On The Internet, There Are No Schoolhouse Gates

Brandi Levy’s snapchat teed up an issue that needed to be resolved. It was after school hours. It was outside of school. It was on the internet. But it related to school, and a screen cap of her speech was shown to a coach and she was punished for it.

The case concerned Brandi Levy, a Pennsylvania high school student who had expressed her dismay over not making the varsity cheerleading squad by sending a colorful Snapchat message to about 250 people.

She sent the message on a Saturday from the Cocoa Hut, a convenience store popular with teenagers. It included an image of Ms. Levy and a friend with their middle fingers raised, along with a string of words expressing the same sentiment. Using a swear word four times, Ms. Levy objected to “school,” “softball,” “cheer” and “everything.”

While the actual language might be too vulgar for the likes of the New York Times, it wasn’t for Justice Stephen Breyer, writing for the 8-1 majority in Mahanoy Area School v. Levy.

The first image B. L. posted showed B. L. and a friend with middle fingers raised; it bore the caption: “Fuck school fuck softball fuck cheer fuck everything.”

After Tinker v. Des Moines established that students’ right to speech doesn’t end at the schoolhouse gate, the rule was that it was only subject to regulation if it caused substantial disruption to the educational function of a school. But there was no internet then. No social media. Speech outside of school generally stayed outside of school in the old days, but student speech on social media was everywhere. Where the line was drawn, if a line was drawn, had monumental implications for student speech.

After hours, off school grounds, wouldn’t change the impact of speech on the school community, the student population. The old lines blurred and presented the potential that schools could “police” students on social media as speech would find its way into the schoolhouse. The Supreme Court, thankfully, refused to give schools such ubiquitous control, establishing a three considerations for when schools could regulate off-campus speech.

First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco parentis treats school administrators as standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.

Second, from 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.

Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, “I disapprove of what you say, but I will defend to the death your right to say it.” (Although this quote is often attributed to Voltaire, it was likely coined by an English writer, Evelyn Beatrice Hall.)

These considerations, while short of a categorical rule as the Third Circuit held, suggest that student internet speech will rarely be subject to school regulation, and the schools will have a very high burden to show that justification for disciplining students for speech on social media. However, what the Supreme Court gave with one hand, it took away with the other.

Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus. The school’s regulatory interests remain significant in some off-campus circumstances. The parties’ briefs, and those of amici, list several types of off-campus behavior that may call for school regulation.

It’s certainly understandable that the school district and its friends argued against a clear categorical rule so they maintained some level of control over student speech on the internet. What’s curious is that Levy, represented by the ACLU*, agreed that there were greater concerns than free speech. What would they be?

These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.

The same emotion-laden vagaries, bullying or harassment, mostly defined by the harm claimed by those who purport to be victims and are subject to constant challenge, provide schools with a huge exception with which to regulate a wide berth of speech. This is particularly troubling at a time when extremely sensitive people claim any criticism to be bullying or harassment. Given the nature of social media and the ease with which students are traumatized, this may well prove to be the exception that swallows the rule and launches a thousand expulsions and lawsuits.

in Tinker, the Court held that students’ free speech doesn’t end at the schoolhouse gates. In Mahanoy, the Court held that schools’ regulatory authority doesn’t end at the schoolhouse gates either if someone’s feelings are hurt on social media. The holding is a win for free speech, but how much of a win remains to be seen.

*Levy was represented by the ACLU, which not only immediately used the case to burnish its First Amendment cred even though it does nothing to counter the fact that it only defends free speech when that speech doesn’t conflict with its more valued social justice agenda, but to sell t-shirts and profit off the case.

8 thoughts on “On The Internet, There Are No Schoolhouse Gates

  1. Skink

    A couple of strangely mumbled opinions. The majority seems to have written the opinion before figuring the path–Is it location or content and where are the boundaries? This one was easy: it’s protected speech that didn’t have the likely result of significantly affecting orderly operation of the school. It’s no more than “my team fucking sucks.” It’s even less. The portion you quote is especially weirdifying. As the concurrence points out, those categories of speech are likely crimes and outside protection. If the majority was trying to clarify how the 3rd wandered the wrong path, this effort sure wasn’t helpful.

    The concurrence begins:
    “I join the opinion of the Court but write separately to explain my understanding of the Court’s decision and the framework within which I think cases like this should be analyzed.”

    But Alito doesn’t do as promised. He instead engages a Dickens-like tour of history. The opening act, as always, sets the stage: “I start with this threshold question: Why does the First Amendment ever allow the free-speech rights of public school students to be restricted to a greater extent than the rights of other juveniles who do not attend a public school?” To answer, he notes that if this student was enrolled in a private school, then the school district would not punish her. Then he asks why the district has greater power to punish her when she’s in pubiic school. This leads to his discussion of how schools work and their authority to prohibit speech.

    No, Sam–they couldn’t punish her if enrolled in a private school because it wouldn’t be their school. But you at least get the idea that this is protected speech because it didn’t meaningfully affect school business.

    This isn’t a hard case, but when a hard case follows, this won’t be helpful.

    1. SHG Post author

      The concurrence in the Third made the point that this failed the “substantial disruption” test and that should have been the end of it. A modest holding, same result. But since the majority created a categorical rule, it forced the Supreme’s hands. The big issue was what they would do with Tinker in the age of social media, which obviates the location part since the internet is everywhere and leaves us with content, which as Breyer rightly concluded, gave rise to an all-or-nothing problem. So they tried to thread the needle and gave us this half-baked dreck, which will keep lawyers in business for decades to come.

  2. B. McLeod

    Yup, they threw a bone to the “hate speech” crowd, and if schools can regulate “bullying” speech, every other political subdivision can as well. The can of worms is officially open. I need to buy some stock in hat and pole companies.

    1. SHG Post author

      At least they included the limit of “targeted” speech, or there would be no question but that the “hate speech” exception would swallow the rule.

  3. Jeffrey M Gamso

    “While the actual language might be too vulgar for the likes of the New York Times, it wasn’t for Justice Stephen Breyer.”

    Yeah. On the other hand, C****** T***** in dissent (who apparently believes that one must not spell out words that might cause offense) proved himself more delicate,
    The message included a picture of B. L. raising her middle finger and captioned “F***
    school” and “f*** cheer.”
    Of course, had that been what she actually wrote, the school may have left her alone.

    1. SHG Post author

      I don’t blame T***** for choosing not to spell out “fuck,” if that goes a hair’s breadth beyond his comfort zone. To each his own.

  4. Skink

    But they didn’t. It’s easy:

    Skink, J. delivered the opinion of the Court.

    Regulation of speech by school districts is in two forms. If the student is physically present, attending classes through the Internet or participating in extra-curricular activities by the Internet, the Internet being necessary to those activities, schools may proscribe certain speech as part of its in loco parentis position and as previously explained by the Court.

    If the student’s activity occurs off campus or without the direct and necessary use of the Internet, the district may not proscribe speech except on a showing the speech is highly likely to impede the function of learnin’.

    There should probably be more words, but not 2,000 more.

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