Staff editorial

What Mahanoy v. B.L. means for public school students engaging in off-campus speech

The Messenger Editorial Board

Although the Supreme Court ruling in Mahanoy Area School District v. B.L. appears to uphold students’ free speech rights, it is a hollow victory.

In an 8-1 decision, the Court ruled that the school district had violated a public high school student’s First Amendment rights after administrators punished her for a profane Snapchat story she posted while off-campus.

The majority opinion, written by Justice Stephen Breyer, merely set forth “three features of off-campus speech” for lower courts to consider when determining whether schools can regulate student speech in specific cases.

First, Breyer wrote that off-campus speech normally belongs in “the zone of parental, rather than school-related, responsibility.”

Second, he wrote that allowing schools to regulate off-campus speech too freely may result in the restriction of student speech for “the full 24-hour day,” since students would be under the school’s jurisdiction both on and off campus. Breyer noted that lower courts must be especially careful when deciding cases of students’ off-campus political or religious speech.

Third, he wrote that schools must protect the “marketplace of ideas,” including unpopular student expression, to preserve our democracy. Breyer quoted Voltaire’s aphorism, “I disapprove of what you say, but I will defend to the death your right to say it.”

Before Mahanoy, one group of circuit courts applied the Supreme Court ruling in Tinker v. Des Moines when it was “reasonably foreseeable” that off-campus speech would reach the school environment, another group applied Tinker when off-campus speech had a sufficient “nexus,” or connection, to the school’s educational interests, and still others had different approaches. The Supreme Court’s decision in Mahanoy resolves these inconsistencies.

However, it does little to address the chilling effect, a phenomenon where individuals refrain from engaging in permissible speech for fear of violating overbroad or vague regulations. It thus discourages legitimate exercise of the law by the threat of legal repercussions. 

The ruling stated that lower courts must consider three features pertinent to First Amendment cases of on-campus speech: whether the speech falls under parental jurisdiction, how the courts “must be more skeptical of a school’s efforts to regulate off-campus speech,” and how schools have an interest to protect even unpopular student speech. 

It is evident the three features, along with the rest of the ruling, fail to set a clear standard for when schools can regulate off-campus speech, such that students are hardly better off than they were before in terms of knowing when what they say might carry consequences. 

A more specific approach by the Court, presenting a workable test for school officials and lower courts to evaluate when to step in on student speech off campus, would prevent the chilling of that speech, while still allowing schools to handle issues the Court is concerned about, such as “serious or severe bullying or harassment” and “threats aimed at teachers or other students.”

Students’ First Amendment rights will remain at risk until the Court determines precisely which categories of off-campus speech schools can regulate. So while the ruling in Mahanoy is a step in the right direction, we would be remiss to celebrate.