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Legal Principle at Issue

Whether Tinker, which holds 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.

Action

In an 8-1 decision (with Justice Thomas dissenting), while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome the student's interest in free expression in this case.

Facts/Syllabus

Mahanoy Area High School student Brandi Levy failed to make the school’s varsity cheerleading squad. While visiting a local convenience store over the weekend, she posted two images on Snapchat, a social media application for smartphones that allows users to share temporary images with selected friends. Frustrated by her relegation to the junior varsity squad, Brandi — then a ninth-grader — posted “Fuck school fuck softball fuck cheer fuck everything.” When school officials learned of the posts, they suspended Brandi from the junior varsity cheerleading squad for the upcoming year. 

After unsuccessfully seeking to reverse that punishment, she and her parents sought relief in federal court, arguing inter alia that punishing Brandi for her speech violated the First Amendment. The District Court granted an injunction ordering the school to reinstate her to the cheerleading team. Relying on Tinker v. Des Moines Independent Community School District (1969) to grant their subsequent motion for summary judgment, the District Court found that Brandi's punishment violated the First Amendment because her Snapchat posts had not caused "substantial disruption" at the school. The Third Circuit affirmed the judgment, but the panel majority reasoned that Tinker did not apply because schools had no special license to regulate student speech occurring off campus.

In March 2021, ��ݮ��ƵAPP���� filed a coalition amicus brief in the case arguing that the Third Circuit’s ruling draws precisely the right line. While Tinker correctly permits public K-12 schools to regulate on-campus student speech that "substantially" disrupts school operations or invades the rights of others, the Tinker Court was careful to cabin this broad authority to speech within the schoolhouse gates. When students are off-campus and on their own time, Tinker has no traction.

Importance of Case

Levy’s comment, sent via her personal cell phone while off-campus, was directed to her “private circle” of online friends. While there was a risk of “transmission to the school itself,” the Supreme Court held that any “discomfort and unpleasantness” that might have followed within that community is not the “sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify” disciplinary action under the “demanding” standard of Tinker v. Des Moines Independent Community School District, the Supreme Court’s seminal 1969 case outlining the First Amendment rights of public grade school students.

Mahanoy’s analytical framework — identifying three institutional “interests” in regulating speech and “three features” of off-campus speech that merit skepticism of schools’ assertions that their interests are implicated by the speech — provides a strong bulwark against censorship when it comes to the online speech of students at universities and colleges.