This month the U.S. Supreme Court will hear arguments in Mahanoy Area School Dist. v. B.L., a student speech case that could fundamentally alter how future generations understand the idea of free speech in America.
Just over 50 years ago the Court handed down a decision in its landmark student speech case, Tinker v. Des Moines Independent Community School District. It’s described as a landmark case because at issue was a very simple, but fundamental question: Are students protected by the First Amendment when they are in school? The Court said “yes.” Neither “students or teachers,” the Court held, “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The case has been cited thousands of times to protect student speech from school censorship and punishment..
But Tinker wasn’t a slam-dunk win for students. While the decision is rightly celebrated as a free-speech victory for students, the Court also noted that the school environment was unique and that school officials needed to retain authority to ensure that student speech did not interfere with a school’s primary mission: to provide a solid education. The Tinker standard attempts to strike a balance and has generally worked pretty well in making sure students can say what they need to say and teachers can teach what they need to teach when they’re in school.
While Tinker presents a significant barrier to most of the administrative censorship that we see here at the SPLC, there is a price. When they are in school, students don’t have the same First Amendment rights as their fellow citizens who are off-campus. A public school principal has no authority over me, for example. I’m not a student and I can lawfully publish a column urging students to stage a class walkout to protest teacher pay cuts. But, under Tinker, a principal could probably censor the same sort of column in a high school student newspaper if he or she could show that students reading the column were, in fact, likely to actually walk out of class, an act that would “materially and substantially disrupt” normal school activities in violation of Tinker.
“Students,” the Tinker Court held, “are ‘persons’ under our Constitution.” But make no mistake, when they are in school they are persons with an asterisk.
On Wednesday, the Student Press Law Center, joined by several other free speech and student journalism groups, filed a friend-of-the-court brief in a case that asks the question: Do students ever get to remove that second-class citizen asterisk?
With Mahanoy, the Court has agreed to finally answer a question that has befuddled lower courts around the country for years: What authority, if any, do public school officials have over student speech that takes place completely off-campus? The question has become particularly complicated as social media and other online speech has blurred the traditional geographic boundaries that marked where an individual’s “student life” began and where it ended.
The facts are simple. Brandi Levy (the B.L. in the case who outed herself on CNN so I’m using her name here), a Pennsylvania public high school freshman at the time, failed to make the varsity cheerleading team and was frustrated. So — on a Saturday afternoon in late May 2017, using her own phone and her private Snapchat account while at an off-campus convenience store — she posted a pic extending her middle finger along with, as former SPLC Executive Director Frank LoMonte has said, “some version of what stressed-out students have been saying on the back of the school bus since the invention of buses: ‘Fuck school fuck softball fuck cheer fuck everything.’”
The post was sent to her circle of friends and, as Snapchats do with their limited lifespans, it was gone by Sunday. That would have been that — just like the millions of other messages shared by frustrated teens that weekend — except that one of her friends passed the post on to her cheerleading coach who banned Brandi from cheerleading for a year.
Unfortunately, once again — following its lead in the infamous “Bong Hits 4 Jesus” case where the speech at issue was a nonsensical banner advocating nothing — the Supreme Court decided to choose yet another shining example of student expression to decide the law that could impact all student speech — including serious student journalism and student activist speech — for generations to come. (And, yes, it was a choice.)
Our brief, one of several amicus briefs filed in the case, focused on reminding the Court how their decision will impact such speech, pointing to examples where student journalists and student whistleblowers have used off-campus speech to raise awareness about issues that school officials wanted to keep quiet. Those examples included student journalists in Nebraska and Utah, who were able to publish their censored stories off-campus, and students elsewhere who have effectively raised awareness about such issues as school COVID practices, unsanitary school bathrooms, disgusting school lunches and rats running through school hallways.
We also reminded the Court that, however the rule, they needed to do a much better job in this case than they did in their disastrous 1988 Hazelwood v. Kuhlmeier ruling of creating clear, understandable boundaries and rules for both students and administrators. Hazelwood — a hot mess of a case that tracks way too close to the Court’s prisoner speech case decided the year before — effectively gutted the First Amendment protection available to many public high school student journalists with its porous, fuzzy language and is dangerously continuing to creep onto American college campuses.
Finally, we warned the Court of the dangerous and troubling American civics lesson inherent in extending the government’s authority over students’ off-campus speech. As we told the Court, “Nothing in the Constitution or this Court’s precedents supports establishing second-class citizenship as a consequence of school enrollment.” Attaching that asterisk to our next generation of journalists and citizens 24/7 fundamentally alters the balance between between the government and those they govern. Make no mistake, this is a real-life First Amendment civics lesson more important than anything that will ever be conveyed in a classroom and it will have far-reaching consequences.
The world has changed and so has the way all of us communicate. That is especially true for young people who have embraced the new speech tools as their primary vehicle for sharing. Brandi Levi expressed sentiments and wrote words that have been used by frustrated teens in person and on phone calls for years without government officials monitoring and punishing their off-campus conversations. The question Brandi’ case poses for us as a supposed free society: Do we really want to start now?
Oral arguments in the case are scheduled for April 28 with a decision expected in June or July.
The SPLC brief was generously written pro bono by the Washington, D.C. law firm Covington and Burling, which has been a steadfast support of SPLC’s work for years. I’ll also point out that one of the lead attorneys for Brandi Levi is Sara Rose who was the SPLC’s first ever publication fellow back in the day!