In a Win for Scholar Speech, Supreme Court docket Guidelines in Favor of the ‘Snapchat Cheerleader’

In a Win for Scholar Speech, Supreme Court docket Guidelines in Favor of the ‘Snapchat Cheerleader’

For months, it has been heralded because the “most essential pupil free speech case in a minimum of 50 years.” As we speak, with the U.S. Supreme Court docket’s ruling on Mahanoy Space College District v. B.L., the case can lastly stay as much as the hype.

“The Court docket made clear that colleges’ energy to restrict campus speech is just not limitless,” says Jeff Rosen, president and CEO of the Nationwide Structure Middle, a nonprofit. “Faculties can’t act like mother and father when disciplining off-campus speech. College students do have essential First Modification pursuits.”

Jen Reidel, a highschool civics trainer in Washington state, had been following the case carefully since final fall. She teaches a legislation and society class to college students in Bellingham, and along with her college nonetheless doing distant studying, she felt she needed to discover an particularly fascinating case to seize college students’ consideration via the display. Simply any Supreme Court docket case wouldn’t be sufficient to achieve via these “black tiles” on Zoom and interact her college students.

However the Mahanoy v. B.L. case offered precisely the circumstances and teenage drama she wanted. Fellow excessive schooler? Examine. Social media? Yep. Adolescent angst? Oh, yeah, replete with profanities and a minimum of one upside-down smiley-face emoji. The case was relatable. It was undecided. And, little doubt, it might have occurred to considered one of her college students.

Mahanoy facilities round a highschool freshman, referred to as “B.L.” within the courtroom filings because of her standing as a minor, who attended Mahanoy Space College District in Pennsylvania. On the finish of her freshman yr, B.L. tried out for her college’s varsity cheerleading squad and didn’t make the group. She was as a substitute supplied a spot on the junior varsity squad. That weekend, whereas at a neighborhood comfort retailer referred to as the Cocoa Hut with a good friend, B.L. posted two images to her Snapchat “story,” a function that shows pictures for twenty-four hours to everybody on a consumer’s buddies checklist.

The primary photograph included the caption, “F*** college f*** softball f*** cheer f*** every part,” with the expletives spelled out. When the content material of the picture, preserved in a photograph on one other pupil’s telephone, received again to the cheerleading coaches, they consulted with the varsity principal and suspended B.L. from the JV cheerleading group for one yr.

In response, B.L. and her mother and father filed a lawsuit in opposition to the varsity district. The District Court docket and Third Circuit Court docket of Appeals each sided with B.L., arguing that her Snapchats had not brought on “substantial disruption” to studying, and that because the occasions had unfolded off campus, the Tinker v. Des Moines (1969) commonplace for pupil free speech didn’t apply.

In Tinker, a landmark pupil speech case that’s taught extensively in colleges at this time, college students have been suspended from their Des Moines, Iowa, public college for exhibiting up carrying black armbands in protest of the Vietnam Battle. College leaders argued that the armbands would disrupt studying. The Supreme Court docket famously dominated in favor of the scholars, explaining that college students don’t “shed their constitutional rights to freedom of speech or expression on the schoolhouse gate.”

When Tinker was determined, there have been no on-line platforms, and the thought of ‘shedding rights on the schoolhouse gate’ was fairly black-and-white. It’s not anymore.”

In August 2020, Mahanoy Area School District, a small, rural public school district serving just over 1,000 students, asked the U.S. Supreme Court to weigh in on how public school officials can regulate student speech off-campus, and the Court agreed to take on the case.

As briefs were filed and a date set for arguments, Reidel and her students dove in. They read up on the case using student-friendly resources from an organization called Street Law, and they studied past student speech cases to inform their understanding, including Tinker and Morse v. Frederick (better known as the “Bong Hits 4 Jesus” case from 2002). They even had Mary Beth Tinker, plaintiff in the 1969 case, join a class over Zoom in the spring to share her first-hand experience of going before the U.S. Supreme Court.

(Tinker herself is said to be pleased with the ruling in Mahanoy, according to Mike Hiestand, senior legal counsel for the Student Press Law Center, who spoke with her shortly after the decision.)

Using everything they’d read about Mahanoy, and about preceding student speech cases, Reidel’s high schoolers had to issue a ruling on Mahanoy v. B.L. as their final exam, summarizing their legal reasoning to support the decision and citing the precedent case they felt best applied.

“If she had Snapchatted this while in her cheer uniform, a lot of kids were like, ‘Oh, I think she could be held accountable,’” Reidel says. “But given the fact she was just out with her friend, on a Saturday, for almost all the kids, that really resonated with them. She was on her own time. A lot of kids were really fearful that if the ruling had gone the other way … where does it end?”

Almost every single one of her students ruled in favor of B.L., citing Tinker.

The judges on the highest court in the land seemed to agree. In an 8-1 ruling on Wednesday, the Justices sided with B.L., saying that her school district had violated her First Amendment rights by suspending her from the team.

In the decision, Justice Stephen Breyer writes that although there are circumstances in which off-campus speech could be regulated by school officials—including severe bullying or harassment, threats to students or staff and security breaches—there are features that distinguish those exceptions from the rest.

First, schools act in place of a student’s parents (in loco parentis) when the child is in their care. There is rarely a need for that when a student is speaking off-campus, Breyer writes.

Second, if students’ on-campus speech is regulated, and their off-campus speech is also curtailed, then “all the speech a student utters during the full 24-hour day” is limited, thereby fully prohibiting students from ever expressing certain views.

Third, “the school itself has an interest in protecting a student’s unpopular expression,” Breyer writes, “especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy.”

Hiestand, of the Student Press Law Center, a nonprofit that protects student press freedom rights, said that phrase—”public schools are the nurseries of democracy”—“jumped right out at me.”

Reidel, in explaining why she was thrilled and relieved by the Court’s decision, expounded on that same idea.

“If we don’t teach kids about engagement and about free speech rights and let that play out, even in a messy way, inside the schools, I don’t see how we would have engagement and free speech rights outside of school,” she says.

Rosen at the National Constitution Center calls it “inspiring” that eight of the nine justices say that “students—our future citizens—need freedom to express unpopular, sometimes offensive opinions.”

Unanswered Questions

The Supreme Court’s holding is narrow and leaves many questions unanswered—questions that, perhaps in a not-too-distant future, it will be asked to consider again. For now, the Justices have declined to provide a “list” of exceptions, where off-campus speech can in fact be regulated by schools. (Does speech during remote learning count? Speech on the way to or from school? Speech over school email?)

“Particularly given the advent of computer-based learning, we hesitate to determine precisely which of many school-related off-campus activities belong on such a list,” Breyer writes. “Neither do we now know how such a list might vary, depending upon a student’s age, the nature of the school’s off-campus activity, or the impact upon the school itself. Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech …”

Narrow as it is, the ruling does send a “strong signal,” Rosen says, that schools’ power to regulate off-campus speech is limited. That signal will be ever more critical as students continue to learn online, at home and in settings outside the walls of a traditional school building.

“As students do more independent work and communication becomes more digital, we’re probably going to see some gray areas and blurred lines where the Court is perhaps going to need to create some rigidity,” Reidel says.

She adds: “When Tinker was decided, there were no online platforms, and the idea of ‘shedding rights at the schoolhouse gate’ was pretty black-and-white. It’s not anymore.”

When the Court’s decision was announced Wednesday morning, Reidel emailed her principal and vice principal right away. She is also planning to send an email to her students, even though it’s summer, because many of them had checked in about the case repeatedly, wondering if she had any updates or knew the outcome.

“Even if three of them open it up, it’s worth it,” she says. “It helps tie together what we were learning about. And honestly, I’m excited about the case. I think it was the right decision. Students feel so much of their world is decided for them, without their say, often to benefit the adults and not the students. I am thrilled this decision errs on the side of preserving student free speech rights.”

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