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The U.S. Supreme Court case Mahanoy Area School District v. B.L. was framed as a major test of the social media free-speech rights of K-12 public school students and the regulation of cyberbullies. However, nobody really knows the decision’s true ramifications yet: The student in the case won the battle, but the public school district likely won the war, says University of Illinois journalism professor Benjamin Holden, a media law scholar who studies free speech issues. Holden, also the co-author of an amicus brief filed with the court that proposed specific standards under which public K-12 schools could regulate off-campus speech, spoke with News Bureau business and law editor Phil Ciciora.

What’s your take on the Supreme Court’s decision in Mahanoy Area School District v. B.L.?

Ultimately, this case is not about the cheerleader, who complained on Snapchat in vulgar terms about school and cheerleading, and was disciplined by the school district but prevailed against them at the Supreme Court. The court found her speech was protected and her one-year suspension from the cheerleading squad was invalid. The big takeaway is that the Supreme Court explicitly said the lower court was wrong in its opinion that the First Amendment bars all school regulation of off-campus or social media K-12 public school student speech. The court found that some off-campus speech – or at least the circumstances surrounding the speech, such as participation on a sports team – may be subject to school regulation and discipline.

But what kind of speech and under what circumstances is regulation proper? The court played the judicial equivalent of hide-and-seek in writing that the justices “hesitate to determine precisely which of many school-related off-campus activities belong on such a list.”

The court notably did not say that school administrators can’t discipline students for what they say online after school. It said, essentially, that you can’t discipline this particular cheerleader, in this particular instance, for this particular speech.

In the opinion, the majority wrote that while the 3rd Circuit got the immediate question right about the cheerleader’s speech, it got the bigger question wrong on whether the 1969 school speech case Tinker v. Des Moines Independent Community School District applies. The school’s regulatory interest in student speech remains significant in some off-campus circumstances such as bullying or harassment, threats to teachers or students, racial epithets, cheating – things of that nature.

Did the court offer any guidance to lower courts that will have to wrestle with similar cases in the near future?

Yes. The court expressly declined the pleas of amici on both sides to definitively answer the question of whether the Tinker precedent applies to off-campus speech. Essentially, the court said, “It depends.”

But depends on what? The court offered and discussed three factors. The first factor is the guiding premise that the school in relation to off-campus speech is not “In loco parentis”; the parents have jurisdiction outside of school. If the student is at the mall with a smartphone making threats, the parent is responsible for the student’s behavior.

Second, schools can’t regulate all off-campus student speech because that would mean monitoring students around the clock. That’s more than a little controlling and oppressive in that, if you take the argument to its logical conclusion, because of the nature of smartphones, the teacher and the school would always be peering over students’ shoulders like Big Brother.

Third, public schools – as “nurseries of democracy,” as the majority wrote – have an interest in protecting unpopular ideas, especially when the expression of those unpopular ideas takes place off campus. And that’s to protect the speech rights of all sorts of minorities – racial, ethnic, political, nontraditional gender, etc.

So the court affirmed that schools have an extra duty in protecting unpopular opinions and minority speech rights.

Why was the court so coy and didn’t explicitly delineate a new speech test to give school administrators certainty?

The opinion is more of an affirmative declaration that we know which things are important, but we’re not really sure what the implications would be and how this is going to play out. And that’s mainly because the internet and social media will continue to change and evolve, and people’s views about internet speech will likely continue to change and evolve as well. That, I believe, is why they merely gave broad guidance rather than pronouncing a new legal rule. Such a rule could look foolish or just become unworkable if technology and adolescent behavior change in radically unexpected ways over the next few years.

Also, the median age of the court skews quite high, so I would imagine that the internet and social media is still a novel concept for the older justices.

So we’ll have to wait for a new test case. Another case will come up in six to eight years, and by then an overwhelming consensus will have developed about off-campus speech. And then the court will take a case and rubber-stamp what everybody already knows.

What do school administrators need to know about the ruling?

This is one of those cases where the law might not be in the majority opinion. The law might be in the concurrence, but we won’t know until the issue is tested again in the lower courts. Law clerks around the country are going to draft opinions in these disputes over the coming months and years, and then courts of appeal will get more cases with similar fact sets 18 months to two years from now, and a consensus will develop through the outcomes of those cases.

But school administrators should bear in mind that the court gave, in broad strokes, the green light to the careful regulation of K-12 social media speech that pays homage to the three factors outlined in the decision. These broad strokes do not in any real way imperil the validity under the First Amendment of reasonable regulation and punishment of say, student-to-student cyberbullying arising directly and solely out of their on-campus relationship.



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