"F--- school, f--- softball, f--- cheer, f--- everything," Except First Amendment Protections for Student Speech

In June 2021, the U.S. Supreme Court issued its highly anticipated ruling in Mahanoy Area School District v. B.L., 141 S. Ct. 2038 (2021), upholding students' free speech rights for the first time since 1969. In an 8-1 decision, the Court strongly reaffirmed the landmark case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and held the school could not punish a high school cheerleader's off-campus Snapchat message to friends.

Despite the vulgar nature of the message—"Fuck school fuck softball fuck cheer fuck everything" with an image of the student and her friend with their middle fingers raised—the Court found the teenager's critical opinion of school issues worthy of "robust First Amendment protections." Justice Breyer observed it "might be tempting to dismiss B. L.'s words as unworthy of … robust First Amendment protections," but concluded "sometimes it is necessary to protect the superfluous in order to preserve the necessary." And he identified a key government interest the school administration apparently overlooked: to prepare students for citizenship, "the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus." (emphasis added).

The opinion for the Court avoided creating a bright line rule concerning where the speech occurs. "Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus." Instead, the opinion identified "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."

First, the Court examined the right of the school in loco parentis, noting that "geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility." Second, the Court held that "courts must be more skeptical of a school's efforts to regulate off-campus speech," noting that "political or religious speech that occurs outside school or a school program or activity" undoubtedly comes with "a heavy burden to justify intervention." Third, the Court reminded educational institutions that "America's public schools are the nurseries of democracy" which "only works if we protect the 'marketplace of ideas'" and "that protection must include the protection of unpopular ideas, for popular ideas have less need for protection."

Justice Breyer's opinion departed from the Third Circuit's reasoning which had relied extensively on where the Snapchat message was typed and sent—in other words, the physical location of the student and/or the student's use of "school-owned, -operated, or -supervised channels." (The Third Circuit had held that "Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school's imprimatur".) BL v. Mahanoy Area Sch. Dist., 964 F.3d 170, 189 (3d Cir. 2020). The U.S. Supreme Court, however, made clear that such explicit holdings were unnecessary—the cheerleader's off-campus, critical speech had not substantially disrupted or targeted school functions and therefore "d[id] not meet Tinker's demanding standard."

Justice Alito wrote separately (with Justice Gorsuch joining) to clarify the majority's holding. He noted the enormous disparity in treatment that would result if the government could only punish public school students' speech, concluding that attending public schools cannot be conditioned on relinquishing constitutional rights. He asserted that "[i]f today's decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory."

Justice Thomas issued the lone dissent, echoing themes he first set forth in his concurring opinion in Morse v. Frederick, 551 U.S. 393, 422-33 (2007)—a case involving a student's "Bong Hits 4 Jesus" sign at a school-sponsored event. Based on historical analysis and drawing largely on 19th century state court decisions, Justice Thomas concluded that public school students lack First Amendment rights and suggested he would reverse both Tinker and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (where the Court held that public school students could not be compelled to salute the American flag and recite the Pledge of Allegiance).

Justice Alito directly addressed Justice Thomas's dissent on originalist grounds, noting the dated state court decisions are "of negligible value for present purposes." The concurrence explored the doctrine of in loco parentis upon which the dissent focused and found it failed to explain the delegation of parental authority that occurs in American schools today. For "whatever [the student's] parents thought about what she did," the concurrence noted, "it is not reasonable to infer that they gave the school the authority to regulate her choice of language when she was off school premises and not engaged in any school activity."

It remains to be seen how the principles articulated by the Court will apply to future controversies involving off-campus speech and "whether or how ordinary First Amendment standards must give way off campus to a school's special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up school community." However, "to justify the prohibition of a particular expression of opinion," the school would have to show that "its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

Davis Wright Tremaine LLP filed an amicus brief in the Mahanoy case on behalf of Mary Beth and Joe Tinker, key litigants in the U.S. Supreme Court's landmark 1969 student-speech ruling Tinker v. Des Moines Independent Community School District.

This article was originally featured as a media advisory on DWT.com on June 29, 2021. Our editors have chosen to feature this article here for its coinciding subject matter.

Robert Corn-Revere is a partner and John D. Seiver is of counsel in the Washington, D.C. office of Davis Wright Tremaine. Caesar Kalinowski IV is an associate in the Seattle office of Davis Wright Tremaine.