawn a clear line between what constitutes a school setting and what does not.

In the past, this line did not matter nearly as much. Students have no doubt complained about not making the varsity team — sometimes in vulgar teams — for as long as there have been varsity teams. But, before the age of social media, these complaints would typically be voiced in private conversations among friends. And only the most draconian school officials would claim that a student uttering the words “fuck cheer” to a classmate while the two were hanging out off campus might “materially and substantially disrupt the work and discipline of the school.”

In a world with social media, however, Levy’s Snapchat posts could potentially be read by hundreds of other students — with some of them reading it on their phones while attending school. The barrier between on-campus and off-campus speech has become much more porous, and that has very significant implications for how Tinker should apply.

If you are unconvinced that a cheerleader’s vulgarity is a good reason to apply Tinker’s diminished protections to students who write things on social media while they are not in class, consider the facts of Wisniewski v. Board of Education, a 2007 case in which the United States Court of Appeals for the Second Circuit affirmed the legality of a school suspension. In that case, a student posted an image online of a pistol firing a bullet into a man’s head. Under the picture, the student posted the words “Kill Mr. VanderMolen” — his English teacher.

Should the school’s ability to discipline that student really turn on whether the student posted this image during school hours or on his home computer?

Though the facts of the B.L. case involve a far more trivial dispute than the one in Wisniewski, B.L. gives the justices an opportunity to decide what rule should apply in all cases involving student speech that occurs away from school. It’s a difficult question that lower courts have struggled to answer.

The courts have struggled to determine when Tinker applies to off-campus speech

It’s well established that Tinker can apply beyond the literal gates of a schoolhouse. In Morse v. Frederick (2007), for example, the Court upheld a school district’s suspension of a student, who held up a banner reading “BONG HiTS 4 JESUS,” during an off-campus but school-sponsored event.

“Schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use,” Chief Justice John Roberts wrote for his Court in Morse.

Several lower courts have held that Tinker applies to some student speech that occurs both off-campus and away from any school-sponsored activity — although there is no consensus among the lower courts regarding when students who engage in off-campus speech have diminished First Amendment rights.

In Wisniewski, for example, the Second Circuit indicated that Tinker’s reduced First Amendment protections apply to students who engage in off-campus speech if there is a “reasonably foreseeable risk that the [speech] would come to the attention of school authorities.”

Other circuits follow a different legal rule. As the Fourth Circuit described this alternative rule, Tinker applies to off-campus speech if there is a sufficient “nexus” between the student’s speech and the school’s “pedagogical interests.”

The Fifth Circuit, for its part, has declined to “adopt a specific rule” to off-campus speech, but it did conclude that Tinker applies to a student who posted a video online which contained “threatening language against two high school teachers/coaches.”

And then there’s the Third Circuit, which heard the B.L. case. That court held that “Tinker does not apply to off-campus speech — that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur” — although the Third Circuit also left open the possibility that a different rule might apply to “off-campus student speech threatening violence or harassing particular students or teachers.”

The question of when Tinker’s diminished First Amendment protections should apply to off-campus speech, in other words, is a giant doctrinal mess. Courts have struggled to come up with a single legal rule that should apply to these cases, and for good reason. It’s not easy to articulate a rule that applies fairly to cursing cheerleaders and to students who threaten to murder teachers.

Both the school district’s brief and the ACLU’s brief on behalf of Levy point to a parade of disturbing consequences that could follow if the Supreme Court errs too far in protecting, or not protecting, student free speech. The former brief opens with a list of compelling examples where off-campus speech would almost certainly disrupt a school’s ability to function — and do serious harm to students and teachers in the process.

A swollen-eyed student breaks down during English class; her teacher discovers that her classmates are calling her worthless on social media and urging her to kill herself. The science teacher goes on leave after his students create a fake email account that impersonates him and spews invective about other students, prompting outrage from parents. Five students cheat on a test because another student, who took the test the day before, posted her answers online. Students upset with the gymnastics coach’s tryout regimen crank-call her all night; she resigns, leaving the team without a coach. Older students follow a disabled student home and describe sexual acts in such graphic terms that he cannot face returning to school.

The ACLU’s brief, meanwhile, features a list of cases where Tinker permitted schools to censor students for expressing common political views — such as opposition to abortion or a desire for more permissive immigration policy. In one particularly stark case, a federal appeals court permitted a school to discipline football players because they organized a petition lobbying the school administration to replace a coach they believed to be abusive.

Tinker applies a context-specific rule to student speech. The case involved high school students who wore black armbands to school to protest the Vietnam War, and the Supreme Court held that these students had a First Amendment right to do so because “the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.”

It’s possible to imagine a different school where some students did the exact same thing — wearing black armbands to protest a war — but this act of protest so angered those students’ classmates that arguments and even fights break out in the classrooms and hallways. In this hypothetical school, Tinker would allow school officials to order students to remove the armbands.

If Tinker is extended to large swaths of off-campus speech, then a student who, for example, posts a picture of themselves wearing a “Black Lives Matter” T-shirt on Instagram, could be censored by the school if the student’s MAGA classmates object to the shirt and try to pick a fight with the student.

How can the courts protect student speech without giving the green light to cyberbullying?

The Biden administration, for its part, filed a brief in B.L. urging the Court to recognize that different rules should apply to different kinds of speech.

Under the Justice Department’s proposed rule, certain forms of off-campus speech — including “speech that (1) threatens the school community, (2) intentionally targets specific individuals or groups in the school community, or (3) intentionally targets specific school functions or programs regarding matters essential to or inherent in the functions or programs themselves” — would be subject to Tinker. Other off-campus speech might enjoy full First Amendment protection.

There’s plenty of room to debate whether these three categories are too narrow or too broad. The ACLU, for its part, objects to DOJ’s third category because it fears that “a school that maintained … that ‘cohesion’ and ‘morale’ were essential to a school program could prohibit all criticism of that program, even the reporting of a teacher, coach, or administrator for abuse, discrimination, harassment, or simply for being ineffectual.”

But the Biden administration is correct that a student who bullies a classmate online is different in kind from a student who wears a shirt with a political message such as “Black Lives Matter” or “Abortion is murder.” And they are probably correct that the Court needs to explicitly distinguish different kinds of off-campus speech.

A rule that applies Tinker’s reduced First Amendment protections to all off-campus speech gives far too much power to school districts. But a rule that never applies Tinker to off-campus speech could render schools powerless against genuinely abusive behavior, so long as the students who engage in that behavior do so off-campus.

To give just one example of why the Court needs to craft different rules for off-campus speech than it applies to on-campus speech, consider the Court’s decision in Bethel School District v. Fraser (1986).

In Fraser, a high school student delivered a speech laden with sexual innuendo at a school assembly. (“I know a man who is firm. He’s firm in his pants.”) In holding that this speech was not protected by the First Amendment, the Court held that schools “may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech.”

It’s a perfectly sensible rule. Schools are professional settings, and high schools should be allowed to expect professional language from students for the same reason that Vox Media can require me not to use the kind of language in our newsroom that I might use during a night of drinking with friends.

But it would be ridiculous to apply Fraser to off-campus speech. Do we really want public schools to be able to punish a student who uses the word “fuck” in a private, off-campus conversation with a friend? Or who engages in sexual innuendo while they are consensually flirting with a date?

A sensible Court, in other words, is going to need to construct a new set of legal rules that recognizes that off-campus speech is distinct from on-campus speech, but also that off-campus speech can sometimes impact the school community in ways that schools need to be equipped to handle. It will not be an easy task, even if the Supreme Court is inclined to be sensible.

Author: Ian Millhiser

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