On Wednesday, the U.S. Supreme Court ruled in favor of Brandi Levy who sued her high school district after being punished for posting a profanity-filled rant on Snapchat upon not making the varsity cheerleading team. The New York Times reported:
The Supreme Court ruled on Wednesday that a Pennsylvania school district had violated the First Amendment by punishing a student for a vulgar social media message sent while she was not on school grounds.
The decision, on a vote of 8 to 1, did not establish a categorical ban on regulating student speech outside of school, citing the need of school systems to be able to deal with issues like bullying and threats.
Instead, it set out factors that courts should assess in weighing the right of administrators to punish speech in nonschool settings, with one important component being whether parents are better suited to handle the situation.
The Court's opinion can be read here.
Here is the opinion delivered by Justice Breyer in Mahanoy Area School District v. B.L.— SCOTUSblog (@SCOTUSblog) June 23, 2021
Justice Thomas dissented. https://t.co/pXIISBNmFZ
On Justice Breyer's majority opinion, Ed Whelan wrote:
In his majority opinion for eight justices (including Alito), Justice Breyer rejects the Third Circuit’s categorical rule that a public school could not punish a student for off-campus speech. He then identifies three features of off-campus speech that “diminish the strength of the unique educational characteristics that might call for special First Amendment leeway” for the schools. First, a school “will rarely stand in loco parentis” (in the place of parents) regarding off-campus speech. Second, a school’s general regulation of a student’s off-campus speech would mean that the school is able to regulate all of the student’s speech, and that is especially troubling with respect to “political or religious speech.” Third, schools should protect unpopular expression, especially when off campus. Beyond that, Breyer throws up his hands[.]
Whelan argues that Justice Alito's concurrence gives more guidance than the majority opinion:
When it comes to off-campus speech, Alito argues, “enrollment [in a public school] cannot be treated as a complete transfer of parental authority over a student’s speech.” On the contrary, “In our society, parents, not the State, have the primary authority and duty to raise, educate, and form the character of their children,” and they “do not implicitly relinquish all that authority when they send their children to a public school.”
Alito identifies “a category of [off-campus] speech that is almost always beyond the regulatory authority of a public school”: “This is student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations.” He observes that “[p]erhaps the most difficult category [of off-campus speech] involves criticism or hurtful remarks about other students.” On the one hand, “[b]ullying and severe harassment are serious (and age-old problems); on the other, “these concepts are not easy to define with the precision required for a regulation of speech.”
More generally: “If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.”
Justice Clarence Thomas wrote the dissenting opinion:
In dissent, Justice Thomas wrote that “the majority fails to consider whether schools often will have more authority, not less, to discipline students who transmit speech through social media.”
“Because off-campus speech made through social media can be received on campus (and can spread rapidly to countless people),” Justice Thomas wrote, “it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation.”
The Supreme Court is nearing the end of its 2020-2021 term and will likely release the rest of its opinions in the coming week. Follow the RNLA on Twitter for the latest updates.