• David Wolfe Bender

@SCOTUS: is Off-Campus Speech on Social Media Protected? Asking for a Friend.


On January 8th, the Supreme Court of the United States granted the appeal of Mahanoy v. B.L., an under-the-radar case on appeal from the Third Circuit that could soon become a landmark First Amendment decision. It's been two months since the Court granted the appeal. Now, there are mere weeks before the petitioners get the chance to make their argument to the Court's nine justices.


Here for the first time? Don't know a lot about this case? Want more details? Read my piece from earlier this year.


A short recap: a student at a public school was suspended from the cheerleading squad because she attached an unseemly caption to a photo posted on Snapchat, a social media platform. The device from which the message was posted was not a school-owned or school-provided device. She made the post while off campus. Is that protected speech under the First Amendment? Can she be suspended from the cheerleading squad?


The student's parents sued the school district on her behalf; they are backed by the American Civil Liberties Union of Pennsylvania. The student's legal team won lawsuits at the district and circuit level. The Supreme Court will soon decide if they believed those rulings were proper.


The question at hand is whether or not the Court should extend the precedent of the 1969 Tinker v. Des Moines decision that ruled in favour of students protesting the Vietnam war. In Tinker, the Court ruled that administrators could only police student speech if it causes a substantial disruption to the school's operation. Mahanoy has First Amendment advocates, school administrators, and students watching intently to see whether or not Tinker's precedent applies to off-campus speech. With just weeks until the Court hears the arguments on April 28th, here are a few takeaways:


The justices have some reading to do

In a case of this magnitude, there are no shortage of stakeholders. Whenever a case involving students is presented, it gets even more attention from outside organizations. Organizations can submit "amicus briefs" to the Supreme Court. These documents are submitted when an organization has a stake in the proceedings and want to give their legal opinion on the issue at hand, even if they are not a named party.


As of March 12th, there are 13 amicus briefs that have been submitted by various organizations in this case. The majority are in support of the school district. But amazingly enough, not a single amicus brief has been submitted in support of the student. Rather, many organizations have submitted amicus briefs in support of neither party.


Why are so many organizations in favour of the school district? Why aren't more organizations siding with the student? Some worry that a ruling in favour of the student could prohibit public school administrators from disciplining offenders for cyberbullying or harassing students off campus. For example, a group of anti-cyberbullying advocacy organizations including the Cyberbulling Research Center and the Committee for Children filed an amicus brief in support of the school district.


"There must be a clear and unmistakable pronouncement that school officials may take reasonable measures to curtail peer bullying that negatively impacts students’ ability to access their education, wherever and in whatever form it takes place," the organizations wrote. "The First Amendment should not immunize them for harassment they perpetrate outside it."


The United States federal government, through the Department of Justice, also filed a brief in favour of the petitioners.


"Nothing in Tinker, for example, suggests that school officials are powerless to discipline students for materially and substantially disruptive speech if they happen to utter it on their way to school, a moment before they set foot on school grounds," the government wrote.


The student is still likely to receive support. Amicus briefs will likely be submitted after the student's legal team submits their brief to the court.


Update (March 31, 2021): Dozens of organizations have filed amicus briefs in support of the student in this case. Notable organizations include the Student Press Law Center, Mary Beth Tinker (one of the students involved in the original Tinker dispute), and the Pacific Legal Foundation.


Where will the Court fall?

Who knows? This Court has notably avoided this specific issue for years, so it's unclear where the nine justices will fall. Keep in mind: the precedent they will be reviewing is more than 50 years old.


Sidenote: It's important to note they won't be overriding precedent in this case, in all likelihood. The Supreme Court's decision is more focused on whether to expand its precedent to the present circumstances or to limit its interpretation. The Third Circuit's decision in this case, limited its interpretation, by saying Tinker v. Des Moines did not apply to off-campus speech. The school district will argue Tinker does apply and that they had the right to police the student's speech. The Supreme Court has limited Tinker's precedent before. In 2007, the Supreme Court ruled in Morse v. Frederick that students could be disciplined for speech that was made at a school-sponsored event off campus (though, the speech still needed to cause a substantial disruption to the operations of the school, per Tinker's precedent).


In Mahanoy, however, the Court couldn't avoid taking the case. As I wrote in January, before the Court said they'd hear the appeal, part of the reason this case looked attractive to the Supreme Court was because of an inconsistency in circuit court decisions. The Third Circuit, in this case, sided with the students. Other appellate courts in the United States, however, such as the Fifth and Ninth Circuits, have not established clear rules for how to view similar Tinker-related cases, the Third Circuit wrote in their opinion last June.


Sidenote: The most prominent example of the Supreme Court sidestepping this issue in the past was in Bell v. Itawamba County School Board, a 2015 case in which a student recorded a profane song regarding two football coaches. The Fifth Circuit eventually decided the song disrupted the school environment, and therefore, the school's discipline was permissible. The student appealed to the Supreme Court, challenging whether Tinker's precedent could extend to off-campus speech. The Court denied the appeal.


The First Amendment is a hot-topic issue on the Supreme Court, and not all First Amendment cases are equal, making it difficult to judge where the justices will fall. Some questions have been raised regarding Justice Amy Coney Barrett's judicial interpretation of the First Amendment. There is little judicial history in her opinions regarding the "free speech" element of the First Amendment, especially in schools. However, her first Supreme Court opinion, released earlier this month, limited the scope of the Freedom of Information Act.


Supreme Court historians use a lot of words and phrases to describe Chief Justice John Roberts. Among them are the phrases "judicial minimalist" and "institutionalist." What does that mean? Bottom line: he doesn't love "big" cases. Roberts prefers to decide issues narrowly. Jonathan H. Adler, a professor at the Case Western Reserve University School of Law, wrote on this subject last year.


"[Roberts] is a conservative justice, but more than anything else, he is a judicial minimalist who seeks to avoid sweeping decisions with disruptive effects," Adler wrote in a piece for the New York Times.


Justice Roberts is very intent on assuring the Court is not a political institution, and consequently, he doesn't want the American public to view it that way (there are studies to suggest he's doing a good job). What does that mean for this case? It's possible he tries to bring the court to a narrow decision (though that's a tall task in a case like this).


As for the other justices, there are clues in previous cases. Four justices who currently sit on the Court heard the aforementioned Morse v. Frederick case in 2007, three of whom sided with the school district (Roberts, as well as Justices Thomas and Alito). Justice Breyer, the most senior justice of the Court's ideologically liberal wing, did not sign onto the majority opinion or the dissent in Morse. Instead, he wrote his own opinion and sidestepped the First Amendment issue altogether.


That said, Morse was a different case. Mahanoy involves speech that was made off campus without any school sponsorship. Will that change the opinions of the four justices who also heard the Morse case? I suppose we'll find out.


So it's unclear. And to make matters confusing, some justices change their entire judicial interpretation of the First Amendment when there's a school involved (see Hazelwood v. Kuhlmeier). To boil it down to two words: it's complicated.


The good news: we won't have to wait long to find out

Being argued on April 28th, Mahanoy will be the second-to-last case argued before the Court in its current term. While there are no argument days scheduled in May or June, the Court will release their opinions throughout those months. It's common for the Court to save their more high-profile opinions until the end of the term, meaning it is likely this case's opinion is released in June. While a two-month wait may seem like a long time to wait for an opinion from the nation's highest court, it really isn't; the Court has waited far longer to release opinions before. For example, the Supreme Court released opinions in three cases earlier this month, two of which were argued in October or November.


The implications of social media

Social media has made this case even more important. With more students posting to social media, speech made off campus and in non-school-sponsored venues is gaining more scrutiny from school administrators. There are ongoing debates in education about how to discipline students who harass or bully their classmates on social media. Without the ability to police content on social media, some educational organizations worry cyberbullying could run rampant and unchecked.


To read more amicus briefs or the documents submitted by the two parties, read SCOTUSblog. For continued updates about this case and more SCOTUS-related news, follow me on Twitter. Oral arguments in this case will be heard on April 28, 2021; further writings on this subject will be posted to this page.