The U.S. Supreme Court has long recognized that public K-12 students may be punished for some forms of expression on campus or at school activities—like vulgar language—that would be protected free speech under the First Amendment if it took place away from school. But the line between on- and off-campus speech isn’t that clear anymore. That’s mostly because of how students use social media and mobile devices to share their opinions, spread news, and sometimes to bully their classmates.
In 2021, the U.S. Supreme Court directly addressed the issue of off-campus speech for the first time. In a case involving a high school cheerleader’s curse-filled social media rant expressing her frustration about not being picked for her school’s varsity cheerleading squad, the High Court made it clear that there are some circumstances when public schools may limit or punish students’ off-campus speech—but this case didn’t involve those circumstances. (Mahanoy Area School Dist. v. B.L., U.S. Sup. Ct. No. 20-255 (2021).)
Off-Campus Speech That’s Not Protected Under the First Amendment
Over the years, the Supreme Court has held that public schools have special interests and responsibilities that give them some leeway to regulate students’ speech that happens under the schools’ supervision. In Mahanoy, the majority justices concluded that those special interests don’t always disappear when the speech takes place off campus.
For example, the justices noted that a school may have an interest in controlling students’ off-campus speech that involves:
- serious or severe bullying or harassment targeting particular individuals
- threats aimed at teachers or students
- breaking rules about schoolwork, use of school computers, or participation in online school activities; or
- breaches of the school’s security devices.
Why a Cheerleader’s Crude Post Was Protected Free Speech
In the case of the high school cheerleader, the Supreme Court pointed out many aspects of her social media post that “diminished” the school’s special interests in controlling or punishing how she expressed her criticism. She had used her own phone to post her rant outside of school hours from an off-campus location, and it was sent only to her circle of Snapchat “friends.” Moreover, she hadn’t identified the school or targeted any individuals. (The post was simply a picture of her and a friend with their middle fingers raised, along with a caption that applied a common expletive to “school … softball … cheer … everything.”)
Finally, using the standard that the Supreme Court had established more than 50 years ago for on-campus speech (in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)), the justices found no evidence that the cheerleader’s post had caused the kind of “substantial disruption” of school activity or harm to the rights of others that would justify the school’s action in punishing her. Given all that, the Mahanoy court held that the school had violated the student’s First Amendment rights.
Bullying and Threatening Online Speech
The Mahanoy justices specifically chose not to create a “broad, highly general rule” spelling out exactly what counts as off-campus speech by students and exactly when public schools are allowed to limit that speech. Before this Supreme Court ruling, however, several lower courts applied the Tinker standard to find that administrators can punish students for online communications that are:
- closely linked to school (known as a “nexus”) and/or likely to reach the campus community, and
- expected to disrupt school work or discipline.
For example, both those requirements were met when students:
- created a social media page meant to get fellow students to harass a classmate (Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011))
- sent classmates instant messages full of violent language about shooting other students at school (Wynar v. Douglas County School Dist., 728 F.3d 1062 (9th Cir. 2013))
- wrote a blog with racist and sexually explicit, degrading comments about classmates that upset many students and disrupted classes (J.W. v. Lee’s Summit R-7 School Dist., 696 F.3d 771 (8th Cir. 2012)), and
- posted an online video of a rap recording about two school coaches that was intended to reach fellow students and intimidated the coaches with threatening, violent language (Bell v. Itawamba County School Bd., 799 F.3d 379 (5th Cir. 2015)).
It’s worth pointing out that all of these examples would likely fit within the categories of bullying or threatening off-campus speech by public school students that the Mahanoy court placed outside of First Amendment protection.
What About Off-Line, Off-Campus Speech?
Using the reasoning from court decisions allowing schools punish students for some online speech, at least one federal appellate court found that administrators didn’t violate a seventh-grader’s First Amendment rights by disciplining him for sexually harassing two younger students on a path right outside school grounds. The harassment happened over several days while all of the children were leaving school, just minutes after classes ended. Not only that, administrators could expect that the effects of the harassment would carry over to school itself, making the victims feel unsafe on campus. (C.R. v. Eugene School Dist. 4J, 835 F.3d 1142 (9th Cir. 2017).)
When Students Are Disciplined for Off-Campus Speech
If school administrators are threatening your child with punishment for a social media post, texts, or other forms of off-campus speech, it might be a good idea to speak with an education lawyer who can help protect your child's rights in school discipline proceedings. And if you believe the school is violating students' First Amendment rights through its policies regarding online speech, you may consider contacting a civil rights attorney to learn about your legal options.