From Snapchat to the Supreme Court

Thomas A. Berry

Yesterday the Supreme Court heard arguments in the case Mahanoy Area School District v. B.L. The case arose when B.L., a high school sophomore at a Pennsylvania public school, didn’t make the varsity cheerleading team. She took to Snapchat to voice her frustrations and posted a picture of herself and a friend holding up their middle fingers, captioning it with some F‐​bombs. When the picture was brought to the attention of her cheer coaches, B.L. was suspended from the junior varsity cheerleading team for the year.

B.L. sued the school district for violating her First Amendment rights, arguing that the school could not punish her for off‐​campus speech that did not occur in a school‐​sponsored forum or bear any mark of approval or endorsement by the school. Both the district court and the Third Circuit ruled in B.L.’s favor. The school district appealed to the Supreme Court, which granted review.

As framed by the school district in its petition to the Court, the question presented in this case is whether Tinker v. Des Moines (1969), which held that public school officials may regulate speech that would “materially and substantially disrupt the work and discipline of the school,” applies to student speech that occurs off campus. But it’s clear after yesterday’s argument that even the school district does not truly believe the answer to that question is “yes.”

In arguing for an extension of Tinker to off‐​campus speech, the school district painted a rosy and limited view of public schools’ Tinker authority to discipline students. The school claimed that the authority to discipline speech risking a “substantial disruption” does not reach political speech, that it does not allow a “heckler’s veto,” and that it only applies when students use “terrorizing” language.

But unfortunately, that is not how Tinker has actually been applied in practice. As Justice Kagan pointed out, the school district’s arguments depended on “a version of Tinker that the lower courts really have not adopted.” Extending Tinker to every moment of students’ lives outside school would be dangerous because fears of causing offense have far too often allowed school administrators to curtail in‐​school speech on matters of public concern. As noted in Cato’s brief, one school even banned shirts with the American flag.

Fortunately, the Court showed little appetite to extend Tinker’s broad “substantial disruption” standard to speech outside the school environment. Although the school district stressed repeatedly during the argument that limiting Tinker would create line‐​drawing problems in distinguishing speech inside and outside the school environments, courts already draw precisely that line in applying other school speech doctrines. As the Supreme Court has noted in a previous case, the broader authority of schools to punish students for (even non‐​disruptive) profanity does not apply “outside the school context.”

Given that not even the school district was able to offer a full‐​throated defense of the Tinker standard as it has been applied in practice, the Court should decline to extend that standard even further. For more background on the case, see Cato’s case page here. A decision in the case is expected by the end of June.