Should schools be able to punish students for speech on social media? Supreme Court will decide

There is an adage that “hard cases make bad law” and I worry this will be true about a major First Amendment case now pending before the Supreme Court.

Mahanoy School District v. B.L., which was argued on April 28, involves whether a student can be punished for speech on social media. The court has not decided a student speech case in over a decade and this will be the first to address the ability of schools to impose discipline for speech out of school and over social media. The challenge for the court will be to craft an approach that protects student speech while also allowing schools to punish bullying and harassment over social media.

The case involves a sophomore, referred to in the lawsuit as B.L., at a public high school in Pennsylvania. B.L. was on the Mahanoy Area High School junior varsity cheerleading team as a freshman. She tried out for the varsity as a sophomore, but again was assigned to the junior varsity squad. She was especially upset because an incoming freshman made the varsity.

On a Saturday, from off campus, B.L. posted two messages on Snapchat. Her first message consisted of a photo in which she raised her middle fingers at the camera, with a caption that repeatedly used a profanity in referring to the cheerleading team and the school. B.L.’s second message, posted shortly after, consisted of complaining that she and another student were on junior varsity again, but did not contain any profanities.

The coaches determined that B.L.’s posts “could impact students in the school” and had violated team rules that B.L. had agreed to follow, including that cheerleaders “have respect for [their] school, coaches, teachers, [and] other cheerleaders” and avoid “foul language and inappropriate gestures.” The coaches removed B.L. from the cheer team for the school year but informed B.L. that she could try out again as a rising junior. No other disciplinary action was taken.

B.L. and her parents sued in federal district court, which ruled in her favor and reinstated her to the team. The United States Court of Appeals for the Third Circuit agreed stressing that schools cannot punish off-campus speech.

In Tinker v. Des Moines Independent Community School District, in 1969, the Supreme Court held that schools can punish speech if it causes a substantial disruption of school activities. That case involved students who were suspended from school for wearing black armbands to protest the Vietnam War.

The court said that “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The court said that speech is protected absent a showing that it would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”

In B.L.’s case, the federal court of appeals went further and said that schools cannot ever punish students for their speech that occurs out of school. The court explained that Tinker “does not apply to off-campus speech” and that schools cannot punish even “off-campus student speech threatening violence or harassing particular students or teachers.”

There is much to admire about the federal court of appeals decision from a free speech perspective. It is a clear rule: schools never can punish students for their speech over social media.\u0009But I also am concerned about the need for schools to be able to stop and punish harassment and bullying.

A few years ago, I represented women students at Mary Washington University, a public school in Virginia, who had been targeted with vicious messages, including threatening them with rape and murder. The school said that it could not do anything because it was anonymous speech over social media. The federal court of appeals ruled in my clients’ favor, stressing that a school cannot be deliberately indifferent to such sexual harassment.

The Supreme Court needs to provide broad protection for student speech but also make clear that schools can punish speech if it rises to the level of bullying and harassment. Rather than adopt a general rule in this case, the best result would be for the court to say that the B.L. could not be punished for her speech because it did not harm anyone. B.L.’s profane rant was sophomoric, but she was a sophomore and upset. The coach should have ignored it and been understanding of her frustration.

The court then should leave to the future crafting more general rules for when schools can punish student speech over social media.

This story was originally published May 15, 2021 at 5:00 AM.