Spring 2022 Symposium

The First Amendment, which grants the freedom of speech, press, religion, and right to assembly, is one of the more transparent and well-known amendments included in the Bill of Rights[1]. Ratified by Congress in 1791, the document, but especially the First Amendment, was quite revolutionary, diverging from the restrictive sentiments of the monarchist governments at the time. While other countries might strike down against critical speech directed at their monarchs and other leaders, this amendment protects all forms of speech. A caveat of the amendment’s overall simplicity is, naturally, its lack of specificity, causing many questions to arise surrounding what exactly constitutes free speech. Malicious, targeted speech that might endanger an individual is rightfully not protected under the amendment as outlined by Brandenburg v Ohio (which established the idea of evaluating speech’s is likelihood of inciting lawless action)[2]. What has further complicated understanding the limits of the First Amendment is the creation of the internet and social media which provide concentrated forums which encourages all forms of speech. We can see the complexities that social media bring to First Amendment-related legislation when analyzing the case of Mahanoy Area School District v B.L., which questions if school officials have the authority to regulate off-campus student speech3. My paper begins by outlining the basic facts of the case and exploring how the location of the articulated speech and its involvement with social media distinguishes it from other similar cases. Whilst providing an analysis of the majority, concurring, and dissenting opinions, I will look at the decision’s undeniable impact on schools, social media, students, and overall legal theory. I will conclude by arguing for the importance of considering context and culture when looking at this case, and examining the role age plays when deciding on social media-related cases.

When Mahanoy Area High School student Brandi Levy (also referred to as B.L) got rejected from her school’s varsity cheerleading team, she took to social media to express her frustration with the decision, uploading two temporary posts on the popular app Snapchat. One of these posts was riddled with profanities stating, “fuck school fuck softball fuck cheer fuck everything”, the other further elaborates on the situation that caused this sudden explosion of discontent. The school administration was informed about B.L.’s posts through a screenshot taken by a fellow classmate and took action by suspending B.L. from the junior varsity cheerleading team for the upcoming school year. The punishment allocated to B.L. caused her family to take legal action, filing a lawsuit to the Federal District Court citing an infringement of B.L’s First Amendment rights. The District Court and later the Third Circuit both ruled in favor of B.L.[3]

Although the case was seemingly decided by the District Court and Third Circuit, what further complicates the logistics of the case is that it diverges from past precedent. Prior student speech-related cases decided by the Supreme Court mainly dealt with on-campus speech or speech spoken during a school event. B.L.’s speech was not only done solely through social media but was sourced from an off-campus convenience store. One of the most impactful student-speech cases is Tinker v Des Moines Independent Community School District, which permitted schools to regulate on-campus speech that has proven to disrupt the learning environment[4]. Taking Tinker’s ruling and the uniqueness of B.L.’s circumstance into consideration, the school district filed a petition of certiorari to the Supreme Court, asking the Court to determine whether the decision articulated in Tinker also applies to off-campus student speech.

In an 8-1 decision, the Supreme Court ruled in favor of B.L. and determined that the First Amendment does indeed limit the interference of the school district in off-campus student speech, with some exceptions. Justice Stephen Breyer conveyed the majority opinion. While by siding with B.L. The Court stands in agreement with the final decision made by the District Court and Third Circuit, what is particularly interesting about the majority opinion delivered by Beyer is that it disagrees with the Third Circuit’s reasoning as opposed to their decision. While the Third Circuit argues that schools have no jurisdiction to regulate and reprimand students’ off-campus speech[5], Breyer and the majority argue that there are instances where schools can interfere in off-campus speech, like in response to threats aimed at students or faculty members3. This is purposefully one of the only examples of a possible exception given by Breyer due to the majority’s disinterest in using this case to craft a precedent.

While citing the existence of such exceptions is meant to undercut the Third Circuit’s decision, Breyer goes on to define 3 aspects of off-campus speech that might invalidate future anomalies. First, he states the unlikelihood of schools to remain in loco parentis (assuming the parental responsibility of a student) in off-campus locations and when considering off-campus speech. Second, he mentions that regulating off-campus speech by the same legal standards as on-campus speech, where everything spoken by students on school grounds is subject to monitoring and discipline by the school, would mean regulating every single word uttered at all times of the day, a clear infringement of one’s First Amendment rights. Third, he acknowledges the patriotic duty of public schools to uplift the ideals of democracy and be receptive to all opinions and criticisms. Through expanding on these circumstances that might invalidate such exceptions, Breyer points out that the potential leeway schools might have to control off-campus speech is extremely limited and circumstantial. 

He expatiates on this assertion by harkening back to B.L.’s case, simultaneously performing an analysis of her textual speech and refuting the school district’s counterarguments. Beyer states that B.L.’s speech, while containing profanities, is more critical than aggressive. Her words, he continues, did not specifically mention the school or any specific person, and was conveyed to a private group of friends during her own time off-campus. He then brings up some of the arguments articulated by the school: their goal of teaching good manners, preventing disruption to the classroom, and the decrease in student morale in reaction to these posts. These arguments are contradicted, Breyer argues, by the fact that: 1, B.L.’s speech was meant to be more critical than hurtful, was spoken during her own time, and in a situation where the school does not stand in loco parentis. 2, there was no evidence of any significant disruption to the school day. And 3, there is also no evidence of a decrease in morale that can be attributed to said posts. Ultimately, despite disagreeing with the logistics of the Third Circuit’s reasoning, these perspectives form the basis of the majority’s ruling on behalf of B.L3.

Conservative-leaning Justice Alito delivers the concurring opinion in which he also agrees with the majority’s opposition to the Third Circuit. Instead of reemphasizing what has been already said by Breyer, he seeks to establish a more definite framework for analyzing off-campus speech. He emphasizes the fact that when parents enroll their children in public schools, as opposed to boarding schools, not only are the students not stripped of their First Amendment rights, but the parents do not relinquish their full authority over their children. Rather, schools garner just enough authority to carry out their educational goals and other jobs allocated by the parents (like sports or tutoring). Alito also establishes that student speech that is not directly referring to the school and its members and instead cites criticism, concern, or addresses potentially controversial subjects is almost always beyond the jurisdiction of school authorities. Harkening back to the case of B.L, Alito reiterates most of the points already mentioned by the majority opinion: the use of her own time and lack of any disruption, lack of a decrease in student morale and aggressive language. Alito’s concurring opinion further elaborates and simplifies the rather confusing nature of the majority’s opinion3.

This unnecessary complexity created by the majority opinion through their disagreements with the Third Circuit’s explanation, agreement with the District and Third Circuit’s decision, and lack of a clear guideline regarding the instances where administrators can regulate off-campus speech is exactly why some cite a preference for the guidelines constructed by the Third Circuit ruling as opposed to the Supreme Court. William Creely, director of the Foundation for Individual Rights in Education (FIRE), expresses distaste for the ruling of the majority opinion. In our recent interview, he discusses how the Third Circuit presents a very clear and distinct definition of what kind of student speech is protected by the First Amendment by stating that all speech spoken outside of school grounds is defined as off-campus speech. He continues by arguing that the three provisions outlined by the majority are a lot less clear and would be hard to apply, complicating the decision-making behind the  rulings for future related cases.[6] FIRE, an organization that often partners and shares ideas with the American Civil Liberties Union (ACLU) who represented B.L., pushes this perspective outlined by Creely in their amici curiae brief. In which, apart from furthering the arguments presented by the Supreme Court, they urge the Court to uphold the Third Circuit’s ruling which they contend provides much more clarity[7].

Clarity is crucial when crafting legal frameworks. The Third Circuit’s ruling, like I previously mentioned, is favored by some due to its simplicity whilst being generally broad. The majority opinion puts themselves in a difficult position, as standing in opposition to the Third Circuit’s reasoning means that they are expected to justify this decision. However, their justification further complicates everything as they, while bringing up the possibility of exceptions, do not construct a guideline for what constitutes these exceptions, formulating a gray area. In an article entitled Justices and Legal Clarity: Analyzing the Complexity of U.S. Supreme Court Decisions, Ryan Owens and Justin Wedeking discuss how law serves as a guidebook, providing information and highlighting the rules for the larger society. If laws render incomprehensible and become too complex,  people lack the ability and motivation to accurately follow said law[8]. When considering the level of unnecessary complexity in the majority opinion, it leaves many to still question what specific off-campus student speech qualifies to be protected under the First Amendment.

On the opposite end of the spectrum, Eric Eshbach, legal expert of the Pennsylvania Principals Association, an organization that sided with the Mahanoy Area School District, disagrees with the generality of the Third Circuit's analysis. Eshbach points out that its lack of specificity presents issues on the school’s end. Schools, he continues, operate under the rule that if off-campus speech can draw a clear connection back to the school, administrators have the jurisdiction to investigate and reprimand accordingly. By dictating that all speech, regardless of its potential effect on the school, is protected, Eshbach points out that it limits the ability of schools to fully investigate such threats. A more specific law would prove to be more beneficial on the school’s end so they can know exactly when they are allowed to interfere in a student's off-campus speech. Thus, he prefers the attempt made by the Supreme Court to outline said guidelines[9].

The reason why the Third Circuit and majority’s attempts to determine whether schools can interfere with students’ off-campus speech are insufficient is potentially due to the fact that they have not yet hit the optimal balance between specificity, clarity, and generality in their legal framework[10]. Law needs to be specific enough to last the test of time and fend off future queries whilst being general and clear enough to be comprehensible to the layperson and applicable to the constant changing of times. Although the majority addresses their desire for future cases to more pointedly define the allowance schools are allotted regarding off-campus speech, their attempt to lay out some basic limits and the Third Circuit’s simple ruling that off-campus speech is always protected by the First Amendment does not hit the balance required by effective and lasting legal legislation.

Justice Clarence Thomas mentions the inconclusiveness of the majority’s arguments as one of the reasons for his opposition to the majority opinion in his dissent. It is important to note that Thomas is conservative-leaning, providing some context for his second reason for dissent which is the Court’s lack of historical consideration or alignment with stare decisis[11]. One of the pinnacles of conservative ideology is their desire to limit drastic change by conforming to historical precedent[12]. Considering this trend, it is understandable that Justice Thomas, a stricter and more traditional conservative than some of his other colleagues on the bench, would take issue with the majority’s eagerness to shift away from the law established by past legislation. In his dissent, Thomas mentions that 1859’s Lander v Seaver concluded that schools could discipline students for off-campus speech that presents immediate harm to the school environment and has long served as the mandate for schools to regulate off-campus speech (as previously alluded by Eshbach). Based on this principle, he concludes that B.L. can be subject to discipline as her speech had the purpose of degrading the cheerleading program and all involved. He also attacks the majority’s judgment of the length of punishment assigned, citing that the majority did not provide any historically backed evidence to justify that courts can critique the length of punishment distributed by schools3.

Thomas also acknowledges the lack of precedent surrounding the circumstances of student free-speech cases that often circulate today, alluding to the recent implementation of the internet and social media in society. This would rightly prove to be problematic for those relying on the conservative ideology, as prior cases like Tinker were not decided in the era of the internet, for the most part. There is little legal precedent to rely on when considering free speech cases that are solely based on online speech, thus Thomas takes issue with the court using cases that deal with similar topics but have dissimilar circumstances. He is also dissatisfied with the Court’s interpretation of and use of the doctrine of loco parentis in their argument and mentions that the lack of straightforwardness in Tinker inherently flaws their argument. Thomas claims that their misuse and reliance on Tinker in their majority opinion causes them to ignore critical details of B.L.’s testimony, later pointing out a couple of missed, potentially critical details. He gives light to the majority’s lack of emphasis on B.L.’s involvement in an extracurricular activity, which is significant because historically, schools retain authority in school-sanctioned activities despite their location. He concludes his dissent by discussing how the majority failed to determine exactly how much authority schools retain to regulate student’s online speech that references the school and ignored the fact that speech, especially when sourced from the internet, can travel and have on-campus repercussions, thus allowing schools to treat such speech as being dictated on campus3.

A flaw of Thomas’ use of the conservative method of relying on past precedent in this case particularly is the case’s progressive nature. A contradiction arises between Thomas’ usage of past cases, some of which are well removed from the social media era, to guide his decisions on this case which deals with the mechanics of the present. While, as I mentioned prior, cases like Tinker do deal with student-free speech, it is during a different era. Social media brings new problems, some of which Thomas does acknowledge in his dissent, specifically the ability to access the media in any location desired. So, past cases might prove to be obsolete in conjunction with First Amendment cases that deal with technology and the media, thus emphasizing the need for a new, more relevant legal precedent to be established.

As the case was just decided last year in 2021, the full impact of Mahanoy v B.L. is still being examined. The nature of the case, relating to social media and free speech, and the time in history when it was decided, a time where more people are becoming politically involved and informed, garnered the attention of the many. People seemed to be divided mainly regarding the question of how much power schools muster to regulate off-campus speech. Educational groups and the Biden Administration emphasized the need for administrators to be well equipped to address potentially harmful threats[13] while free speech organizations like the ACLU and FIRE pointed out that student speech must be protected, especially outside the school gates[14]. In the end, both sides had something to celebrate about[15]. 

The Court protected students’ off-campus First Amendment rights to the relief of nationwide proponents of free speech. Educators were also grateful to the Court for standing in opposition to the Third Circuit’s analysis and recognizing that there are some instances where schools have the jurisdiction to regulate off-campus speech[16]. Schools also took note to accentuate their social media policies and operate with more care when regulating all forms of student speech[17].  Eric Eshbach, responding to a question regarding the impact of the case in the world of school administrators, states how it also provides more clarity regarding when schools can intervene9. We can see this further specificity and clarity benefit itself in the recent case Doe v. Hopkinton Public Schools. The First Circuit of the U.S. The Court of Appeals utilized the reasoning cited in Mahanoy v B.L. to conclude that a school was allowed to reprimand a student for their derogatory comments made about a fellow classmate[18].

Mahanoy v B.L.’s decision also motivated some organizations to revisit and argue to overturn past decisions. C1.G. v Siegfried was a case decided prior to Mahanoy, which also questioned if schools could reprimand students for their off-campus speech. In this case, a student posted an offensive, anti-Semitic Snapchat post and, on top of receiving punishment from their parents, was expelled as a result. In the wake of Mahanoy, organizations like FIRE and the CATO institute called on the Tenth Circuit court to revisit the decision, citing the newer guidelines regarding loco parentis in conjunction with off-campus speech and the lack of evidence regarding a plausible disruption to the school environment[19],[20].

Mahanoy also presents a prime example of the importance of considering the context, culture, and the impact of age in legal proceedings. Now, curses or other potentially threatening words are being used more often in our spoken language; this trend is also well reflected online. Social media is a forum for looser, less formal communication, so ‘slang’ words and curses are commonly used[21]. Eric Eshbach mentions how such curse words and vulgarities are coming back to a place in society where it is not as problematic, due to how often it is used in speech today9. The problem arises when others, who might be more removed from this world, catch wind of such speech and thus might misinterpret it. University of Tennessee student Kimberly Diel was on the verge of expulsion when her university discovered her posts on various social media platforms, donning a tight dress and captioning her pictures with explicit lyrics; the university claimed her posts were vulgar and crude[22]. But, when put into the context of internet culture, such posts are one in a million. Harken back to B.L.’s case and consider the fact that the speech was articulated through the Snapchat app. The function of Snapchat is for users to post shortened snippets of their day, which last for a 24-hour period. Users who post on Snapchat are aware of this temporary feature, so B.L.’s decision to post on that app undermines the emphasis the school is attempting to make on the gravity of her words.

There are indeed some who post on social media apps with the intention to carry out the harm they declare to commit. Some of the school shooting incidents in the past decade can be traced back to online posts. Words usually used to incite or threaten violence are now being used in more casual speech, so it is hard to distinguish the threats from more casual usage. Because of the rampant amounts of school shootings and school violence in the past couple of years, schools are taking students’ online posts more seriously. Thus, it is difficult to incorporate the argument of context and the culture of social media in this specific instance.

A major factor that might influence one’s ability to fully understand the culture of social media and adapt to the changing times is one’s age. As social media takes root in society and more cases that involve social media come to the attention of the lower courts and Supreme Court, those that are equipped to better understand the logistics of the media are those who are younger or more immersed in this culture. The current average age of the justices on the Supreme Court is 64.7, likely spending a majority of their years thus far in a world void of social media. Imagine if these Justices were younger and well-versed in social media culture. It is possible that this case would not have been picked up or possibly would have shifted into one that solely focuses on the extent of the school’s regulation of off-campus speech rather than also focusing on the specific words said. As a teenager viewing this case, it is clear to me that B.L.’s words are more critical than threatening, having been exposed to countless instances of others expressing their own criticisms, at times with vulgar terms. These Justices, and to an extent the school administrators, likely do not have this kind of extensive exposure. William Creely mentions that there is an age difference between the Justices that decided this case and the common user of social media and views that if the judges were to be younger, the case might have gone differently. He views that cases which involve social media should not be decided by the court due to this generational divide6.

This then brings up the question regarding implementing potential term or age limits on Supreme Court Justices. If an age or term limit were to be implemented, what is potentially lost is the undeniable level of experience older members provide. The problem with the current system is that a detachment and disconnect with the public occurs as one ages and spends more time on the bench. By putting a cap on age and, potentially, institute terms, it creates a more steady flow of new personnel and perspectives to preside over cases and provide more pointed and accurate analysis, especially with cases that deal with social media. But what if this is not the answer at all? What if you institute a mandate that requires social media cases to also be decided in conjunction with younger legal prospects? While this would not alter the judicial nomination system that is set in place today, it would potentially provide more accurate interpretations and opinions that the bench can then use to influence their decisions and avoid any misjudgments regarding the culture of social media.

Although the decision to side with Brandi Levy was seemingly simple when considering the 8-1 majority, it was the question regarding the school’s jurisdiction to regulate off-campus student speech that proved to be the main center of serious debate in the legal sphere and the media. The complexity of this question should not be understated, as the majority and concurring opinions were not able to come up with a definite consensus, leaving the decision to be made in future cases. Thomas’ dissenting opinion exposed some of the issues that interlace the majority’s opinion, mainly the lack of clarity and precedent established. This inherent complexity affected the impact of the case, as various people cited preferences for following either the Supreme Court’s reasoning or that of the Third Circuit. But, despite this confusion that it incites, Mahanoy has already impacted First Amendment social media cases that have since been decided. Along with the complexity that it incites, and the impact it has already shown in the legal world, it also reinvigorates the debate surrounding age in the Supreme Court, seeing the various ways one can interpret vulgar words/phrases on social media depending on their age and exposure to the online culture. All of this analysis and interpretation is sourced from a simple case involving a teenager who expressed frustration about not making a varsity cheerleading team, who not only encouraged others to expose the injustice faced in schools but reintroduced the debate about student-free speech.

References

[1] “The Bill of Rights: A Transcription.” National Archives and Records Administration, National Archives and Records Administration, 19 Jan. 2022, https://www.archives.gov/founding-docs/bill-of-rights-transcript.

[2] Brandenburg v. Ohio, 395 U.S. 444 (1969)

[3] Mahanoy Area School District v. B.L. 594 U.S. (2021)

[4] Tinker v. Des Moines Sch. Dist., 393 U.S. 503 (1969)

[5] Mahanoy Area School District v B.L., 19-1842 (2019)

[6] Okafor, Grace, and William Creely. 18 Apr. 2022.

[7] Mahanoy Area School District v B.L. Brief of Amici Curiae of Foundation for Individual Rights in Education. 2021. https://www.supremecourt.gov/DocketPDF/20/20-255/173442/20210331112352913_20-255%20Brief.pdf.

[8] Owens, R.J. and Wedeking, J.P. (2011), Justices and Legal Clarity. Law & Soc'y Rev, 45: 1027-1061. https://doi-org.libproxy2.usc.edu/10.1111/j.1540-5893.2011.00464.x

[9] Okafor, Grace, and Eric Eshbach. 25 Apr. 2022.

[10] Fon, Vincy, and Francesco Parisi. “Optimal Specificity of Laws.” The Economics of Lawmaking, Oxford University Press, 2009, https://doi.org/10.1093/acprof:oso/9780195374155.003.0002.

[11] Smarick, Andy. “The Truth about Stare Decisis – Andy Smarick.” Law & Liberty, 22 Dec 2021, www.lawliberty.org/the-truth-about-stare-decisis/. Accessed 3 May 2022.

[12] Schlueter, Nathan. “What Is Conservatism?” Selfish Libertarians and Socialist Conservatives?, Stanford University Press, 2020, pp. 13–44, https://doi.org/10.1515/9781503600294-003.

[13] Roebuck, Jeremy. “A Pa. High School Cheerleader’s Profane Snapchat Rant Didn’t Warrant Suspension, Supreme Court Rules.” Https://Www.inquirer.com, 23 June 2021, www.inquirer.com/news/scotus-mahanoy-school-cheerleader-snapchat-brandi-levy-20210623.html.

[14] “Supreme Court Decision Rules to Protect Students’ Full Free Speech Rights.” ACLU Pennsylvania, 23 June 2021, www.aclupa.org/en/press-releases/supreme-court-decision-rules-protect-students-full-free-speech-rights. Accessed 4 May 2022.

[15] Blackwell LLP, Husch. “Supreme Court Rules on Student off Campus Speech: Mahanoy Area School District v. B.L.” JD Supra, 7 Winter 2021, www.jdsupra.com/legalnews/supreme-court-rules-on-student-off-8702142/. Accessed 4 May 2022.

[16] Marlow-Jones, Nicole. “Analyzing the Impact of Mahanoy Area School District v. B.L.: What the Recent “Cheerleader Case” Decided by the Supreme Court Means for School Districts – Ferrara Fiorenza PC.” Ferrara Fiorenza PC, July 2021, www.ferrarafirm.com/2021/07/analyzing-the-impact-of-mahanoy-area-school-district-v-b-l-what-the-recent-cheerleader-case-decided-by-the-supreme-court-means-for-school-districts/#:~:text=The%20case%20has%20raised%20difficult.

[17] “Supreme Court Sides with Student in Social Media Free Speech Case.” Quarles & Brady LLP, www.quarles.com/publications/supreme-court-sides-with-student-in-social-media-free-speech-case/.

[18] Cope, Sophia. “First Circuit Affirms School’s Punishment of Students for Online Social Media Posts.” Electronic Frontier Foundation, 7 Dec. 2021, www.eff.org/deeplinks/2021/12/first-circuit-affirms-schools-punishment-students-online-social-media-posts. Accessed 4 May 2022.

[19] Cato.org, 2022, www.cato.org/legal-briefs/c1g-v-siegfried. Accessed 4 May 2022.

[20] FIRE. “C1.G. V. Siegfried.” FIRE, 16 Sept. 2021, www.thefire.org/c1-g-v-siegfried/. Accessed 4 May 2022.

[21] Lidsky, Lyrissa Barnett, and Linda Riedemann Norbut. “I  U: Considering the Context of Online Threats.” California Law Review, vol. 106, no. 6, California Law Review, Inc, 2018, pp. 1885–930, https://doi.org/10.15779/Z38JM23G4C.

[22] Hartocollis, Anemona. “Students Punished for “Vulgar” Social Media Posts Are Fighting Back.” The New York Times, 5 Feb. 2021, www.nytimes.com/2021/02/05/us/colleges-social-media-discipline.html.