A Digital Tinker: Shaping School Speech Doctrine for the 21st Century

Will Sharps | June 2021


he concept of freedom of speech in the United States carries with it a unique history. The First Amendment, protecting free speech, asserts that Congress does not have the power to create laws which prohibit the free exercise of religion, or abridge freedom of speech, press, or the citizens’ right to peacefully assemble in protest. 


This special importance placed on freedom of speech in America is not absent from Supreme Court jurisprudence, especially in the past century. Landmark cases regarding free speech, including Abrams v. United States (1919), Chaplinsky v. New Hampshire (1942), and Miller v. California (1973) are only a few instances in which the Court has attempted to interpret exactly the rights which the First Amendment affords us as US citizens. 


The Issue of Speech in Public Schools


As a result of their unique place in cultivating successful members of our society, public schools have long been a site of legal contention regarding the degree to which the First Amendment’s rights extend to students and staff. Today, the Court faces the challenge of deciding one such case in Mahoney Area School District v. B.L., in which the justices will be tasked with deciding whether a public school is constitutionally allowed to restrict students’ speech while they are off campus, and, if so, to what extent. 


The present Mahoney Area School District case arose after Brandi Levy, a high school sophomore at the time, took to Snapchat after failing to make the varsity cheerleading squad. Levy’s frustrated message, viewable for 24 hours on the app, included the word “fuck” four times, and in one instance the phrase, “fuck cheerleading.”  A screenshot was taken of Levy’s post and shown to parents involved with the cheerleading team who took the incident to the school. School officials ordered that Levy be removed from the team as a result of violating both team and school rules. With her parents, Brandi Levy sued the school district, claiming that her suspension violated her right to free speech, among other grievances with the school’s rules. 


The Supreme Court will now decide whether or not to affirm the decision of the U.S. Court of Appeals for the Third District’s ruling that the school district did in fact violate their student’s First Amendment rights by suspending her from the team. As in most cases, the Court will surely look to precedent established by earlier rulings in formulating a decision. Likely, the court will take a long look at Tinker v. Des Moines Independent Community School District, a 1969 case focusing on the extent to which student speech can be regulated in a public school. 


Looking Ahead Through the Lens of Tinker


While the precedent established in Tinker will undoubtedly help guide the current justices, the current case is different in two distinct ways. In Tinker, the majority of the Court held that it was unconstitutional for a school to punish students who wore black armbands to school as a means to oppose the nation’s involvement in the Vietnam War.


The court’s decision in Tinker hinged on the idea that the students’ speech did not constitute “substantial disruption” or “material interference” with the activities and goals of the school. In delivering the opinion of the court, Justice Abe Fortas famously asserted that neither, “students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Justice Fortas would later claim that, “state-operated schools may not be enclaves of totalitarianism.”  Thus, the Court established precedent in which students of public schools do retain their right to freedom of speech and expression to a significant degree while on campus. 


Yet now the Court must interpret this precedent, among others, and apply it to a case in which the speech at hand occurred off campus, and through digital means. If the current court does in fact rely heavily on Tinker, it seems unlikely that the actions of the school district could be constitutionally upheld.


The optional viewing of a snapchat on one’s phone in no way creates a situation that the Court sees as creating a “substantial disruption” or “material interference” with the operations of the school. In no way are the daily activities of the school affected by a student expressing their anger at not making a sports team, even if the language included in the message may be viewed as offensive to some. 


Furthermore, the message did not target any specific member of the school, so it should not create a situation in which a coach, student, or other school staff member is not able to perform their duties. Given that the speech occurred off campus, as Levy was at a mall when the snapchat was posted, the Court will likely be even more hesitant to regulate the speech than they would have been if the speech was on school grounds. 


Representation for the school district has argued that restricting off campus speech may still be within the school’s purview and likened this case to instances in which schools have punished students for off campus actions such as bullying or aiding in the suicide of another student. Additionally, the school district has urged different courts to look at how digital speech may affect a school, even if it was not posted at school. 


This last point is an interesting one, and one that the Supreme Court may not offer an opinion on given its ambiguity. Rather, the public may be soon presented with a narrow decision in Mahoney Area School District, a decision that serves to protect the First Amendment rights of public school students, while also not establishing a broad precedent which may be applied in future cases regarding the regulation of digital speech. This decision could very likely be one that applies only to the exact speech at hand in this case, speech that is not very harmful to any person or entity at all. This possibility is signaled by Justice Breyer’s noting that he is “frightened to death of writing a standard.” 


In Conclusion


While the American public awaits the court’s decision on current matters, there is one certainty. The digital age is here, and with it are new judicial challenges. It is doubtful that the Court will always address the idea of regulating digital speech on a case-by-case basis. At some point a court will have to establish a precedent to which we can refer in dealing with the ability of schools and other organizations to restrict digital speech. Until then, a new judicial frontier will remain unexplored, leaving constitutional applications to the digital realm hazy.

Will Sharps is a rising junior at the University of Michigan from Baltimore, Maryland. He is studying Philosophy, Politics, and Economics with a minor in Crime and Justice. He focuses his writing on constitutional and criminal law. Outside of MC, Will enjoys water sports and volunteering with his fraternity.