Photo Credit: Students protest for the right to free speech outside the Supreme Court in Washington, DC, 19 March 2007 (photograph), in Can a school punish a student for online speech off campus?, News Decoder (Oct. 27, 2020), https://news-decoder.com/can-a-school-punish-a-student-for-online-speech-off-campus/.
Authored by: Nadia M. McDonald
In an age dominated by social media, the question of whether public schools have the right to discipline students for off campus online speech has become increasingly significant. This issue was brought to the forefront in the landmark Supreme Court case Mahanoy Area School District v. B.L., which addressed the tension between the First Amendment’s protection of free speech and schools’ authority to regulate student behavior.[1] While the Court ruled that schools have limited authority to regulate off campus speech,[2] many questions remain unanswered.
The First Amendment and Freedom of Speech in Schools
The First Amendment guarantees individuals the right to freedom of speech, a right that extends to students in public schools.[3] However, the Supreme Court has long recognized that student speech is not without limits, particularly when it comes to speech that disrupts the learning environment or violates school rules.[4] In Tinker v. Des Moines Independent Community School District, the Court ruled that students could express their opinions, including through symbolic speech, if it did not “materially and substantially disrupt the work and discipline of the school.”[5] While Tinker set the foundation for regulating student speech within the school, it didn’t address the question of off campus speech. Over the years, lower courts have grappled with how to apply Tinker to social media posts made by students outside of school grounds. In Mahanoy, the Court was tasked with determining whether the same principles apply to social media posts made by students off campus.[6]
Mahanoy Area School District v. B.L.
In 2017, Brandi Levy, a high school student at Mahanoy Area High School in Pennsylvania, posted a Snapchat story expressing frustration about not making the school’s varsity cheerleading team.[7] The post, made off campus at a local convenience store and outside of school hours, included profanity and directed harsh criticism at the school and its cheerleading program.[8] The following day, Levy was suspended from the junior varsity cheerleading team for the upcoming year, for what the school described as “disruptive” behavior which violated the team’s code of conduct.[9] Levy, however, challenged the suspension, claiming it violated her First Amendment right to free speech.[10] The case eventually made its way to the Supreme Court, where the Justices had to decide whether schools had the authority to punish students for speech made off campus that might not directly disrupt school activities.[11]
In an 8-1 decision, the Supreme Court ruled in favor of Brandi Levy, holding that public schools could not discipline students for off campus speech unless it caused a substantial disruption to the school environment.[12] Justice Stephen Breyer, writing for the majority, emphasized that the First Amendment protects a student’s right to express themselves outside of school, even if their speech is vulgar or critical of school activities.[13] The Court acknowledged that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” a principle established in Tinker.[14] However, the Court made it clear that this decision did not give students complete freedom to say anything without consequences.[15] Schools still have the authority to regulate speech that occurs on school property or at school events, as well as speech that disrupts the educational process or infringes on the rights of others.[16] In Levy’s case, her Snapchat post, though inappropriate, did not cause a substantial disruption to the school’s operations, and therefore, the school’s disciplinary action did violate her First Amendment rights.[17]
The Impact of Social Media on Student Speech
The rise of social media has fundamentally changed how students express themselves and how their speech can be regulated. Platforms like Snapchat and Instagram give students an unprecedented ability to communicate with their peers and the public at large, often outside the boundaries of traditional school environments. This shift has blurred the lines between what constitutes “on campus” and “off campus” speech.[18]
Social media posts, unlike traditional forms of speech, can be far reaching and can easily be shared, liked, or commented on by a large audience at all times and in any place.[19] The digital age has made it much more difficult to draw a clear line between student speech that is private and that which affects the school environment.[20] Even when speech occurs off campus, it can have ripple effects on the school, its students, and its staff. For example, a social media post that goes viral could create a climate of division within the school, leading to potential disruptions. The Court in Mahanoy recognized these complexities but reaffirmed the importance of student expression.[21] In doing so, the Justices underscored that schools should not overreach in attempting to control students’ online behavior unless there is a direct and significant impact on the school environment.[22]
Potential Ambiguities and Unanswered Questions
While the Mahanoy decision provided clarity in some respects, it also left several key issues unresolved. One of the primary questions left open by the ruling is how schools should handle off campus speech that is less overtly disruptive but still has the potential to cause harm or disruption. The Court’s opinion did not offer a comprehensive test for determining when off campus speech crosses the line from protected expression to disruptive behavior. For example, what happens if a student’s social media post includes threats, bullying, or harassment? While these types of posts are clearly disruptive, they may still fall outside the scope of school grounds.[23]
The Court also did not address the issue of cyberbullying, which is a significant concern for schools nationwide.[24] Cyberbullying can often take place off campus and affect students’ mental and emotional well-being within the school, and while Mahanoy provides a baseline for protecting students’ free speech rights, it leaves open the question of how schools can address harmful behavior without overstepping their authority.
Implications for Schools, Students, and the Legal Landscape
The Mahanoy decision has significant implications for both students and schools. For students, the ruling affirms that they have the right to express themselves online, even if their speech is critical of the school or its activities.[25] This ensures that students have the freedom to express their opinions and frustrations without fear of retaliation, a fundamental aspect of the First Amendment.[26] For schools, the decision sets limits on their authority to regulate online speech.[27] Schools can no longer impose discipline on students simply because their off campus speech is offensive or critical of the institution.[28] However, they still retain the ability to intervene if the speech creates a substantial disruption to the school’s operations or violates the rights of others.[29]
[1] Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180 (2021).
[2] Id. at 186-87.
[3] U.S. Const. amend. I.
[4] Mahanoy, 594 U.S. at 187.
[5] 393 U.S. 503, 513 (1969).
[6] Mahanoy, 594 U.S at 186-87.
[7] Id. at 180.
[8] Id.
[9] Id. at 185.
[10] Id.
[11] Id. at 180.
[12] Mahanoy, 594 U.S. at 186 (citing Brown v. Entm’t Merchs. Assn., 564 U.S. 786, 794 (2011) (“But we have also made clear that courts must apply the First Amendment ‘in light of the special characteristics of the school environment.’”).
[13] Id. at 190-91.
[14] Id. at 187 (citing Tinker, 393 U.S. at 506).
[15] Id. at 186 (citing Tinker, 393 U.S. at 513) (“[C]onduct by [a] student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is . . . not immunized by the constitutional guarantee of freedom of speech.”).
[16] Id. at 188.
[17] Id. at 189.
[18] Mahanoy, 594 U.S. at 190-91.
[19] Monica Miecznikowski, Left for the Future, Solved in the Past: A Test for School’s Ability to Regulate Student Speech Off-Campus, Vanderbilt JETLaw Blog (February 2, 2024), https://www.vanderbilt.edu/jetlaw/2024/02/02/left-for-the-future-solved-in-the-past-a-test-for-schools-ability-to-regulate-student-speech-off-campus/ (“Courts have found that schools generally have the right to regulate student’s speech while they are on campus. However, with the advancement of technology, speech is no longer tethered to a time or place. A person can type an opinion and near instantly that view can be heard across the country.”).
[20] Mahanoy, 594 U.S. at 189-90.
[21] Id. at 190.
[22] Id. at 180 (“Circumstances that may implicate a school’s regulatory interests include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.”).
[23] Id. at 209 (“Bullying and severe harassment are serious (and age-old) problems, but these concepts are not easy to define with the precision required for a regulation of speech.”).
[24] Monica Anderson, A Majority of Teens Have Experienced Some Form of Cyberbullying, Pew Research Center, https://www.pewresearch.org/internet/2018/09/27/a-majority-of-teens-have-experienced-some-form-of-cyberbullying/ (Sep. 27, 2018).
[25] Mahanoy, 594 U.S. at 192 (“Moreover, the vulgarity in B. L.’s posts encompassed a message, an expression of B. L.’s irritation with, and criticism of, the school and cheerleading communities. Further, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom. Together, these facts convince us that the school’s interest in teaching good manners is not sufficient, in this case, to overcome B. L.’s interest in free expression.”)
[26] Id. at 191.
[27] Id. at 190.
[28] Id. at 180.
[29] Id. at 181.
American Journal of Trial Advocacy 