Supreme Court Announces New Test for Discipline of Off-Campus, Online Speech

Today, the U.S. Supreme Court issued its first opinion addressing a public school’s ability to discipline a student for off-campus, online speech. The 8-1 majority opinion in Mahanoy Area School District v. B.L., authored by Justice Breyer, joins the Tinker line of cases defining free speech rights for students and the limits of school district authority. Justice Thomas was the sole dissenter.

The majority opinion provides what might be described as a “Tinker plus” standard for school regulation of student off-campus, online speech. As the concurrence authored by Justice Alito and joined by Justice Gorsuch recognizes, the contours of the “plus” are not entirely clear. Based on our initial review and until lower courts provide more clarification, schools should consider whether off-campus online speech is protected speech. If it is, the school should consider whether three new “features” outlined by the court limit regulating the speech. Although the word “nexus” does not appear anywhere in the decision, many of the features are similar to those courts have applied when using a nexus test. If regulation is appropriate despite the unique features for off-campus online speech, the school should then apply the Tinker “substantial disruption” and “invasion of rights of others” standards to determine if consequences can be imposed.

Background

As we previously reported on our Title IX Insights blog:

Mahanoy involves a profanity-laden Snapchat tirade by a Pennsylvania high school cheerleader. Upon learning that she did not make varsity cheerleading, the student, B.L., posted a picture of herself on the Snapchat app with the text “f— school f— softball f— cheer f— everything.” It was a Saturday, and she was off-campus and not at a supervised school event. B.L.’s school suspended her from the junior varsity cheer team. It cited the impact that her conduct could have on the cheer coaches’ ability to maintain respect and order on the team and the confidence and trust of B.L. by other cheerleaders on the team. 

The highest federal appellate court for Pennsylvania, the Third Circuit Court of Appeals, decided that the school had impermissibly disciplined B.L. for her speech. Significantly, it held that the seminal case addressing First Amendment rights of students in school—Tinker v. Des Moines Independent Community School District—does not apply to off-campus student speech. Of course, schools have been applying the Tinker’s “substantial and material disruption” and “invasion of rights of others” standards for decades. Understandably, the Third Circuit’s decision sent shockwaves through the educational community. The court did leave the door open for schools to discipline speech of students participating in extracurricular activities through a waiver. But it found that B.L.’s speech did not violate the terms of any athletic code she signed. 

Off-Campus, Online Speech is Not Off Limits

The Supreme Court disagreed with the Third Circuit, holding that the special characteristics that justify limiting student speech in Tinker do not always disappear when that speech takes place off-campus. The Court provided examples of speech that could be sufficient to invite school consequences:

[S]everal types of off-campus behavior . . . may call for school regulation. These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.

But the Court was not willing to call that list absolute. “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.”

Instead, the Court held that Tinker applies to off-campus speech when taken together with three “features” of off-campus speech. Those features, per the Court, often distinguish schools’ efforts to regulate such speech from their efforts to regulate on-campus speech and “diminish the strength of the unique educational characteristics that might call for special First Amendment leeway.” The features are:

1. When students are off campus, a school will rarely stand in the role of parents (in loco parentis) like they do when students are in school. The Alito concurrence explains this point with more clarity, stating that the only implied authority that parents can be said to have relinquished to schools for off-campus speech is when the school “must be able to exercise [the authority] in order to carry out their state-mandated educational mission.” As noted previously, the discussion of this authority in the majority and concurring opinion refer to factors that are often used under the “nexus” test used by many lower courts in addressing off-campus, online speech. These include factors such as to whom the speech was targeted and sent.
2. Because regulations of off-campus speech are 24/7, courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that speech at all. When it comes to political or religious speech occurring outside of a school’s program or activity, schools will have a heavy burden to justify intervention. The concurrence by Justice Alito goes so far to say that “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” is “almost always” beyond the regulatory authority of a public school “no matter how significant the disruption it may cause.” Per Alito, the school can address the disruption, but not impose consequences or limitations on the speaker.
3. The school itself has an interest in protecting unpopular student speech, especially when it occurs off campus, because of the important role schools play in protecting the “marketplace of ideas” that is the foundation of our democracy. Although not clearly stated, it seems that this interest will need to be outweighed by the interests that justify limiting the speech.

The Court explained how these factors come into play in the analysis as follows:

Taken together, 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. We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference. This case can, however, provide one example.

Application to B.L.’s Snap

Using the new “Tinker plus” standard, the Court held that B.L.’s speech lacked the features that would place it outside the First Amendment’s ordinary protection. It used the following analysis to do so, providing more practical color to the standard:

1. B.L.’s speech was speech protected by the First Amendment. Her speech was not fighting words or obscenity that would fall outside the protection of the First Amendment. Instead, even if it might have seemed trivial to some, it was “the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”
2. B.L.’s speech, although risking transmission to the school itself, nonetheless was uttered off campus and outside of school time, via a personal device, to a limited audience of her private circle of Snapchat friends, and did not identify the school or target any member of the school community with vulgar or abusive language. This appears to be the court’s effort to determine whether the school had sufficient implied authority from parents to regulate student speech in the context, but the majority decision does not say as much. As noted previously, courts using a “nexus” requirement have long considered these types of factors in their First Amendment analysis for off-campus, online speech.
3. The school’s interest in prohibiting students from using vulgar language to criticize a school team or its coaches, is not strong enough to justify regulation. The court considered this issue by considering the school’s interest in regulating the speech and whether there was a “substantial disruption” under the Tinker
   1. The school’s interest in teaching good manners was not sufficient to overcome B.L.’s interest in free expression. The Court found that the strength of the school’s anti-vulgarity interest was weakened considerably by the fact that B. L. spoke outside the school on her own time. B. L. spoke under circumstances where the school did not stand in loco parentis and her parents did not delegate their authority to school officials. The vulgarity in B. L.’s posts encompassed a message, an expression of B. L.’s irritation with, and criticism of, the school and cheerleading communities. Further, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom.
   2. There is not sufficient evidence of a “substantial disruption” in a school-sponsored extracurricular activity as required by Tinker’s “exacting standard.” The Court noted that, at most, 5-10 minutes discussions about the Snap took place in one class on a couple of days and some members of the cheer team were upset by the Snap. One of the coaches went so far as to say that she could not think of any reason that the Snap would disrupt class or school activities other than kids kept asking about it.
   3. There was no evidence to suggest any decline in team morale sufficient to cause a “substantial disruption” under The Court noted that the mere fact that there was negativity put out there that could impact students in the school is not enough.

So What is this “Tinker Plus” Test?

The majority opinion is far from clear on what the contours of the new test it created are. The concurring opinion from Justice Alito provides some persuasive arguments as to how we might think of the test, at least until lower courts begin to interpret the decision and provide more guidance. Based on our initial reading, it appears that the Court’s opinion supports the following analysis for off-campus, online student speech cases:

1. First, ask whether the speech is protected speech. True threats, fighting words, and obscenity, for example, are outside the First Amendment’s ordinary protection and so can be disciplined without First Amendment concerns.
2. If speech is protected, ask whether it would be reasonably understood that parents who enrolled their children in a public school delegated the authority to regulate the speech in question to the school. It seems that we will rely heavily on the “nexus” test factors for this to determine if there is a sufficient connection to the school. Sending a message to a large audience or publicly posting it might be enough to pull it under the school’s authority as might targeting a member of the school community with vulgar or abusive language.
3. If there is sufficient authority, ask whether there is a substantial disruption or invasion of the rights of others under the Tinker

Based on the Court’s decision, schools should consider updates to policies, procedures, and handbooks to reflect the opinion. Contact the authors of this post or any other Franczek attorney for access to such updates.