The United States Supreme Court has returned to the treacherous arena of student speech for the first time in nearly 15 years after hearing oral arguments in Mahanoy Region School District v. BL April 28. Based on the judges’ comments, a restrictive decision seems likely.

Mahanoy involves a public high school student in Pennsylvania who took to Snapchat to express his frustration at not being named to the varsity cheerleading team. She did her post off campus on a Saturday, and without school resources. School coaches suspended her from the junior college cheerleading team, claiming the position violated team rules. The student continued.

A federal district court found that the school district‘s disciplinary action violated the student’s First Amendment rights by punishing her for speech that did not cause any actual or foreseeable disruption to the school environment. The Third Circuit asserted, claiming that “the ‘online’ nature of this off-campus discourse makes no constitutional difference.” In January, the Supreme Court allowed the school district’s petition for review.

California Students’ Free Speech Record Retrieved

Last year, we had the privilege of representing a student in a similar case involving similar speech – in particular, a parody video of James Bond posted to YouTube that our client and a group of his friends created off campus, during non-school hours, and without school resources. Our client, Nathaniel Yu, was told by a classmate that some people might find the parody “offensive”.

Yu, then president of the junior class at San Ramon Valley High School in Danville, Calif., Ordered the student who posted the parody to remove it from the social media site. The parody had around 30 views at the time of withdrawal.

School officials punished Yu for this off-campus speech by stripping him of his post as student government and disqualifying him from his post as president-elect of the school’s associate student body during his senior year. Last year, our team achieved the largest known recovery in a student free speech case in US history.

No previous Supreme Court decision fits perfectly with the speech in question. Our team therefore relied heavily on the decision of the district court. Mahanoy when we opposed the District Defendants’ motion to dismiss. U.S. District Judge Maxine M. Chesney dismissed the petition, dismissing the argument that the parody was a school-sponsored speech.

The third circuit went further in Mahanoy, asserting that speech “outside of school-owned, operated or supervised channels and which is not reasonably interpreted as carrying the imprimatur of the school”, cannot be regulated as student speech.

Off-campus free speech rights in the digital age

During the pleadings in Mahanoy, the judges struggled with this primary threshold problem: whether public school officials can regulate a student’s publication on private social networks, made off campus, after school hours and without school resources. Framed in another way, do the practical realities of Internet speech justify a new authority for school officials to regulate speech made well beyond the school gate?

In Mahanoy, the Supreme Court has the opportunity to clarify the scope of off-campus free speech rights for students in the digital age. Neither students nor educators benefit from being left behind. A new standard adapted to the realities of speech in the modern era is therefore needed to ensure that public school officials and students can intelligently assess the types of speech subject to school regulation.

In oral argument, however, Judge Stephen Breyer said he was “scared to death to write a standard.” This comment and others suggest that the court is keenly aware of the implications of its upcoming ruling.

It therefore seems doubtful that the court would draft a general rule immunizing all off-campus Internet speech. But the court’s decision in Mahanoy can shed light on how it will apply First Amendment principles to online discourse in general – an issue that has been the subject of intense public and judicial debate in recent years. Will the court work to set a new standard for online speech? Or will he continue ad hoc adaptations of the existing precedent?

A few weeks earlier, in Biden v. Knight First Amendment Inst. at Columbia Univ.Justice Clarence Thomas said Twitter’s ability to moderate speech on its platform raises “interesting and important questions” about the First Amendment. At this point, First Amendment case law has long involved a spatial aspect.

Public parks, for example, are seen as “public forums” where freedom of expression is at its peak. But a purely geographic framework has become somewhat unwieldy where online platforms have blurred or outright removed traditional geographic boundaries.

Mahanoy, and similar cases, provide concrete examples: administrators are moving beyond the physical campus to regulate online speech. Online discourse has become ubiquitous, and social media is one of the favorite channels for activism. Where the court draws the line Mahanoy will have profound consequences for public school officials and students.

A decision in favor of the district could gut traditional principles that limit the reach of school officials, and students could be penalized for objectionable expressive conduct that occurs anywhere, anytime.

Conversely, a sweeping move in favor of students could significantly hamper the ability of teachers to cope with the modern reality that off-campus student discourse on the Internet may well reach campus, often simultaneously.

the Mahanoy the decision is expected in June. While the decision is not sweeping, it will be closely scrutinized for its implications for free speech and social media.

This column does not necessarily reflect the opinion of the Office of National Affairs, Inc. or its owners.

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Author Info

James carlos mcfall is a partner and trial attorney in the Dallas office of Jackson Walker LLP and focuses on the First Amendment, sports, entertainment and commercial litigation.

Eric wong and Lauren Ceckowski are litigation partners at Jackson Walker LLP.

Last year, McFall and Wong achieved the largest known recovery in a student speech case in US history in Yu v. San Ramon ISD.