In Mahoney Area School District v. B.L., published June 23, 2021, the U.S. Supreme Court, ruling 8-1, affirmed a circuit court decision that the defendant school district's discipline of the plaintiff violated the First Amendment. The plaintiff was denied a position on her high school's varsity cheerleading squad and the right fielder position on a private softball team. While off-campus, the plaintiff posted on Snapchat (a social media app that allows users to post photos to friends that disappear after a set period) a photo with her and a friend posing with middle fingers extended. The caption read: "F__ school f___ softball f___ cheer f___ everything." She also posted a blank image with a caption complaining about the cheerleading situation. A friend took a picture of the post and shared it with other members of the cheerleading squad. The photos eventually came to the attention of cheerleading coaches. The coaches and the principal concluded that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules. The coaches suspended the plaintiff from the junior varsity cheerleading squad for the upcoming year. The plaintiff sued the district, contending that the discipline violated her First Amendment rights. The district court found in the plaintiff's favor, and the circuit court affirmed.
The Supreme Court majority ruled that the conduct was protected by the First Amendment. Past Supreme Court cases have outlined the protection for student speech on campus. The special characteristics that give schools additional license to regulate student speech do not always disappear when a school regulates off-campus speech. The court declined to set forth a broad First Amendment rule stating what counts as "off campus" speech, or whether or how First Amendment standards must give way off campus to a school's special need to prevent substantial disruption of learning-related activities or protection of the school community. But three features of off-campus speech often distinguish schools' efforts to regulate that speech from on-campus speech: the school will rarely stand in loco parentis in relation to off-campus speech; regulation of off-campus and on-campus speech would mean regulation 24 hours a day (so schools must meet a heavy burden when regulating off-campus religious or political speech); and the school has an interest in protecting a student's unpopular expression, especially off-campus, so that future generations understand the "marketplace of ideas." These features of off-campus speech diminish the leeway the First Amendment grants to schools in light of their special characteristics. Here, the plaintiff's speech did not involve features that would put it outside First Amendment protections. The posts did not amount to fighting words, and while crude, they were not obscene. If an adult spoke such words, she would receive strong First Amendment protection. The student posted off-campus, during non-school hours, did not identify the school, and did not target any member of the school committee. The means of posting diminished the school's interests in regulation. There was no record that the posts had the sort of substantial disruption of school activity, or threatened harm rights of others, that might justify the school's actions.
Justice Thomas dissented. He opined that precedent supported the coaches' actions in disciplining off-campus speech.
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