Supreme Court to Hear Significant Student Free Speech Case

In 1969 in Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court held that school officials may discipline students who engage in speech that would materially and substantially disrupt the work and discipline of the school. In Mahanoy Area School District v. B.L., the Supreme Court will decide whether Tinker applies to student speech that occurs off campus.

This case is of interest to the states because all states require school districts to adopt policies preventing bullying. Over ten states allow school district to discipline students for bullying that occurs off campus.  

B.L. failed to make her high school’s varsity cheerleading team. Over the weekend, away from school, she posted a picture of herself and a friend with their middle fingers raised and the caption “fuck school fuck softball fuck cheer fuck everything” on Snapchat. She was suspended from the junior varsity cheerleading team for the year and sued the school district claiming it violated her First Amendment free speech rights.

The Third Circuit held Tinker doesn’t apply to off-campus speech, meaning the school district had no authority to discipline B.L.

First, the Third Circuit concluded that the B.L.’s speech occurred off campus. “B.L. created the snap away from campus, over the weekend, and without school resources, and she shared it on a social media platform unaffiliated with the school.”

The Third Circuit refused to extend the holding of Tinker to off-campus speech because theFirst Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large.” According to the Third Circuit, its rule is “true to the spirit of Tinker, respects students’ rights, and provides much-needed clarity to students and officials alike.” The Third Circuit reasoned that “[f]rom the outset, Tinker has been a narrow accommodation.” “Tinker’s focus on disruption makes sense when a student stands in the school context, amid the ‘captive audience’ of his peers.  But it makes little sense where the student stands outside that context, given that any effect on the school environment will depend on others’ choices and reactions.”