The question before the Supreme Court on Apr. 28 was this: does the First Amendment prohibit public school officials from regulating off-campus student speech? 

In spring of 2017, then-high school freshman and Junior Varsity cheerleader Brandi Levy—identified only as B.L. in all court filings—learned she had once again failed to make the Varsity cheerleading squad. Over the weekend, Levy took to Snapchat to express her displeasure with “school,” “softball,” “cheer,” and “everything,” prefacing each with a four-letter expletive. 

One of the Snap’s 250 recipients, a fellow cheerleader, took a screenshot of the message and showed her mother, a coach. Levy was suspended from the cheerleading team for one year. After the school board refused to lift the suspension, her parents sued Mahanoy Area High School in federal court.

Represented by her parents and the American Civil Liberties Union (ACLU), Levy won at both the district and appellate levels. Mahanoy Area School District petitioned the Supreme Court, and it agreed to take the case in January.

The precedent now under review predates social media by a few decades. In Tinker v Des Moines Independent Community School District (1969), the Court ruled that students and teachers did not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” School officials could not censor student speech absent evidence it would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” 

In Levy’s case, the Third Circuit Court of Appeals held that Tinker did not apply to off-campus speech, which Judge Cheryl Ann Krause, writing for the panel, defined as “speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.” This created a circuit split: the Fifth Circuit, in Bell v Itawamba County School Board (5th Cir. 2015), had held that Tinker did apply to off-campus speech. 

The rise of online communications and ubiquity of social media use among students have blurred the boundaries of the schoolyard considerably. This seemed to be a central concern for the nine justices during oral arguments, who appeared skeptical of arguments by both lawyer Lisa Blatt and lawyer David Cole of the ACLU, representing the school district and Levy, respectively. 

The school district contended Tinker should apply to on- and off-campus speech because speech made on social media, which lacks physical boundaries, can also be disruptive. 

“When it comes to the Internet, things like time and geography are meaningless,” Ms. Blatt said, “and it makes absolutely no sense whatsoever to say the same speech is somehow within the school’s regulation if it’s one foot on campus or one foot off campus.”

Though the school district would have Tinker apply off-campus “only when the student targeted the school audience and a school topic,” the justices raised concerns about distinguishing between merely offensive as opposed to attacking speech, with Chief Justice John Roberts and Justice Sonia Sotomayor observing students’ conversations revolve largely around school and take place between classmates. 

Similarly, the justices seemed wary of drawing a bright line between on-campus and off-campus speech in light of online communication. Mr. Cole’s definition of disciplinable student speech as depending on whether “the school exercise[s] supervision over the speaker” appeared to have precluded too much speech from the school’s reach.

“How would you locate conduct in school versus out of school,” asked Justice Clarence Thomas, “if a message can be sent over the weekend but still be used in class?”

Justice Elena Kagan also questioned why schools should not be able to deal with off-campus speech which causes “fundamental problems” in school, noting schools have greater latitude than the government over issues arising from students’ speech.

Whether this case will lead the Court to define new boundaries for protections of student speech is still unclear, as B.L.’s message may have not been disruptive enough under Tinker to warrant school action. 

“Did that cause a material and substantial disruption? I don’t see much evidence it did,” said Justice Breyer.

Junior justice Amy Coney Barret further pointed out the First Amendment does not prohibit soft punishment, suggesting Levy could have received a warning instead of being suspended. 

Justice Samuel Alito laid out two possible paths the Court may take. If the Court addresses the broader issues in Levy’s case, he said, it should establish “clear rules” protecting freedom of speech. However, if the Court does not wish to address the broader issues at this time, it could simply reiterate Tinker applies in school without touching on the school’s ability to regulate students’ off-campus speech.

In any case, Justice Brett Kavanaugh seemed to speak on behalf of the other justices when he said the Court should not be writing a “treatise.” Instead, he proposed an alternative narrow ruling: that the First Amendment does not categorically prohibit schools from disciplining students for their off-campus speech. 

The Court’s opinion should be published in the summer.

Photo has been removed due to copyright infringement.