For months, it has been heralded as the “most important student free speech case in at least 50 years.” Today, with the U.S. Supreme Court’s ruling on Mahanoy Area School District v. B.L., the case can finally live up to the hype.
“The Court made clear that schools’ power to limit campus speech is not unlimited,” says Jeff Rosen, president and CEO of the National Constitution Center, a nonprofit. “Schools can’t act like parents when disciplining off-campus speech. Students do have important First Amendment interests.”
Jen Reidel, a high school civics teacher in Washington state, had been following the case closely since last fall. She teaches a law and society class to students in Bellingham, and with her school still doing remote learning, she felt she had to find an especially interesting case to capture students’ attention through the screen. Just any Supreme Court case wouldn’t be enough to reach through those “black tiles” on Zoom and engage her students.
But the Mahanoy v. B.L. case presented exactly the circumstances and teenage drama she needed. Fellow high schooler? Check. Social media? Yep. Adolescent angst? Oh, yeah, replete with profanities and at least one upside-down smiley-face emoji. The case was relatable. It was undecided. And, no doubt, it could have happened to one of her students.
Mahanoy centers around a high school freshman, known as “B.L.” in the court filings due to her status as a minor, who attended Mahanoy Area School District in Pennsylvania. At the end of her freshman year, B.L. tried out for her school’s varsity cheerleading squad and did not make the team. She was instead offered a spot on the junior varsity squad. That weekend, while at a local convenience store called the Cocoa Hut with a friend, B.L. posted two photos to her Snapchat “story,” a feature that displays images for 24 hours to everyone on a user’s friends list.
The first photo included the caption, “F*** school f*** softball f*** cheer f*** everything,” with the expletives spelled out. When the content of the image, preserved in a photo on another student’s phone, got back to the cheerleading coaches, they consulted with the school principal and suspended B.L. from the JV cheerleading team for one year.
In response, B.L. and her parents filed a lawsuit against the school district. The District Court and Third Circuit Court of Appeals both sided with B.L., arguing that her Snapchats had not caused “substantial disruption” to learning, and that since the events had unfolded off campus, the Tinker v. Des Moines (1969) standard for student free speech did not apply.
In Tinker, a landmark student speech case that is taught widely in schools today, students were suspended from their Des Moines, Iowa, public school for showing up wearing black armbands in protest of the Vietnam War. School leaders argued that the armbands would disrupt learning. The Supreme Court famously ruled in favor of the students, explaining that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
In August 2020, Mahanoy Area School District, a small, rural public school district serving just over 1,000 students, asked the U.S. Supreme Court to weigh in on how public school officials can regulate student speech off-campus, and the Court agreed to take on the case.
As briefs were filed and a date set for arguments, Reidel and her students dove in. They read up on the case using student-friendly resources from an organization called Street Law, and they studied past student speech cases to inform their understanding, including Tinker and Morse v. Frederick (better known as the “Bong Hits 4 Jesus” case from 2002). They even had Mary Beth Tinker, plaintiff in the 1969 case, join a class over Zoom in the spring to share her first-hand experience of going before the U.S. Supreme Court.
(Tinker herself is said to be pleased with the ruling in Mahanoy, according to Mike Hiestand, senior legal counsel for the Student Press Law Center, who spoke with her shortly after the decision.)
Using everything they’d read about Mahanoy, and about preceding student speech cases, Reidel’s high schoolers had to issue a ruling on Mahanoy v. B.L. as their final exam, summarizing their legal reasoning to support the decision and citing the precedent case they felt best applied.
“If she had Snapchatted this while in her cheer uniform, a lot of kids were like, ‘Oh, I think she could be held accountable,’” Reidel says. “But given the fact she was just out with her friend, on a Saturday, for almost all the kids, that really resonated with them. She was on her own time. A lot of kids were really fearful that if the ruling had gone the other way … where does it end?”
Almost every single one of her students ruled in favor of B.L., citing Tinker.
The judges on the highest court in the land seemed to agree. In an 8-1 ruling on Wednesday, the Justices sided with B.L., saying that her school district had violated her First Amendment rights by suspending her from the team.
In the decision, Justice Stephen Breyer writes that although there are circumstances in which off-campus speech could be regulated by school officials—including severe bullying or harassment, threats to students or staff and security breaches—there are features that distinguish those exceptions from the rest.
First, schools act in place of a student’s parents (in loco parentis) when the child is in their care. There is rarely a need for that when a student is speaking off-campus, Breyer writes.
Second, if students’ on-campus speech is regulated, and their off-campus speech is also curtailed, then “all the speech a student utters during the full 24-hour day” is limited, thereby fully prohibiting students from ever expressing certain views.
Third, “the school itself has an interest in protecting a student’s unpopular expression,” Breyer writes, “especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy.”
Hiestand, of the Student Press Law Center, a nonprofit that protects student press freedom rights, said that phrase—”public schools are the nurseries of democracy”—“jumped right out at me.”
Reidel, in explaining why she was thrilled and relieved by the Court’s decision, expounded on that same idea.
“If we don’t teach kids about engagement and about free speech rights and let that play out, even in a messy way, inside the schools, I don’t see how we would have engagement and free speech rights outside of school,” she says.
Rosen at the National Constitution Center calls it “inspiring” that eight of the nine justices say that “students—our future citizens—need freedom to express unpopular, sometimes offensive opinions.”
The Supreme Court’s holding is narrow and leaves many questions unanswered—questions that, perhaps in a not-too-distant future, it will be asked to consider again. For now, the Justices have declined to provide a “list” of exceptions, where off-campus speech can in fact be regulated by schools. (Does speech during remote learning count? Speech on the way to or from school? Speech over school email?)
“Particularly given the advent of computer-based learning, we hesitate to determine precisely which of many school-related off-campus activities belong on such a list,” Breyer writes. “Neither do we now know how such a list might vary, depending upon a student’s age, the nature of the school’s off-campus activity, or the impact upon the school itself. Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech …”
Narrow as it is, the ruling does send a “strong signal,” Rosen says, that schools’ power to regulate off-campus speech is limited. That signal will be ever more critical as students continue to learn online, at home and in settings outside the walls of a traditional school building.
“As students do more independent work and communication becomes more digital, we’re probably going to see some gray areas and blurred lines where the Court is perhaps going to need to create some rigidity,” Reidel says.
She adds: “When Tinker was decided, there were no online platforms, and the idea of ‘shedding rights at the schoolhouse gate’ was pretty black-and-white. It’s not anymore.”
When the Court’s decision was announced Wednesday morning, Reidel emailed her principal and vice principal right away. She is also planning to send an email to her students, even though it’s summer, because many of them had checked in about the case repeatedly, wondering if she had any updates or knew the outcome.
“Even if three of them open it up, it’s worth it,” she says. “It helps tie together what we were learning about. And honestly, I’m excited about the case. I think it was the right decision. Students feel so much of their world is decided for them, without their say, often to benefit the adults and not the students. I am thrilled this decision errs on the side of preserving student free speech rights.”