One of the last times I contributed to the ALA’s intellectual freedom blog, I made the point that employers have a great deal of power over how employees express themselves, both at work and on personal time. The piece was my effort at a response to all of those expressions of outrage I see on my Facebook feed from people who have the idea that “cancel culture” is either a new phenomenon or one which is a First Amendment issue, neither of which is true, strictly speaking. In fact, the source of much of the information I used for that piece was published in 1993 and made clear that even back before social media was a gleam in the eye of Mark Zuckerberg or any of his fellow nerds, employees in both the public and private sectors needed to know what the limits of expression were, if they valued their jobs.

Recently, a case pertaining to “off-the-clock” speech came before the United States Supreme Court, this time having to do with what the limits of expression are for enrolled students who use social media to criticize what their schools’ teachers or administrators might be doing. In this case, the Court decided in favor of the student “B.L.,” a 14-year-old Pennsylvanian who had taken to Snapchat with both four-letter f-words and related photographed gestures to make clear that she disapproved of her cheerleading coach’s decision not to move her up to the varsity cheer squad. The post did not make specific reference to any individual or school and the context would only have been understood by those in B.L.’s approved audience. Despite that, and though the post was composed and “Snapchatted” from a convenience store and not during school hours, B.L. ‘s coach subsequently suspended her from the squad for the coming school year, arguing that the post was “disruptive” to the functioning of the school. At the time the decision was made, the coach cited B.L.’s use of the sort of swear words forbidden on campus as a factor. When B.L. and her parents appealed the decision, it was upheld by the athletic director, principal, school superintendent and officials with the Mahanoy Area School District. In response, B.L.’s parents sued the district.

When the case went to court on First Amendment grounds, the Third Circuit Court of Appeals, citing Tinker v. Des Moines Independent Community School District (1969), found that the student’s rights had indeed been violated, and the US Supreme Court agreed 8-1 with the plaintiff when the appeal reached that level. The reason that this may be a landmark case is not because of that outcome itself, which is not terribly remarkable given the facts, but because it brings up (and leaves unresolved) many related First Amendment questions, some of which were asked during the argument phase.

1.   Are the courts being consistent on the question of “substantial disruption” when it comes to online speech? –The Tinker decision was about school administrators having to demonstrate that student speech is causing—or predictably could cause—“substantial disruption” to the “learning environment” to discipline the student for the speech.  In the Mahanoy case, the student was not on campus and the speech was posted on social media. When the lower court ruled, they cited Tinker’s “disruption clause,” opining that the Snapchat post had not been disruptive enough to be “substantial” and thus the suspension was excessive and a violation of B.L.’s rights. Despite that, the majority opinion of the lower court questioned whether Tinker was applicable at all, as B.L. was off-campus when she created the post. This line of reasoning seems to be precisely at odds with the 2015 Bell v. Itawamba School Board decision, in which the US Fifth Circuit Court of Appeals upheld as Constitutional the suspension and school reassignment of a student who, on his own time and off-campus, made a rap video in which he criticized his high school’s football coaches for inappropriately ogling female African American students, using violent language his attorneys argued were the sort of artistic license that is part of “rap culture.” 

2.  How much discretion do schools have to decide what kinds of off-campus speech are a “material disruption” and which are not? –In an era of concern over possible real harm done by “cyberbullying,” what does this decision mean for those school districts that have policies against such behavior, even if the bullying exchanges or messages are composed and sent on platforms not controlled by the school and on the non-school time of bullies or victims? Could the decision turn insulting messages about schoolmates into protected speech, provided the messages are composed on a Saturday afternoon in a student’s bedroom? The Supreme Court opinion specifically mentions the keeping of a civil and safe learning environment as being a reason that schools have an interest in monitoring students’ off-campus speech, particularly in cases of “severe bullying or harassment targeting particular individuals,” but it doesn’t take much to envision ways a clever student “troll” could cause disruptions or, at least, public relations problems for a school without ever venturing into communication directed at anyone in particular. 

3.    Just how far afield must a student be to be “off campus”?–Justice Clarence Thomas, in his dissenting opinion, asks an important and as-yet unanswered question: with students communicating via Internet-accessing devices carried in their pockets, is social media speech that is created off-campus but received by or directed at those on campus really off-campus speech? If it is—as the Court’s logic in this case seems to imply—how do schools have the power, under the Constitution, to police students’ social media speech?

The Court, in response to calls to create a “bright line” to help distinguish between disruptive and non-disruptive or on-campus and off-campus speech, has balked. “I’m frightened to death of writing a standard,” was how Justice Stephen Breyer put it. In the published opinion, the Court writes: 

“[W]e do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community…”

“[F]rom the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.”

That last point is heavy with implication, when taken in context. During arguments, Justice Samuel Alito asked hypothetically whether schools that specifically define “misgendering” a transgender student as bullying behavior would be able to discipline a student for doing so on social media away from the school grounds. The opinion’s text would hint that courts would need to be circumspect about allowing schools to discipline students for off-campus social media posts that offend the sensibilities of a “school community” or are perceived as harmful by some subset thereof if they are reflections of a student’s political or religious viewpoint. In other words, the opinion seems to be carefully “cancel proofing” students whose shared opinions offend someone who might then try to recruit school administrators to weaponize a school’s social media usage or related anti-bullying policy to shut fellow students down.

Regardless of the outcome of this case or related cases sure to come, one thing is clear and has been for some time: regulating student speech, online or not, is a difficult issue for the courts and will only get more complicated as technology evolves, with outcomes that are thus far unsatisfying, in the minds of many. With some school districts going beyond giving just Internet-accessing devices to students and letting families take hotspots home to provide the Internet access itself and with some states eyeing creating departments to ensure the “digital divide” is bridged, there will certainly arise more First Amendment issues through which the courts will have to repeatedly wade.