The Supreme Court heard an oral argument on Monday, April 26 in Mahanoy Area School District v. B.L., a case on whether public school officials can discipline students’ off-campus social media content. In the words of Justice Steven Breyer, Brandi Levy – who was a 14-year-old sophomore at the time of the incident in this case – used “unattractive swear-words off campus.” Ms. Levi didn’t make the varsity cheer squad and vented to her friends. Her coach found out and threw her off the JV squad for a year as punishment. The Justices wrestled with how the current social media environment applied to precedents made before the internet was born.
Ms. Levy sent her message while stopping at a convenience store, and that may be quite important to the ruling and the outcome in the case. She used Snapchat. Its messages, known as “snaps,” can be viewed on the app for only 24 hours, but another cheerleader took a screenshot of Levy’s snap and showed it to the cheerleading coach.
The current standard limits student speech that may be prohibited to speech that occurs while the student is under school supervision, at school-sanctioned activities, or occurs at the school. The school district argued Monday that geographic restrictions on their ability to discipline student speech make such discipline impossible. The ubiquity of social media and the virility of messages on it are too limiting according to the district, and an expansive view of state power to suppress disfavored thoughts.
In addition to the geographic issue, the other main question concerns what type of speech counts as disruptive. Much of that argument centers around speech that may mention or be about students or school personnel versus speech that “targets” people at the school. So a student might be able to say, for instance, “Principle Smith is an idiot!” However, they may be prohibited from sending out a message encouraging everyone else at the school to send a message to Principal Smith that everyone thinks they are an idiot.
Listening to the presentation of arguments and questions, just about every justice who asked questions seemed skeptical of the exercise of state power. Justices Amy Coney Barrett and Brett Kavanaugh were especially so. Barrett questioned the severity of the punishment delivered to Ms. Levy and thought it was awfully harsh for the expurgation of a few F-bombs. Justice Kavanaugh was especially interested in the student perspective. His history as a girls’ basketball coach is well known, and he spoke about how devastating it can be for a student who fails to gain a spot on a team.
#23 The G.O.A.T.
Kavanaugh said the punishment wasn’t tailored to the offense. He went on to say about Ms. Levy, “she’s competitive, she cares, and she blew off steam like millions of other kids have when they disappointed…” He talked about Michael Jordan’s experience with the failure of the same sort:
“By way of comparison, and to show how much it means to people; You know arguably the greatest basketball player of all times inducted into the Hall of Fame in 2009 and gives a speech, and what is it he talks about? He talks about getting cut as a sophomore from the varsity team. He wasn’t joking. He was critical thirty years later – it still bothered him.”
Justice Sonia Sotomayor joined in, too, asking, “where do we draw the line with respect to targeting the school?” She said most of the kids’ conversations surround their lives in school and the people there. She wondered how the nature of such speech “shows disrespect when it was posted to a page scheduled to disappear.”
A Fool’s Errand?
The Justices called the case to resolve the question presented:
“Whether Tinker v. Des Moines, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off-campus.”
Tinker is the seminal case deciding what speech restrictions against students are allowed by the First Amendment. The student in Tinker wore a black armband to protest against the Vietnam war. The Supreme Court held that the speech must be allowed because it wasn’t disruptive. Tinker’s holding said if the speech would “materially and substantially interfere” with the school’s operation, schools may prohibit it. Recent cases, including the famous “BONG HiTS 4 JESUS” case of Morse v. Frederick in 2007, have not addressed administrators’ attempts to punish speech published on social media.
The district court granted Ms. Levy’s motion for summary judgment, holding that her dismissal from the cheerleading team violated her First Amendment rights. The court noted that “whether Tinker applies to speech uttered beyond the schoolhouse gate is an open question” in the Third Circuit. The district court concluded that even if school speech restrictions could apply to off-campus speech, Levy’s messages were insufficiently disruptive for the school to discipline. The school appealed, and Ms. Levy won again at the Third Circuit Court of Appeals. That court’s opinion laid out a newly articulated rule that prohibited school officials from regulating off-campus speech like on-campus speech.
It’s a fool’s errand to try and predict the direction of a Supreme Court judgment based on oral arguments. Yet again, it’s the only thing we have at present, and a bench largely cynical to appeals for more speech restrictions is certainly better than one credulous to them. A decision in this case is expected before the Court breaks for its summer recess in July.
Read more from Scott D. Cosenza.