Liberties Reporting on First Amendment freedoms

Speech regulations follow students home

Free Speech | Supreme Court considers reach of school authority
by Steve West
Posted 2/01/21, 04:32 pm

Not long ago, a parent-teacher conference might have been enough to deal with a frustrated student’s offensive comment. Now, due to the amplifying megaphone of social media, it’s the subject of a Supreme Court appeal.

Mahanoy Area School District v. B.L. began in 2017 after a high school passed over a rising female sophomore for a varsity cheerleading team in favor of a freshman. The upset sophomore—identified as B.L.—over a weekend posted two offensive posts on Snapchat, a popular social media app that automatically deletes content within 24 hours. One post featured a photo of the student and friends making an offensive gesture, accompanied by expletive-laced text. The second said, “Love how me and [another student] get told we need a year of jv before we make varsity but that[ ] doesn’t matter to anyone else?”

The offending posts made their way to team coaches when a fellow cheerleader shared a screenshot. From there, they percolated through the student body, ultimately resulting in B.L.’s removal from the team for the remainder of the year.

After school district officials turned them away, her parents filed a federal lawsuit. A trial court ruled in favor of B.L., finding her off-campus messages weren’t disruptive enough to merit the discipline. The 3rd U.S. Circuit Court of Appeals went further, departing from other circuit courts to rule that the First Amendment always protects off-campus student speech.

The case turns on application of a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District. The justices prohibited public school officials from disciplining students for on-campus speech unless it “would materially and substantially interfere with the requirements of appropriate discipline and in the operation of the school.”

The decision might have ended most legal issues surrounding student speech. But social media apps have significantly increased the reach of a single student, and educators have lined up in favor of the district. The district’s attorneys insist administrators must have the power to regulate speech that will disrupt the teaching environment—whether on or off campus. “In seconds, from anywhere, students can share any thought with the entire school community—a force multiplier for both the best and worst student impulses,” the district argues in its opening brief in the Supreme Court.

But B.L.’s ACLU-affiliated attorneys dismissed the significance of the student’s posts. “B.L.’s speech did not mention, much less target, the school or any individuals associated with it, nor was it directed at the school with the purpose of causing disruption,” they wrote in their opposition brief. “B.L.’s Snap was nothing more than an off-hand, ephemeral expression of frustration on a personal social media platform designed to facilitate such transitory communications.”

Will Creeley, an attorney with the free speech advocacy group Foundation for Individual Right in Education, is concerned about the broader ramifications if the court allows schools to discipline students for alleged disruptive speech: “What we are concerned about is the creation of a surveillance state for students where any comment they have that is not to the liking of the authorities—no matter if it’s on their own time, on their own computer, or addressed solely to their friends—can become grounds for punishment.”

So-called “hate-speech” laws have already reached into off-the-job or off-campus conduct, aimed at college students, realtors, attorneys, or other professionals.

“What you have there is a recipe for the tyranny of the majority,” Creeley said. “And that’s exactly what the First Amendment is designed to combat.”


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Steve West

Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.

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  • RC
    Posted: Wed, 02/03/2021 09:52 am

    Winning the court case is not going to repair the damage the student did, to others and herself. Years ago, as e-mail was getting popular, I had a wise mentor say, “Do not write anything in an e-mail that you would be embarrassed or upset about if it showed up on the front page of the newspaper.” Wise advice for e-mail then and social media today.

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