SPLC’s 5 minute guide to B.L. v. Mahanoy

• The official Supreme Court docket includes full copies of most of the documents submitted in the case, including all legal briefs.
• Oral arguments to the Court took place Wednesday, April 28, 2021
  • Audio and transcripts of the argument are available here.
• The Court issued its decision on June 23, 2021.

Just over 50 years ago, in its landmark Tinker v. Des Moines Independent Community School District case,  the U.S. Supreme Court made clear that student speech is protected by the First Amendment. Since then, there has been ongoing tension between the right of students in public schools to speak and the authority of school officials to regulate or punish such speech to maintain an effective learning environment. Of particular concern — particularly since the arrival of social media and other online speech — has been the debate over how much, if any, authority school officials should have over a student’s speech when they are outside of school.  

This case is about where to draw the line.

In May 2017, Brandi Levy (the B.L. in the case), a rising sophomore at Mahanoy Area High School in Pennsylvania at the time, failed to make the varsity cheerleading team and was frustrated. So — on a Saturday afternoon using her own phone and her private Snapchat account while at an off-campus convenience store — she posted a photo 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.’” 

Her Snapchat — as Snapchats do — was gone by Sunday, but one of her cheerleading teammates saved her post and shared it with the cheerleading coach, who booted Brandi off the cheerleading team for a year. By almost any measure, Levy’s Snapchat did not significantly disrupt school.

Levy argues that school officials improperly crossed the line that should exist between a student’s off-campus and on-campus life. Levy’s dad argues that the school crossed the line and interfered with a parent’s right to discipline (or not discipline) his daughter for things she does outside of school. School officials argue that a geographic line between off-campus and on-campus speech doesn’t really exist anymore and they must be allowed wider authority to regulate student speech, regardless of where a student pushes “post” on their phone. And lots of other groups (including the SPLC) are weighing in with their thoughts about where and how to draw the line. 

The Court ruled in favor of Levy and said that the school had violated her First Amendment rights, but declined to set forth a broad rule defining when schools can restrict off-campus speech. Justice Stephen Breyer, writing for the majority of the Court, said that Levy’s Snapchat post did not include anything that would place it outside the First Amendment’s ordinary protection. Breyer went on to emphasize that Levy had created the Snap outside of school hours and off of school property, and said there was no evidence that her post created the kind of disruption that would legally justify her suspension.

The Court also outlined three features of off-campus speech that will make it less likely that schools have an interest in regulating it:

1. A student’s off-campus speech will generally be the responsibility of the student’s parents
2. If schools regulate off-campus speech, students will have their speech regulated practically 24/7
3. Schools have an interest in protecting a student’s unpopular expression, especially off campus

Breyer was also careful to point out that speech that severely bullied or harassed particular people or threats aimed at teachers or other students is speech that a school may have an interest in regulating, even if it takes place off campus.

If you are — or will be — a student at a public elementary or secondary school, this case will affect you. If you are — or will be — a student at a public college or university this case will also affect you. 

The outcome of this case will determine how much you need to be concerned about school officials watching over and punishing you for things you say anytime and anywhere, including posts to Instagram, Snapchat and other social media accounts that you might publish using your own phone at midnight from the privacy of your bedroom. 

If the Court had adopted the school district’s argument, individuals who attend American public schools would not have the same First Amendment protection as everyone else. Speech that would be protected if they weren’t students would be subject to punishment by school officials who weakly claim — as the cheerleading coach in this case did — that their speech disrupted the school.

Giving public school officials — government actors — an explicit green light to monitor and punish students for their speech 24/7 would have fundamentally changed the relationship between students and the government. It is a dangerous civics lesson.

Courts are confused. When Tinker was handed down in 1969, the Internet didn’t exist and courts have struggled to apply the older rule to the newer speech tools that young people in particular rely upon to communicate. Currently, appellate courts in different parts of the country have come to different conclusions when it comes to allowing school officials to punish or otherwise regulate students for their off-campus speech. A majority of those courts have applied some version of the Tinker standard to allow oversight of off-campus student speech where they can show the speech had a disruptive effect at school. However, many — including the Student Press Law Center — have argued that Tinker should be limited to in-school speech. They contend that once they are outside of school, students should have the same legal rights and be subject to the same restrictions as everyone else.

The 3rd Circuit Court of Appeals, which covers the states of Pennsylvania, New Jersey and Delaware, agreed with the SPLC argument. Their ruling last summer went further than most, drawing a line between student speech that occurs on campus and speech that occurs off campus.  With some possible exceptions for bullying or harassing speech that affects other students, school officials, the appeals court said, should generally have no authority to punish students for their off-campus speech. 

The school district asked the Supreme Court to review the case, which it agreed to do.

In addition to briefs submitted by the two parties involved, there were 34 friend-of-the-Court (amicus) briefs submitted to Court, where different groups provided information to the Court they thought would be helpful and important to the Justices in deciding the case. For example, the Student Press Law Center, joined by seven other free speech and journalism organizations, filed a brief that focused on the impact the Court’s decision could have on legitimate off-campus student journalism and student whistleblowers. 

According to statistics published in the National Law Journal, that’s about twice the average number of amicus briefs filed in a typical Supreme Court case. Seven of the briefs were in support of the school district, 24 were in support of the student and three were submitted in support of neither party.