On June 23, 2021, the United States Supreme Court handed down an 8-1 decision in Mahanoy Area Sch. Dist. v. B.L., in favor of a public high school cheerleader, B.L., who was punished for her off-campus speech. B.L. posted a photo to her Snapchat “story” while off-campus, outside of school hours, to her private group of friends, on her personal device depicting herself and a friend with middle fingers raised and text including profanity regarding “school,” “cheer,” and “softball”. Once the Snapchat photo reached school administration, the public high school determined that the student’s use of profanity in connection with school activities violated team and school rules, and school officials suspended B.L. from the cheerleading squad for one year.
In a case of first impression regarding wholly off-campus speech, the High Court held that some off-campus student speech may be regulated, but it declined to establish a bright-line rule regarding when, where, and how such off-campus speech may be regulated. Rather, in declaring B.L.’s case to be one example of when a public school cannot lawfully regulate a student’s off-campus speech, the Court held that B.L.’s off-campus speech was entitled to First Amendment protection based on the following factors:
- Whether the student speech features any characteristics that would place it outside of First Amendment protection such as fighting words or obscenity. The Court held that B.L.’s vulgar language did not constitute such features.
- Where, when, and how the speech occurred. Notably, B.L.’s speech occurred outside of school hours, at a location outside of the school, on a personal device intended to reach an audience of only her private Snapchat friends. B.L. did not identify the school or target any specific member of the school community in her speech.
- Whether the school had a significant interest in regulating the student’s speech at the time and place the speech was made. The Court held that, although the school may have had an interest in teaching good manners and maintaining school and team morale, there was insufficient evidence in the record to demonstrate that (1) B.L.’s parents had delegated responsibility to control her behavior at an off-campus location outside of school hours, or (2) the school had made any general effort to prevent students from using vulgar language outside of the classroom.
- Whether the student’s speech created a “substantial disruption” to school activities. The Court held that the school failed to establish that B.L.’s speech had created the sort of “substantial disruption” to school activities contemplated in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1960), such that it could regulate the off-campus speech.
As Justice Alito aptly stated in his concurrence to the majority opinion:
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.
For advice regarding any student issues including but not limited to discipline for student speech and expression on or off-campus, please contact James Young or Kendra Tovey at the Law Offices of Young, Minney & Corr, LLP at (916) 646-1400.
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