The U.S. Supreme Court returned to the treacherous arena of student speech for the first time in nearly 15 years upon hearing oral arguments in Mahanoy Area School District v. B.L. on April 28. Based on comments by the justices, a narrow decision seems likely.
Mahanoy involves a public high school student in Pennsylvania who took to Snapchat to voice frustration at not being named to the varsity cheerleading team. She made her post off-campus, on a Saturday, and with no school resources. The school’s coaches suspended her from the junior varsity cheerleading squad, claiming that the post violated team rules. The student sued.
A federal district court found that the school district’s disciplinary actions violated the student’s First Amendment rights by punishing her for speech that caused no actual or foreseeable disruption to the school environment. The Third Circuit affirmed, holding “that the ‘online’ nature of that off-campus speech makes no constitutional difference.” In January, the Supreme Court granted the school district’s petition for review.
California Student Free Speech Record Recovery
Last year, we had the privilege of representing a student in a similar case involving similar speech—specifically, a James Bond parody video posted to YouTube that our client and a group of his friends created off-campus, during non-school hours, and with no school resources. Our client, Nathaniel Yu, was advised by a classmate that some individuals may find the parody “offensive.”
Yu, the then-junior class president at San Ramon Valley High School in Danville, Calif., directed the student who posted the parody to remove it from the social media site. The parody had about 30 views at the time of removal.
School officials punished Yu for that off-campus speech by stripping him of his student government post and disqualifying him from serving as the school’s elected associated student body president during his senior year. Last year, our team obtained the largest known recovery in a student free speech case in U.S. history.
No previous Supreme Court decision is a perfect fit for the speech at issue. Our team therefore relied heavily on the district court’s holding in Mahanoy when we opposed the district defendants’ motion to dismiss. U.S. District Judge Maxine M. Chesney denied the motion, rejecting the argument that the parody constituted school-sponsored speech.
The Third Circuit went a step further in Mahanoy, holding that speech “outside school-owned, -operated, or –supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur,” cannot be regulated as student speech.
Off-Campus Free Speech Rights in the Digital Age
During oral arguments in Mahanoy, the justices wrestled with that primary threshold issue: whether public school officials can regulate a student’s private social media post, made off-campus, after school hours, and with no school resources. Framed another way, do the practical realities of internet speech warrant new authority for school officials to regulate speech made well beyond the schoolhouse gate?
In Mahanoy, the Supreme Court has the opportunity to clarify the scope of off-campus free speech rights for students in the digital age. Neither students nor educators benefit from being left in the lurch. A new standard tailored to the realities of speech in the modern era is therefore needed to ensure that public school officials and students can intelligently assess the types of speech subject to school regulation.
During oral arguments, however, Justice Stephen Breyer stated he was “frightened to death of writing a standard.” That comment and others suggest that the court is acutely aware of the implications of its forthcoming decision.
It therefore seems doubtful the court will author a blanket rule immunizing all off-campus internet speech. But the court’s decision in Mahanoy may shed light on how it will apply First Amendment principles to online speech generally—a matter of intense public and judicial debate in recent years. Will the court endeavor to establish a new standard for online speech? Or will it continue ad hoc adaptions of existing precedent?
Just weeks earlier, in Biden v. Knight First Amendment Inst. at Columbia Univ., Justice Clarence Thomas stated that Twitter’s ability to moderate speech on its platform raises “interesting and important questions” regarding the First Amendment. To that point, First Amendment jurisprudence has long involved a spatial aspect.
Public parks, for example, are considered “public forums” where freedom of speech is at its zenith. But a purely geographic framework has become somewhat unwieldy where online platforms have blurred or outright removed traditional geographic boundaries.
Mahanoy, and cases like it, provide concrete examples of this—administrators reaching beyond the physical campus to regulate online speech. Online discourse has become ubiquitous, and social media is one of the preferred channels of activism. Where the court draws the line in Mahanoy will have profound consequences for public school officials and students alike.
A ruling in favor of the district could eviscerate traditional principles that limit the reach of school officials, and students might be disciplined for objectionable expressive conduct that occurs anywhere, at any time.
Conversely, a sweeping decision in favor of students could significantly hamper educators’ ability to confront the modern reality that off-campus student speech on the internet may well reach the campus, often-times simultaneously.
The Mahanoy decision is expected sometime in June. Though the decision may not be sweeping, it will be closely studied for its implications on free speech and social media.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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James Carlos McFall is a partner and trial lawyer in the Dallas office of Jackson Walker LLP and focuses on First Amendment, sports, entertainment, and commercial litigation.
Eric Wong and Lauren Ceckowski are litigation associates at Jackson Walker LLP.
Last year, McFall and Wong obtained the largest known recovery in a student speech case in U.S. history in Yu v. San Ramon ISD.