Regulating student speech in the Snapchat era

Later this year, in Mahanoy Area School District v. B.L., the U.S. Supreme Court will decide a First Amendment case involving a high school student who was kicked off her public school’s cheerleading team for being less than cheerful on her private cell phone. The Court’s answer to the question — can a school punish a student for posting off-campus, after-hours social media content it finds objectionable? — may become its most significant school free speech ruling in at least 14 years and its first addressing student speech using digital technology platforms.

In 2017, while shopping with her friends one weekend, the student, “B.L.,” decided to express her displeasure at not making the varsity cheerleading squad (not to mention her desired position on a private softball team). She took a photo of herself and her friend with their middle fingers raised and posted it on Snapchat, the popular social media app. “Fuck school fuck softball fuck cheer fuck everything,” B.L. said. “Love how me and [another student] get told we need a year of [junior varsity] before we make varsity but that’s [sic] doesn’t matter to anyone else?”

Students who saw the snap alerted the cheerleading coaches, which resulted in B.L.’s suspension from the cheerleading team. The school stated that B.L. violated team and school rules requiring cheerleaders to “have respect” for their school, coaches, and other cheerleaders; avoid “foul language and inappropriate gestures”; refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches” online, and conduct themselves in such a way that the “image” of the district would “not be tarnished in any manner.”

B.L.’s parents eventually sued, alleging a violation of their daughter’s constitutional rights, including her right of free speech under the First Amendment. After a federal district court ruled in favor of B.L., the school district appealed to the Third Circuit Court of Appeals.

A bright-line ruling by the Third Circuit

In June 2020, the Third Circuit ruled that the district had violated B.L.’s First Amendment right of free speech. Writing for the three-judge panel, Judge Cheryl Ann Krause pointed out the traditional, legally significant distinction between on-campus student speech — which public schools have greater power to regulate — and speech outside of the school setting, in which students’ free speech rights are equal to that of any other citizen. “The digital revolution, however,” she explained, “has complicated that distinction. With new forms of communication have come new frontiers of regulation, where educators assert the power to regulate online student speech made off school grounds, after school hours, and without school resources. This appeal takes us to one such frontier.”

Krause then observed that the well-trodden path of Supreme Court cases addressing free speech in the K-12 school setting didn’t squarely apply to off-campus situations. In Tinker v. Des Moines Independent Community School District (1969) — in which the Supreme Court upheld the right of students to wear black armbands at school to protest the Vietnam War — the Court famously stated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But the Court also stated that “in light of the special characteristics of the school environment,” school officials may regulate speech that “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”

Krause explained that Tinker applied to situations within the school context — at school or during school hours or school-sponsored activities — and so did the relevant subsequent Supreme Court free speech cases — Bethel School District No. 403 v. Fraser (1986), Hazelwood School District v. Kuhlmeier (1988), and Morse v. Frederick (2007) — all of which further limited Tinker’s broad free speech protection in certain situations. Then, after recognizing the blurriness between “on campus” and “off campus” in borderless cyberspace, the Third Circuit clarified that “a student’s online speech is not rendered ‘on campus’ simply because it involves the school, mentions teachers or administrators, is shared with or accessible to students, or reaches the school environment.”

The court concluded that B.L.’s speech was not regulable by the school, and that Tinker did not apply at all to “speech that is outside school-owned, -operated, or -supervised channels.” (In a concurring opinion, Judge Thomas Ambro stated that it was not necessary to go so far as to untether all off-campus situations from Tinker; the court could have simply applied Tinker and decided that the school was wrong to sanction B.L.’s off-campus snaps because they did not materially and substantially interfere with school operations.) So, here’s the upshot, according to the Third Circuit: With limited exceptions, public schools cannot abridge students’ right to say what they want when they are away from campus and during their free time, so long as they are not using school-affiliated social platforms to communicate.

What’s at stake for students — and for schools

The Supreme Court will soon decide whether the Third Circuit did the right thing, or whether off-campus speech should be nudged back within the ambit of Tinker. The Supreme Court will surely note that, in contrast to the Third Circuit, other courts have not issued a bright-line rule between on-campus and off-campus speech, choosing instead to analyze whether it was “foreseeable” that the off-campus speech would come to the attention of school authorities, or whether there was a “nexus” between off-campus speech and the pedagogical interests of the school.

The Third Circuit’s approach has some appeal, in that it conforms to what most people would assume to be true: Except for harassing or threatening behavior, the government shouldn’t have much power to scrutinize or punish people for expressing personal thoughts during their leisure time, at home, or on personal apps. As Judge Krause points out, students need clarity as to “when they are subject to schools’ authority and when not,” and school administrators need a clear rule in order to “better understand the limits of their authority.” The Third Circuit’s approach places a great deal of silly, surly, grouchy, resentful, and potty-mouthed — i.e., teenaged — speech out of bounds.

The Third Circuit’s approach also appears to recognize the danger of excessively monitoring online or digital communications because of its ubiquity in teenagers’ lives. It is, after all, their preferred mode of speech (see Steinmetz, 2018). This is even more true during 2020 and 2021, when millions of students have been forced to learn at home; studies indicate increased social media use by teens during the COVID-19 pandemic (Children’s Hospital of Chicago, 2020).

On the other hand, applying Tinker to off-campus situations has some appeal as well. In his concurring opinion, Ambro groused: “We promulgate a new constitutional rule based on facts that do not require us to entertain hard questions.” The hard questions include what to do about “off-campus student speech that threatens violence or harasses others” — a scenario the court explicitly declined to address. Would a series of harassing or threatening tweets by a student against members of the school community still be off limits to school officials, so long as they were executed across the street from the school, one minute after the school day ended?

Even for civil libertarians, Tinker could be useful in such situations. After all, the case represents the high watermark for students’ free speech rights in U.S. jurisprudence. Applied faithfully, Tinker could protect students from being punished for “merely” offensive or disrespectful off-campus speech that does not cause a substantial disruption to school operations, while also providing a framework for courts to analyze off-campus speech far more troubling than a couple of F-bomb-ladled snaps by a student on a Sunday shopping spree.

But Tinker does not always protect students who engage in off-campus speech that some might view worthy of protection. For example, in 2015, in Bell v. Itawamba County School Board, the Fifth Circuit Court of Appeals upheld the discipline of a student who, while away from school and without using school resources, posted a rap recording on Facebook and YouTube containing profane and threatening lyrics directed at two high school coaches. The student composed and recorded the rap song as a form of protest after female friends informed him that these coaches were sexually harassing them. Applying Tinker, the court upheld the student’s discipline because his rap recording could “reasonably have been forecast” to cause a substantial disruption at school.

Even if the Supreme Court affirms the Third Circuit’s holding in B.L.’s case, it may not make school administrators’ lives any easier. The Court could, like the Third Circuit, fail to provide any guidance related to off-campus speech involving harassment or threats of violence. And for speech involving other forms of student misconduct, most schools will still have an obligation, under their school policies or related laws or regulations, to pore over students’ emails, tweets, texts, snaps, and posts to determine which ones they may consider and whether they amount to sanctionable misbehavior. In these cases, figuring out whether students’ online or digital communications took place on or off campus may often prove difficult for all but the most tech-savvy school administrators.

And advances in technology will continually test our understanding of speech and place. Soon, for example, students may have the ability to project 3D images from their phones. (Stein, 2021). (Could we soon hear of a case involving a student sending a holographic hornet after a startled principal from across the street? Is that off-campus speech?) As communicative technology continues to evolve, courts may come to realize that the legal lines and boundaries they attempt to draw today may shift or even vanish tomorrow, in a snap.

References

Children’s Hospital of Chicago. (2020, September 1). Parenting teens in the age of social media. Lurie Children’s Blog.

Stein, S. (2021, January 13). Holograms for your phone: How second screens could share SD AR in 2021. CNET.

Steinmetz, K. (2018, September 10). Teens are over face-to-face communication, study says. Time.