AuthorBartucca, Angela

The First Amendment protects an individual's contribution of speech and expression in America's marketplace of ideas. (1) In its seminal case regarding student speech, Tinker v. Des Moines Independent Community School District, the Supreme Court held that students do not shed their constitutional right to freedom of speech at the schoolhouse gate, and that public school officials may only regulate student speech that "materially and substantially interfere[s] with the requirements of appropriate discipline." (2) In Mahanoy Area Sch. Dist. v. B.L., (3) the Supreme Court considered, as an issue of first impression, the constitutionality of school discipline of off-campus student speech. (4) Although the Supreme Court affirmed the Third Circuit's recognition of First Amendment infringement in the discipline of off-campus speech, the Court ruled that public schools have an interest in regulating specific instances of off-campus speech that implicate the school's regulatory authority. (5)

In May 2017, Brandi Levy, a freshman student at Mahanoy Area High School in Mahanoy City, Pennsylvania, tried out for the school's varsity cheerleading team. (6) After she was rejected from the varsity cheerleading team, Levy begrudgingly accepted an offer to join the junior varsity cheerleading team. (7) The following weekend, while visiting a local convenience store, Levy used her personal smartphone to broadcast two photos to her Snapchat followers for a period of twenty-four hours. (8) The first photo displayed Levy raising her middle finger with the caption, "Fuck school fuck softball fuck cheer fuck everything." (9) Levy's cheerleading coaches became aware of her posts after several of Levy's Snapchat friends distributed screenshots of these posts. (10) After determining that the profanity used in the posts violated team and school rules, the coaches suspended Levy from the junior varsity cheerleading team for the upcoming year. (11)

When the school refused to reverse the suspension, Levy and her parents sought relief in the United States District Court for the Middle District of Pennsylvania, arguing that such punishment violated Levy's First Amendment right to freedom of speech. (12) The district court granted a temporary restraining order and a preliminary injunction ordering the school to reinstate Levy to the cheerleading team. (13) In a subsequent decision, the district court granted Levy's motion for summary judgment, finding that Levy's punishment violated the First Amendment. (14) The school district later appealed, arguing that Levy was appropriately disciplined given the standard applied in Tinker v. Des Moines Independent Community School District. (15) The Court of Appeals for the Third Circuit affirmed the district court's decision, holding that the school district's actions could not be justified using the Tinker standard because Tinker does not apply to off-campus speech. (16) After accepting the school district's petition for certiorari, the Supreme Court affirmed the Third Circuit's holding as to the violation of Levy's First Amendment rights, but noted that the First Amendment does not entirely prohibit regulation of off-campus speech. (17)

The right to express opinions without government interference is a democratic ideal that dates back to ancient Greece. (18) The Framers codified this ideal when drafting the First Amendment as part of the Bill of Rights, providing constitutional protection for speech and expression. (19) While the bounds of First Amendment have evolved over time, the Supreme Court has always recognized that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." (20) In Tinker v. Des Moines Independent School District, the Supreme Court set the standard for free speech in one area of ambiguity--public schools. (21) For the first time, the Supreme Court recognized that public school students do not "shed their constitutional rights to free speech at the schoolhouse gate." (22) Despite this recognition, the Court noted that school officials' restriction of speech is justified when (1) actual disturbances on school premises in fact occur, or (2) substantial disruption or material interference with school activities are reasonably foreseeable by school officials. (23)

In the decades following Tinker, the Supreme Court has carved out broad exceptions to shield school officials from First Amendment violations when regulating on-campus speech. (24) These exceptions include the regulation of speech (1) during extracurricular activities, (2) involving the use of school-sponsored forums, and (3) reasonably believed to be in the promotion of illegal drug use. (25) However, the Court had not explicitly applied Tinker to off-campus speech, creating a circuit split as to the correct approach for determining the school's authority in regulating off-campus student speech. (26) The Second Circuit has justified the regulation of off-campus speech when such speech creates a foreseeable risk of substantial disruption within the school environment. (27) The Fourth Circuit also addressed the issue, holding that where the "nexus" of off-campus speech is "sufficiently strong" to the school's teaching interests, school officials are permitted to take disciplinary action. (28) The Ninth Circuit combines the approaches of the Second and Fourth Circuits, permitting regulation of off-campus speech when it is "reasonably foreseeable the speech will reach the school community," and such regulation has a "sufficient nexus" to the school's pedagogical interests. (29)

In contrast, the Third Circuit maintains that off-campus speech is protected speech not subject to school regulation. (30) The Third Circuit has also held that a public school's authority to regulate disruptive speech under Tinker only applies when substantial disruption is reasonably foreseeable. (31) The Fifth Circuit has similarly held that school officials cannot infringe on students' constitutional rights where the exercise of such rights does not "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." (32) Such sharp conflict among the circuits suggested a need for the Supreme Court to provide clarity to both students and school officials in the regulation of off-campus speech. (33)

In Mahanoy Area Sch. Dist. v. B.L., the Supreme Court affirmed the Third Circuit's ruling that the school district's disciplinary action violated the First Amendment. (34) The Court acknowledged that, under Tinker, students do not "shed their constitutional rights to freedom of speech or expression" upon entering the schoolhouse gate. (35) While school officials' authority is heightened when regulating speech that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others," the Court found no evidence of such "substantial disruption" of a school activity nor a threatened harm to the rights of others. (36) Instead, the Court emphasized that the strength of the school's anti-vulgarity interest and apprehension of disturbance was substantially weakened because Levy transmitted speech outside of the school's location and hours, and the speech neither identified the school nor targeted members of its community. (37) Thus, the Court reasoned that the school's regulatory interests in disciplining Levy were insufficient to overcome her First Amendment rights, holding that a school's regulatory interests are lessened when a student engages in off-campus social media speech. (38)

In justifying its decision, the Court identified three features of off-campus speech that dictate a regulatory limitation on school officials. (39) First, a student's off-campus speech likely falls under the responsibility of the student's parents, as school officials are not acting in loco parentis. (40) The Court then noted that Levy spoke in circumstances where her parents had the responsibility in deciding whether to discipline her off-campus speech. (41) Second, courts must be particularly skeptical of school efforts to restrict off-campus speech to avoid covering all speech that a student engages in throughout the day. (42) Lastly, schools have a special interest in protecting a student's unpopular expressions, especially when off-campus, to maintain their role as "nurser[ies] of democracy." (43) Although the Court did not go as far as the Third Circuit in ruling that school officials have no regulatory interest in off-campus student speech, it recognized that certain features of off-campus speech limit the school's regulatory authority, and the school district's cited interests in punishing Levy's speech were insufficient to overcome her First Amendment rights. (44)

Despite the division among circuit courts surrounding the application of the Tinker standard to off-campus student speech, the Court properly held that the school district's disciplinary action against Levy violated her First Amendment rights. (45) While public schools may...

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