The Authority to Punish Lewd Speech is Restricted As soon as a Scholar Exits College Grounds | Tucker Arensberg, P.C.

Mahanoy area Sch. Dist. v. BL through and through Levy, 141 S. Ct. 2038 (2021). The United States Supreme Court believes that while schools can sometimes regulate student speech that takes place off campus, the school district violated this student’s First Amendment rights when she used her for a vulgar social media Suspended post outside of school from the junior vars cheerleading team.[***]


BL, a high school cheerleader, posted a “snap” that showed a photo of her and a friend holding their middle finger with the text “f[***] School f[***] Softball f[***] to cheer[***] everything “is placed over the picture. BL picked up the Snap at a local supermarket over the weekend when she was not participating in any school activity. The snap didn’t mention high school or any picture of high school. In addition, the Snap was only shared with friends of BL on SnapChat (a social media platform), so it wasn’t open to the general public.[***]

Shortly after BL sent the snap, one of the coaches on the cheerleading team informed BL that she had been fired from the team. The coach printed out the snap and told BL that the snap was “disrespectful” to the coaches, the school, and the other cheerleaders.[***]

The district court issued an injunction to the district to reassign BL to the cheerleading team. With reference to Tinker v. Des Moines Independent Community School Dist., 393 US 503, the district court found that BL’s punishment was in violation of the First Amendment because their Snapchat posts had not caused material disruption in the district. The third district upheld the ruling, but the majority argued that Tinker hadn’t filed a motion because the district didn’t have the power to regulate student speech off campus.[***]

On appeal, the Supreme Court ruled that while public school districts may have a particular interest in regulating some off-campus speech by some students, the reasons given by the district in this case were insufficient to justify BL’s interest in freedom of expression overcome.[***]


The Supreme Court ruled in the landmark Tinker case that students “do not give up their constitutional rights to freedom of speech and expression. . . at the school gate. ”However, the Court has also made it clear that courts must apply the protective measures of the First Amendment to pupils“ in view of the special characteristics of the school environment ”. One such feature is the fact that districts are sometimes in loco parentis, i.e. in the place of the parents. The court previously outlined three specific categories of student speech that the districts can regulate in certain circumstances:[***]

(1) “decent,” “lewd,” or “vulgar” speech made during a school assembly on the school premises;[***]

(2) Speech made during a school trip promoting “illegal drug use”; and[***]

(3) Language that others can reasonably perceive as “bear”[ing] the imprimatur of the school, ”as it appears in a newspaper sponsored by the school.[***]

In Tinker, the court also said that districts have a particular interest in regulating speech that “materially disrupts classroom practice or significantly disrupts or interferes with the rights of others.” 393 US, 513, 89 S.Ct. 733. In Levy, the Court confirmed that these particular features require latitude when districts regulate the speech made under its supervision.[***]

For off-campus speech, the court ruled that the First Amendment allows public school districts to regulate student speech that is not on campus during the regular school day, but that that power is more limited than the power to Regulation of campus speech. This is because districts are rarely in loco parentis when a student is speaking outside of school. In addition, if the district could regulate the off-campus language, such as the on-campus language, then a district could regulate the language of students 24 hours a day. Accordingly, the Supreme Court found that a district carries a heavy burden to justify an attempt to regulate political or religious speech off campus. Since schools are, after all, the kindergartens of democracy, districts in general should protect, not regulate, unpopular ideas. Accordingly, because of these differences, districts have much less leeway in trying to regulate the language off campus. [***]

The court declined to give a clear line on when districts could regulate off-campus speech, but concluded that the district did not have the right to regulate BL’s speech. [***]

The court found that the speech was a gross criticism of the BL team, coaches and school, which were protected by the First Amendment. The district’s interest in regulating the speech was minimal as the speech took place outside of school hours and outside of school property broadcast to private friends on social media via a personal mobile phone.[***]

As for the district’s interest in banning students from vulgarly criticizing school teams and coaches, the court concluded that districts had little interest in punishing students’ use of vulgar language outside of school. [***]

The court also dismissed the district’s arguments that it tried to prevent disruption in the classroom or cheerleading team, as there was no evidence of disruption on record. Hence, the court concluded that the district did not meet the Tinker standard, which requires more than a desire to avoid the inconvenience and inconvenience that always comes with an unpopular point of view.[***]

Accordingly, while the court disagreed with the Third Circuit’s reasoning that districts cannot regulate off-campus speech, the court upheld the ruling and found that the district was violating BL’s rights.[***]


The court pointed out that disciplinary action may be allowed for off-campus speaking in cases of serious or serious bullying or harassment against certain individuals; Threats against teachers or other students; Failure to comply with any rules regarding teaching, homework writing, using computers, or participating in other online school activities; and violations of school security devices, including material held in school computers, school districts should work closely with their lawyers to determine when language can be punished and when it is protected by the First Amendment. Judge Alito’s concurring option states, “If today’s decision teaches a lesson, it must be that regulating many types of student speeches outside of the building raises serious amendment concerns, and school officials should exercise caution before entering move to this area. ” [***]

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