Turns out, applying the First Amendment to public schools is hard.
Jun 23, 2021, 4:20 PM UTC
Justice Stephen Breyer speaks at the French Embassy in 2016, in Washington, DC. Brendan Smialowski/AFP via Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
The Supreme Court ruled on Wednesday that a public high school violated the First Amendment when it punished a student — the cursing cheerleader you might have heard about — for a vulgar message she posted online while she was off campus. It’s the Court’s first major student free speech case since 2007.
That is, however, more or less the only thing the Supreme Court established in Mahanoy Area School District v. B.L. Justice Stephen Breyer’s opinion for the Court is a tribute to modesty, acknowledging the many hard questions presented by this case and explicitly refusing to resolve most of them. As it turns out, deciding how the First Amendment should apply to high school students is hard, and the Court appears to believe that it needs more time to think about how to do so in future cases.
The facts of B.L. are fairly straightforward. In 2017, Brandi Levy was a high school sophomore (she graduated from high school while her case was working its way through the courts) who tried out for her school’s varsity cheerleading squad. She did not make the team and was assigned to the junior varsity team. Shortly thereafter, she posted an angry message on Snapchat that included a picture of her and a friend holding up their middle fingers, along with the caption “fuck school fuck softball fuck cheer fuck everything.”
Importantly, she posted this message to Snapchat outside of school hours, and while she was off campus. Nevertheless, the school suspended her from the JV cheerleading squad for a year because of her Snapchat post. The question before the Court was whether her post was protected by the First Amendment — and therefore was not something she could be punished for saying.
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The general rule governing on-campus speech by public school students was laid out in Tinker v. Des Moines Independent Community School District (1969). Under Tinker, students retain some free speech rights while they are at school, but those rights are diminished. A school may sanction speech that “would materially and substantially disrupt the work and discipline of the school.”
But it’s not at all clear how the First Amendment and Tinker apply to off-campus speech by students, and lower federal courts have split at least four different ways on this question.
The question is especially complicated, moreover, because of the rise of the internet and social media. Students have no doubt lashed out in rage when they didn’t make a varsity team for as long as there have been varsity teams, but in the past those angry outbursts would not be heard by anyone who wasn’t nearby.
Now, if a student lashes out at their cheerleading coach — or, for that matter, if they threaten a teacher or a fellow student — they can do so online in a format that may be preserved forever, or at least for many hours. As I wrote earlier about this case, “in a world with social media . 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.”
B.L. offered the justices an opportunity to announce a single unifying rule that would govern all free speech cases involving off-campus speech by public school students. But the Court dodged that opportunity.
The reason is that it is quite difficult to come up with such a unifying rule. Though Breyer’s opinion holds that Levy’s school went too far when it punished her, he also acknowledges that there may be examples of off-campus speech that should be punished by public schools — including cases of “serious or severe bullying or harassment targeting particular individuals” or “threats aimed at teachers or other students.”
Yet, while the Court does not try to answer the question of when schools could intervene in every case, B.L. is a decidedly pro-free-speech opinion. At the very least, the Court holds that “courts must be more skeptical of a school’s efforts to regulate off-campus speech,” lest every single utterance by a public school student be subject to the whims of teachers and school administrators.
As Breyer makes clear, Levy has an unusually strong First Amendment claim, and the school’s attempt to discipline her stands on particularly shaky ground. Indeed, Breyer writes that “we can 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” against Levy. Sometimes, students say things that are rude but that don’t really have much impact on the school environment.
Thus, even if the Court had held that Tinker’s diminished version of the First Amendment applies to all student speech, whether on campus or off, it appears likely that Levy would have prevailed.
But the Court does not say that Tinker applies universally to all off-campus speech. To the contrary, B.L. warns lower courts to be very cautious about allowing schools to regulate such speech. And Breyer’s opinion gives three interlocking reasons why.
The first is that school officials are generally viewed as acting in loco parentis while school is in session, meaning that they stand “in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them.” But when a student is off campus, that student’s actions “will normally fall within the zone of parental, rather than school-related, responsibility.”
The Court also fears that a too-powerful school could try to prevent students from expressing unpopular political or similar views. “When it comes to political or religious speech that occurs outside school or a school program or activity,” Breyer writes, “the school will have a heavy burden to justify intervention.”
Finally, Breyer embraces a vision of education where schools foster debate, rather than controlling it. “The school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus,” he writes, because “America’s public schools are the nurseries of democracy.” In a “representative democracy,” students must learn to engage in a “free exchange” of “informed public opinion.”
Having laid out these principles, however, the Court stops short of attempting to lay down a rule governing all off-campus speech. Breyer still acknowledges that bullying, threats, or other truly egregious speech might subject a student to school discipline even if it takes place off campus. And he leaves “for future cases” the task of determining “where, when, and how . the speaker’s off-campus location will make the critical difference.”
The B.L. decision, in other words, is a tribute to judicial humility. It acknowledges that the Court does not have all the answers, and that it is sometimes better to defer a difficult question than to resolve it in a ham-handed way.
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