By Gideon Porter, Esq.
In the age of social media and in an ever more connected world, the issue of student free speech outside the school is at the top of many parents’ minds. Parents want to shield their children from school discipline due to posts on Instagram and other social media apps but often are not exactly sure how to.
Historically, the debate over student free speech has focused on words and actions at school. In the foundational Supreme Court case Tinker v. Des Moines Independent Community School District, decided in 1969, the majority opinion famously declared students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
But when do students cross the line from protected speech to unprotected speech? And how is speech regulated differently in school vs. outside of school? In other words, when can schools restrict student speech? Tinker articulated a standard that has long served as the framework: student speech can be restricted only if it “would substantially interfere with the work or impinge upon the rights of other students.”
Tinker further articulated that schools could restrict speech if it “might reasonably [lead] authorities to forecast substantial disruption or material interference” or hinders “with the rights of other students to be secure and to be alone.”
Years later, in Hazelwood v. Kuhlmeier, the Supreme Court held that schools “need not tolerate student speech that is inconsistent with its basic educational mission.” Put another way, students are subject to school discipline when they interfere with the education of other children.
As a result, this area of first amendment law has examined whether student speech at school creates a substantial disruption and interferes with a school’s basic educational mission.
Before social media, instances where student speech outside of school created a substantial disruption were often easy to analyze. A student on a Saturday night leaving a message on the school’s answering machine announcing a threat to the school or another student? That speech would be deemed unprotected, and that student would be rightfully disciplined.
But the world has changed. Instagram, Snapchat, Facebook, and smart phones allow students, off campus and on campus, to narrowly tailor their messages and speech to a select audience.
Questions about student speech are now more complicated. Sentiments that may have previously been verbally expressed among friends are now posted online.
But what constitutes a substantial disruption on Instagram? What powers should schools possess regarding the digital lives of their students?
Consequently, courts have had to grapple with student speech in the age of the iPhone.
In 2021, the Supreme Court finally addressed this changed world in Mahanoy Area School District v. B.L. The facts of the case are simple: a high school student tried out for the varsity cheerleading team but only made junior varsity. That weekend the student, B.L., on Snapchat, posted a picture of herself and a friend raising a certain finger with a caption cursing out the school and the cheerleading program. She made another post as well expressing her disagreement with being left off the varsity teams. B.L.’s posts were visible to around 250 people, including fellow students and cheerleaders.
Some students screenshotted the posts and expressed concern to the cheerleading coach. The coach concluded B.L. violated both school and cheerleading team rules. She was suspended from the junior varsity team for the year.
She sued the school alleging, among other things, that her suspension from the junior varsity team violated her First Amendment rights.
Eventually the case made its way to the highest court in the land. To the delight of free speech advocates, the Court ruled in B.L.’s favor.
As it often does today, the Supreme Court did not articulate a bright line rule explaining how student off campus free speech rights differ from on campus free speech rights. Nor did the Court provide a bright line rule articulating a standard stating how student first amendment rights should be balanced with a school’s legitimate interest in preventing substantial disruptions.
Instead, the Mahanoy decision states there are three unique features of off-campus speech. Specifically the Court explained that (1.) schools rarely stand in loco parentis (in the place of a parent) when a student speaks outside the school setting; (2) regulating off campus speech, in combination with regulating on campus speech, means that student speech is regulated around the clock so there should be a general skepticism in regulating off campus speech and; (3) schools have an interest in protecting unpopular expression because public schools are “the nurseries of democracy.”
The Court held “these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.”
Regarding B.L.’s actions the Court stressed that B.L.’s speech was outside of the school day; it did not identify the school itself nor did it target any member of the school with crude or abusive language; and that she transmitted the speech via Snapchat to a selected audience.
The Court held that B.L.’s posts did not amount to a substantial disruption simply because some students were upset. Moreover, the Court held that because her speech was conducted off campus meant that her school at the time was not standing in loco parentis.
Due to the lack of bright line rules in Mahanoy it has been fascinating to see how lower courts interpret and apply the decision.
Two of the most scrutinized post Mahanoy decisions are Chen v. Albany Unified School District (a Ninth Circuit case) and CI.G v. Siegfried (a Tenth Circuit case). These decisions stand out because each uses Mahanoy to arrive at different outcomes: the former held that disciplining a student for off campus speech was not a violation of students’ first amendment rights and the later held that a student’s First Amendment rights were violated when he was disciplined for off campus speech.
In Chen v. Albany Unified School District, the Ninth Circuit relied on the Mahanoy decision to hold there was enough of a connection to the school and a student’s off campus speech that his speech could be regulated. The facts of the case were deeply disturbing: a student created a private Instagram account (separate from his public account) which was accessible to only thirteen students. The student posted racist pictures and captions directly involving other students in the school. It was undisputed that the student sought to keep his posts and account private. But while the student sought privacy, the Ninth Circuit reasoned that it should still be examined whether it was reasonably foreseeable that the Instagram posts would reach the broader school community and create a substantial disruption. Due to the easily accessible posts and the rapid nature in which such posts can spread (and in fact did so across the student body) the Ninth Circuit held that such disruption was foreseeable and that the off-campus speech should be regulated. Of note, is that the Ninth Circuit observed that if the District did not intervene it would have created a racially hostile environment at the school.
The Tenth Circuit decision in CI.G v. Siegfried relies on Mahanoy to arrive at a very different conclusion. The facts in this case, also deeply disturbing, involve a student who posted a picture on Snapchat (on his private story, viewable for 24 hours) of himself in military garb with the caption “Me and the boys bout to exterminate the Jews.” Later he posted on his private story that “I’m sorry for the picture it was meant [sic] to be a joke.” The student was expelled after a parent complained. He brought legal action and eventually the Tenth Circuit found in favor of the student. The opinion held that it was not reasonable to predict a substantial disruption from the post and that in fact there was not an actual disruption.
Clearly there is a lot to learn from these decisions. Here in the tristate area, it will be fascinating to see how one of our high courts rules on an off campus free speech case when implementing Mahanoy.
THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.