Student Free Speech — New Authority, Washington Cases, and Students’ Rights Resources

As the 2021–22 school year gets under way, students are hitting the books and Snapchatting their friends, all with new clarification of their free speech rights from the highest court in the land. On June 23rd the U.S. Supreme Court handed down a decision in Mahanoy Area School District v. B.L.. It is the first major decision on student free speech since the Court, in 2007, narrowly ruled against Joseph Frederick in his bid to challenge his suspension for holding up a banner reading “Bong Hits 4 Jesus” at a school-supervised event.

In 2017 Brandi Levy expressed her displeasure about not making the varsity cheerleading team with a profanity laced post to the Snapchat social media app. It was accompanied by a picture of herself with her middle finger raised. Students shared screenshots of the post with team coaches and Levy was suspended from the junior varsity squad for one year for violating team and school rules. Levy sued, arguing her First Amendment rights had been violated. The federal district court and Third Circuit Court of Appeals agreed with Levy. The Supreme Court affirmed.

Mahanoy tackles the increasingly complex and contentious issues that arise in the age of social media. The justices were tasked with the question of whether the landmark case Tinker v. Des Moines Independent Community School District, 393 US 503 (1969), applies to a type of student speech that often takes place off campus and outside of school hours. Justice Stephen Breyer, in his majority opinion, left the door open for schools to regulate off-campus speech in some instances such as severe bullying and threats. But the Court found that Levy’s Snap did not cause “substantial disruption” at the school and outlined “three features of off-campus speech that often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech.” Of one of the features, Breyer writes:

[T]he school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the ‘marketplace of ideas.’ This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it.’

Washington Cases

Prior to Mahanoy, a “quartet” of cases outlined the Supreme Court’s understanding of the “special characteristics” of schools in the context of free speech rights. One of those decisions, Bethel School District №403 v. Fraser, 478 US 675 (1986), stemmed from an incident in Spanaway, Washington involving Bethel High School student Matthew Fraser. He delivered a speech at a student assembly in 1983 that included several sexual references, resulting in a 3 day suspension for violation of school rules. The Court ruled in favor of the school saying, “[I]t was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the ‘fundamental values’ of public school education.” Fraser said in 2001 that he continued to disagree with the Supreme Court decision arguing, “Public schools are setting a general tone of authority and control….They are teaching students to obey authority without question. And in a democracy, that is a very dangerous thing to do.”

Washington federal courts have also been called upon to balance free speech rights with safety in an era of rising school violence. In Emmett v. Kent School Dist. №415, 92 F.Supp.2d 1088 (2000), the U.S. District Court for the Western District of Washington granted Kentlake High School senior Nick Emmett a temporary restraining order after he was suspended for creating a website on his own time that listed mock obituaries of fellow students. The court said that the out-of-school nature of the speech combined with no evidence of a threat signaled a violation of Emmett’s First Amendment rights.

A year later, the 9th Circuit Court of Appeals took up the case of James LaVine, a Blaine, Washington high school student. LaVine claimed his First Amendment rights were violated when he was temporarily expelled after showing a violent poem he had written to his 11th grade English teacher. The Court, applying Tinker, ruled in favor of the school in LaVine v. Blaine School Dist., 257 F.3d 981 (2001). It held that LaVine’s record of personal struggles combined with the violent content of his poem “were sufficient to have led school authorities reasonably to forecast substantial disruption of or material interference with school activities.” An analysis of the case can be found in the First Amendment Center report Student Expression in the Age of Columbine: Securing Safety and Protecting First Amendment Rights.

Resources

Library Print and Database Collection

First Amendment Law in a Nutshell by Jerome A. Barron, KF4770 .B37 2018

Free Speech on Campus by Erwin Chemerinsky, KF4772 .C54 2017

Smolla and Nimmer on Freedom of Speech by Rodney A. Smolla, KF4772 .N54 1996 (ask our librarians about Westlaw access to this title)

Children and the Law: Rights and Obligations by Thomas A. Jacobs, KF479 .A15 C453 (ask our librarians about Westlaw access to this title)

Education Law: First Amendment, Due Process and Discrimination Litigation by Ronna Greff Schneider (ask our librarians about Westlaw access to this title)

Lentz School Security by Mary A. Lentz (ask our librarians about Westlaw access to this title)

Internet Law and Practice (ask our librarians about Westlaw access to this title)

Online Resources

Mahanoy Area School District v. B.L., SCOTUSblog

Cheerleader’s Snapchat vulgarity had a message, Supreme Court says in 8–1 ruling against school, ABA Journal

Laws, Regulations, Superintendent of Public Instruction

RCW 28A.320, Common School Provisions — Provisions Applicable to All Districts

RCW 28A.600, Common School Provisions — Students

WAC 392–190, Superintendent of Public Instruction — Equal educational opportunity — Unlawful discrimination prohibited

WAC 392–400, Superintendent of Public Instruction — Student Discipline

Harassment, Intimidation, and Bullying (HIB), Washington Office of Superintendent of Public Instruction (includes cyberbullying information)

Religion in Schools, Washington Office of Superintendent of Public Instruction

School-Sponsored Media

Washington Becomes 14th State to Pass New Voices Law, Whatcom Watch

2018 Senate Bill 5064, Washington’s New Voices Act legislative documents

A Guide to Washington’s New Voices Act, Student Press Law Center

Washington Journalism Education Association

JEA Scholastic Press Rights Committee

Other Online Resources

Mahanoy Area School District v. B.L.: The Court Protects Student Social Media but Leaves Unanswered Questions, 2021 CATO Sup. CT. REV. 93 (2021)

Deciding Not to Decide: Mahanoy Area School District v. B.L. and the Supreme Court’s Ambivalence Towards Student Speech Rights, 74 Vand. L. Rev. En Banc 511 (2021)

Free Speech Still Matters, 87 Brook. L. Rev. 195 (2021)

Tinker Stays Home: Student Freedom of Expression in Virtual Learning Platforms, 101 B.U. L. Rev. 2249 (2021)

Tinkering With the Schoolhouse Gate: The Future of Student Speech After Mahanoy Area School District v. B.L., 42 Loy. L.A. Ent. L. Rev. 83 (2022)

Outside Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications, 17 Nw. J. L. & Soc. Pol’y. 145 (2022)

Mahanoy Area School District v. B.L.: Protecting Students’ Off-Campus Speech, 24 Atlantic L.J. 141 (2022)

“Protecting the Superfluous…To Preserve the Necessary”: Whose is the Power? The Case of the Cursing Cheerleader: Mahanoy Area School District v. B.L., 27 Barry L. Rev. 1 (2022)

On-Campus or Off-Campus? — That Is Still the Question: Mahanoy Area Sch. Dist. v. B.L. and the Supreme Court’s New Digital Frontier, 44 Campbell L. Rev. 165 (2022)

“F*ck School”? Reconceptualizing Student Speech Rights in the Digital Age, 107 Cornell L. Rev. 1489 (2022)

Tinker Walked so Mahanoy Could Cheer: The Evolution of Student Speech Culminating in Mahanoy Area School Dist. v. B.L., 55 Creighton L. Rev. 359 (2022)

Mahanoy v. B.L. ex rel. Levy and the Virtual School Environment: A Framework for Regulating Online, Off-Campus Student Speech, 51 J.L. & Educ. 262 (2022)

Constitutional Law — Tightening the Locks to the Schoolhouse Gate — Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021), 27 Suffolk J. Trial & App. Advoc. 271 (2022)

When Pixels Hurt: A Categorical Exclusion to Tinker for Cyber-Abuse, 10 Belmont L. Rev. 143 (2022)

Here, There, and Everywhere: Defining the Boundaries of the “Schoolhouse Gate” in the Era of Virtual Learning, 75 Fed. Comm. L.J. 125 (2022) (ask our librarians about access to this article)

The Future of the First Amendment Foretold, 57 Wake Forest L. Rev. 897 (2022) (ask our librarians about access to this article)

Put Mahanoy Where Your Mouth Is: A Closer Look at When Schools Can Regulate Online Student Speech, 98 Notre Dame L. Rev. 935 (2022)

Restating the “F” Word: The Cursing Cheerleader, the First Amendment, and Proximate Cause, 56 U.S.F. L. Rev. 363 (2022)

Off-Campus Speech and the Basis of Public-School Authority in Mahanoy v. B.L., 74 Baylor L. Rev. 717 (2022)

Mahanoy Area School District v. B.L.: The Right to Free Speech. In the Age of Social Media, Where Do We Go With a Lack of Direction from the Court?, 56 UIC L. Rev. 549 (2023)

Silencing Students: How Courts Have Failed to Protect Professional Students’ First Amendment Speech Rights, 80 Wash. & Lee L. Rev. Online 247 (2023)

Mahanoy Area School District v. B.L.: Keeping Off Campus Speech Off Limits, 100 Denv. L. Rev. Forum 1 (2023)

Regulating Off-Campus Student Expression: Mahanoy Area School District v. B.L.: The Good News for College Student Journalists, 21 First Amend. L. Rev. 40 (2023)

Tales Out of School: Delineating Student Speech Protections for the Digital Age, 22 U. N.H. L. Rev. 93 (2023)

What Happens at the Cocoa Hut Doesn’t Stay at the Cocoa Hut: Assessing K–12 Student Speech Rights After Mahanoy Area School District v. B.L., 73 Case W. Rsrv. L. Rev. 1083 (2023)

Mahanoy and its Progeny: What do They Mean for the Future Regulation of Student Speech Off-Campus and in Extracurricular Activities, 33 Widener Commonwealth L. Rev. 49 (2024) (ask our librarians about access to this article)

Our Dumb First Amendment: The Case of the Foul-Mouthed Cheerleader, 126 W. Va. L. Rev. 561 (2024)

You Tweeted What?: Navigating First Amendment Concerns in the Public School Setting, 81 ALA. LAW. 416 (2020) — published prior to Mahanoy

Unsettled Questions in Student Speech Law, 22 U. PA. J. Const. L. 1113 (2020) — published prior to Mahanoy

ACLU Student Speech and Privacy

Free Expression on Social Media, First Amendment Center Primer

Free Speech Rights of Students, University of Missouri-Kansas City’s Exploring Constitutional Law

Rights of Students, The First Amendment Encyclopedia

Learn More About Student Rights, Foundation for Individual Rights in Education

Classroom Walk-Outs and School Protests, First Amendment Center Primer (SC)