The US Supreme Court returned to the treacherous arena of student speech for the first time in nearly 15 years after hearing oral arguments against BL in the Mahanoy Area school district on April 28. Based on the judges’ comments, a close decision seems likely.
Mahanoy is a Pennsylvania public high school student who went to Snapchat to comment on frustration at not being accepted into the university’s cheerleading team. She was doing her post off campus, on a Saturday, with no school resources. The school’s coaches suspended her from the junior varsity cheerleading team, claiming the post was against team rules. The student sued.
A federal district court found that the school district’s disciplinary action violated the student’s initial adjustment rights by punishing her for speaking that did not cause actual or foreseeable disruption to the school environment. The Third Circle confirmed that “the” online “nature of this off-campus speech makes no constitutional difference.” In January, the Supreme Court granted the school district’s request for review.
Restore freedom of speech to California student
Last year we had the privilege of representing a student in a similar case with a similar speech – specifically in a James Bond parody video posted on YouTube that our client and a group of his off-campus friends created outside of school hours without School resources. Our client, Nathaniel Yu, was advised by a classmate that some people might find the parody “offensive”.
Yu, then president of the junior class 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 making this off-campus speech by removing him from his post as student government and banning him from being elected Associate President of the Student Union during his senior year in school. Last year, our team made the largest known recovery in free speech for students in US history.
No previous Supreme Court decision fits the speech in question perfectly. Our team therefore relied heavily on the involvement of the Mahanoy District Court in opposing the District Defendants’ motion for dismissal. US District Judge Maxine M. Chesney denied the motion, dismissing the argument that the parody was a school-sponsored speech.
The Third Circle went one step further in Mahanoy and stated that speech “outside of school, operated or monitored channels and which is not reasonably interpreted as bearing the imprimatur of the school” cannot be regulated as student speech.
Freedom of speech off campus in the digital age
During oral arguments in Mahanoy, judges wrestled with this primary threshold question: whether public school officials can regulate a student’s private social media post created off-campus, after school, and with no school resources. In other words, do the practical realities of Internet language warrant a new authority for school officials to regulate language that goes well beyond the schoolhouse gate?
In Mahanoy, the Supreme Court has the opportunity to clarify the extent of freedom of speech off campus for students in the digital age. Neither students nor educators benefit from being left in the lurch. A new standard tailored to the reality of language in modern times is therefore needed to ensure that public school officials and students can intelligently assess the types of language that are subject to school regulation.
However, during a hearing, Judge Stephen Breyer stated that he was “scared to death” to write a standard. This and other comments suggest that the court is well aware of the implications of its upcoming ruling.
It therefore seems doubtful whether the court will draft a blanket rule with which all internet speeches outside of campus will be immunized. However, the Mahanoy court ruling could shed light on how the First Amendment principles apply to online speaking in general – a matter of intense public and legal debate in recent years. Will the court strive to establish a new standard for online language? Or will it continue ad hoc adjustments to existing precedents?
Just weeks earlier, Biden v Knight First Amendment Inst. At Columbia University, Justice Clarence Thomas stated that Twitter’s ability to moderate the speaking on its platform raises “interesting and important questions” about the first change. Up to this point, the case law on the first amendment has long had a spatial aspect.
For example, public parks are considered to be “public forums” where freedom of expression peaks. However, a purely geographic framework has become a bit unwieldy as online platforms have blurred or completely abolished traditional geographic boundaries.
Mahanoy and similar cases provide specific examples of this – administrators going beyond the physical campus to regulate online language. Online discourse has become ubiquitous, and social media is one of the favorite channels of activism. Where the Mahanoy court draws the line will have profound consequences for officials and students alike.
A decision in favor of the district could override traditional principles that limit the reach of school officials and discipline students for expressive behavior that occurs anywhere, anytime.
Conversely, a sweeping decision in favor of students could seriously affect educators’ ability to face the modern reality that off-campus speech on the internet can often reach campus at the same time.
The Mahanoy decision is expected sometime in June. While the decision may not be comprehensive, it will be closely examined for its impact on freedom of expression 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 litigator in the Jackson Walker LLP Dallas office, focusing on First Amendment, sports, entertainment and commercial litigation.
Eric Wong and Lauren Ceckowski are litigators with Jackson Walker LLP.
Last year, McFall and Wong scored in Yu v. San Ramon ISD Largest known recovery in student speech case in US history.
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