By Stacy Allen
For the first time in over 50 years, a high school student has won a free speech case in the Supreme Court. In a narrow decision issued on June 23, 2021, an 8-1 majority (including all but Justice Clarence Thomas) ruled that a Pennsylvania high school could not punish a student for sending an off-color Snapchat to about 250 people in which she complained about not making the varsity cheerleading squad or getting her preferred softball team position.
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The Snapchat included an image of the student and a friend making “the finger” with the caption “F___ school f___ softball f___ cheer f__ everything.” While Snapchat messages ordinarily disappear shortly after they are sent, another student who received it took a screenshot and showed it to her mother, a cheerleading coach. In response, school officials suspended the student from junior varsity cheerleading for a year for using profanity in connection with a school extracurricular activity, which they contended violated team and school rules.
Writing for the majority in Mahoney Area School District v. B. L. and calling America’s public schools “the nurseries of democracy,” Justice Stephen G. Breyer emphasized that part of what schools must teach is the value of free speech and protecting the “marketplace of ideas.” Noting that schools have a legitimate interest in regulating off-campus student speech that substantially disrupts “learning-related activities or the protection of those who make up a school community” (e.g., hacking school computers or cyberbullying), the majority found that the school here had gone too far.
Writing for the majority in Mahoney Area School District v. B. L. and calling America’s public schools “the nurseries of democracy,” Justice Stephen G. Breyer emphasized that part of what schools must teach is the value of free speech and protecting the “marketplace of ideas.”
Rather than declare a hard-and-fast rule, Justice Breyer noted three factors which should be considered when evaluating the constitutionality of school regulation of off-campus student speech. First, “off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.” Second, courts should be more skeptical of school regulation of off-campus speech, lest the student be prevented from engaging in any speech at all. Off-campus political or religious speech is deserving of special protection, such that “the school will have a heavy burden to justify intervention.” Third, far from punishing speech, schools have an interest in protecting a student’s unpopular expression, and should teach that the free exchange of ideas “facilitates an informed public opinion, which when transmitted to lawmakers, helps produce laws that reflect the people’s will.” “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.”
Justice Breyer found the Snapchat worthy of protection, in that it constituted criticism “of the team, the team’s coaches and the school—in a word or two, criticism of the rules of a community” of which the student is a part. He further found it significant where and how the student spoke: the message was transmitted after school hours from an off-campus location, and did not identify the school or “target any member of the school community with vulgar or abusive language.” The message was transmitted through a personal cell phone to a private circle of Snapchat friends. The purported interest the school had in punishing the use of vulgar language aimed at part of the school community was “weakened considerably” by the fact that the student spoke outside school on her own time, and that the vulgar language was contained in a message of criticism. Justice Breyer found that were she an adult, “the First Amendment would provide strong protection” for the student’s criticism, vulgarity included. Equally unpersuasive were the school’s claimed interests in preventing disruption or promoting team morale. Regarding whether the student’s words were unworthy of the robust protections the First Amendment provides, Justice Breyer observed that “sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
In over 30 years of litigating complex state and federal cases across the country, Austin partner Stacy Allen’s aggressive approach to discovery and trial preparation has resulted in favorable judgments and settlements for a wide array of sophisticated commercial clients. Stacy’s national practice concentrates on intellectual property litigation, defense of federal and state class actions against insurers, defense of media companies and news organizations against defamation and privacy tort claims, defense of managed care companies in claims arising from complex provider contracts, and other commercial lawsuits and arbitrations alleging breach of contract, unfair trade practices, fraud, and other business torts.
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