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Recent Supreme Court Off-Campus Free Speech Win To Face Reality Of Anti-Free Speech Student Attitudes

Recent Supreme Court Off-Campus Free Speech Win To Face Reality Of Anti-Free Speech Student Attitudes

While those who value free speech should be celebrating the Mahanoy decision, decades of iron-fisted school control over what students are allowed to say has normalized such authority in the minds of many.

Last week, the Supreme Court decided the case of Mahanoy Area School District v. Levy.  The Court considered whether schools could regulate student speech that occurs off-campus and outside of school hours.

And it came down decisively in favor of the First Amendment.

Those who favor clamping down on student speech will argue that the decision is limited to its facts.  But in actuality, the opinions’ implications are far-reaching and will likely transform the landscape of speech codes at colleges and universities and possibly beyond.

While the First Amendment serves as a bulwark against government suppression of speech and not that of private industry, the Court’s decision sends a message about the importance of free expression. It serves as a warning shot to those perpetrators of cancel culture that punitive action against those who express unpopular viewpoints – the so-called “heckler’s veto” – is strongly disfavored.

Background Facts 

The case involved a high school student, Brandi Levy. After failing to make the varsity cheerleading squad and her preferred position on a private softball team, she expressed her frustration by posting an image – taken over a weekend and at a local convenient store off school grounds – on her Snapchat story.

The image included a photo of Levy extending her middle fingers  and a caption that said, “Fuck school fuck softball fuck cheer fuck everything.”

Levy’s Snapchat “friends” who saw the post included other high school students who belonged to the cheerleading squad.  At least one of them took pictures of the post with a separate cellphone and shared them with other cheerleading squad members.

That week, several cheerleaders approached the cheerleading coaches “visibly upset” about the posts.  There also was a discussion about the Snapchat story during an Algebra class taught by one of the squad’s coaches.

Consequently, the school suspended Levy from the junior varsity cheerleading squad for the upcoming year.  Despite Levy’s apology and request for reinstatement, the school’s athletic director, principal, superintendent, and school board refused to budge from the penalty.

Having no other recourse, Levy filed a federal lawsuit seeking a declaration that the school’s actions violated her First Amendment rights.

Levy won at the district court level and in the Third Circuit – and now she has won again at the Supreme Court.

SCOTUS Decision

In an 8-1 decision, the Supreme Court determined that the Mahanoy Area School District violated Levy’s First Amendment rights by suspending her from the junior varsity cheerleading squad.

The Mahanoy School District cited the seminal 1969 Supreme Court decision of Tinker v. Des Moines Independent Community School District, which involved the suspension of students for speech that occurred on school grounds during the regular school day concerning black armbands to school in protest of the Vietnam War. The district argued that it had the authority to regulate all student speech, on- or off-campus, that might cause a “substantial disruption” at the school.

The Third Circuit had held that the Tinker standard did not apply to off-campus speech. Because Levy’s speech took place “outside school-owned, -operated, or –supervised channels,” and could not be “reasonably interpreted as bearing the school’s imprimatur,” Levy’s suspension violated her constitutional rights.

The Supreme Court rejected the Third Circuit’s bright-line rule that schools are categorically prohibited from disciplining students for their off-campus speech and held that schools must be allowed to regulate such speech in certain situations.  According to the Court, severe bullying or harassment and threats aimed at teachers or other students as examples of when that would be appropriate.

But the Court also refused to adopt the school district’s proposed standard.  Instead, the Court found a third path whereby a school’s interest in regulating off-campus speech – of which preventing a “substantial disruption” is but one – must be weighed against the student’s interest in free expression.

However, the Court identified three features of off-campus speech that often diminish a school’s interest in regulating it and declared that those features must be considered in challenges such as this.

First, speech that occurs off-premises “normally fall[s] within the zone of parental, rather than school-related, responsibility,” and therefore, it will rarely be appropriate for a school to discipline a student where it does not stand in loco parentis.  Justice Alito, in a concurring opinion, elaborated that “[i]n our society, parents, not the state, have the primary authority and duty to raise, educate, and form the character of their children,” and that they “do not implicitly relinquish all that authority when they send their children to a public school.”

Second, since schools have broad authority to regulate on-campus student speech, “courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.”

Third, since public schools are “the nurseries of democracy,” they have “an interest in protecting a student’s unpopular expression” – popular ideas, said the Court, “have less need for protection” – to encourage a robust “marketplace of ideas.”

The Court then turned to the facts of Levy’s case and found that her speech was entitled to constitutional protection.  Although vulgar, Levy’s words amounted to criticism of the team, the coaches and the school, and did not rise to the level of “fighting words” or obscenity —  “[t]o the contrary, [Levy] uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”

The school advanced three interests that it claimed outweighed Levy’s interest in free expression: 1) an interest in teaching good manners and “punishing the use of vulgar language aimed at part of the school community; 2) an interest in preventing disruption of a school activity; and 3) an interest in preventing a decline in team morale.

In applying the three factors to Levy’s case, the Court concluded that any interest the school had in punishing the use of vulgar language aimed at a part of the school community was “weakened considerably by the fact that Levy “spoke under circumstances where the school did not stand in loco parentis.”  Levy’s posts appeared “outside of school hours from a location outside the school,” and “there is no reason to believe [her] parents had delegated to school officials their own control of [Levy’s] behavior” at the time she published the posts.

Next, the evidence in the case failed to establish that Levy’s posts had caused either a “substantial disruption” of a school activity or a severe decline in team morale.  Instead, it appeared that the school merely desired “to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

These features diminished the school’s interest in regulating Levy’s speech and rendered it insufficient to outweigh Levy’s interest in free expression.

Implications

The Mahanoy decision has breathed new life into student First Amendment rights that many had assumed to be a dead letter.  Until last week, public school administrators were punishing protected off-campus student speech with near impunity, even where the expressive conduct created no material and substantial disruption to the school environment or invasion of the rights of others.

In almost all of these cases, the students’ expressive conduct took place online.

In their amicus brief to the Supreme Court, the Foundation for Individual Rights in Education (FIRE) cited several examples of how high schools had long disciplined students without much resistance to expressing views on public concern issues online, outside of school and on their own time.

These included:

  • A New Jersey high school student who was warned by her principal that tweets critical of Israel would land her in trouble
  • Students at a Georgia high school who were suspended for tweeting images of school hallways crowded with unmasked students following the school’s reopening last August during the COVID-19 pandemic
  • A high schooler from Arizona who was suspended for tweeting a quote from the 2004 comedy Mean Girls
  • A senior at a Michigan high school who was suspended for posting a picture on Facebook and Twitter of dirty water running from a school bathroom sink
  • A Massachusetts student who was punished by his high school after he tweeted a profanity in response to the school’s announcement of a snow day.

In the case of the Massachusetts student, it was clear that the purpose of the punishment was simply to stifle criticism. According to FIRE, the administrators “threatened to increase the student’s punishment to a five-day suspension unless he deleted three other tweets that did not contain profanity, but talked about the school’s response to his original tweet.”

Similarly, a Colorado public high school senior was suspended for five days for posting a picture of herself and her older brother holding firearms with the caption: “Me and my legal guardian are going to the gun range to practice gun safety and responsible gun ownership while getting better so we can protect ourselves while also using the First Amendment to practice our Second Amendment.”

The student cheerleading team at a North Carolina high school was placed on season-long probation after a photograph of team members posing in front of a “Make America Great Again” sign supporting President Donald Trump’s re-election campaign was posted on Facebook.

In none of these cases did the posts cause disruption or invade the rights of others, yet that did not restrain the schools from imposing severe discipline on the students who made the statements.

Now, in reaffirming the vitality of student rights to free expression, the Mahanoy Court has pulled the reins hard on governmental overreach and reclaimed ground that is entitled to First Amendment protections.

Even though the facts in Mahanoy had to do with a high school disciplinary decision, its holding will surely influence how public colleges and universities approach off-campus speech.

That’s a good thing because there has been an alarming trend over the last several years of college campuses utilizing surveillance technologies to monitor their students’ off-campus and digital speech. In fact, according to the Electronic Frontier Foundation, more than 200 universities across 37 states are using technologies such as social media monitoring to keep tabs on their students’ online activities.

And there’s no shortage of online activity.  As smartphones have become more ubiquitous, social media use by young adults has reached record levels.  Indeed, the Pew Research Center reports that 31% of U.S. adults now admit to being online “almost constantly.”

Unsurprisingly, the heightened oversight of students’ online speech has resulted in more investigations and punishment for it.  And just like at the high school level, such discipline is meted out without regard to whether the speech creates any disruption to the educational environment.

For example, one college student in North Carolina was barred from attending his graduation because he posted a comment on Facebook criticizing his college for handling its recovery from tornado damage.

At Wake Forest University, an investigation was commenced after an anonymous online account published a parody Instagram Story with satirical text stating that a candidate for student body president “want[ed] to build a wall between Wake and Winston-Sale m State,” and that “he’ll make them pay for it.”

At Fordham University, a rising senior and Trump supporter named Austin Tong was disciplined for two Instagram posts.  The first was a photo of David Dorn, the black St. Louis police captain who was killed by looters during the violence following the killing of George Floyd, and included the caption, “Y’all a bunch of hypocrites.”

The second was made on the 31st anniversary of the Tiananmen Square massacre of pro-democracy activists in Beijing. Tong, who emigrated from China as a child, posed for a photo holding a legally obtained gun off-campus, with the caption “Don’t tread on me.”

Tong was banned from visiting campus without prior approval for these posts, taking leadership roles in student organizations, and participating in athletics. He also was required to complete implicit bias training and write an apology letter.

 

View this post on Instagram

 

A post shared by Austin Tong (@comrademeow)

 

View this post on Instagram

 

A post shared by Austin Tong (@comrademeow)

At the University of Tennessee, a pharmacy graduate student named Kimberley Diei posted photographs of herself in a tight dress to Twitter and Instagram under a pseudonym and accompanied the photos with raunchy rap lyrics she composed. A disciplinary panel at the university declared that the posts were “vulgar” and “crude” and ordered her expelled.

Sadly, such stories have become commonplace in the halls of higher education, where school administrators wield enormous power over what students, faculty, and staff can say publicly, even when they are on their own time and off of school premises.

Case in point, the University of Oregon’s Board of Trustees recently passed a resolution that would greatly expand the university’s power to regulate off-campus student conduct.  According to the resolution, the university could apply the Student Code to punish any off-campus student behavior in which the school has an “interest.” Specifically, the policy provides:

“The University may apply the Student Conduct Code to student behavior which occurs off-campus in which the University can demonstrate a clear and distinct interest as an academic institution regardless of where the conduct occurs and a) which causes substantial disruption to the University community or any of its members, b) which involves academic work or any University records, documents, or identifications, or c) which seriously threatens the health or safety of any person.”

But now that the Mahanoy decision has clarified that certain features of off-campus speech can vitiate interest in preventing a “substantial disruption”, it’s hard to imagine that the University of Oregon’s resolution – and substantially similar policies at other schools throughout the country – will pass legal muster.

Schools have long used campus discipline as a cudgel to stamp out student criticism, crush political opinions that don’t echo liberal pieties, and eliminate social perspectives that are not aligned with leftist orthodoxy.  The decision in Mahanoy – if we’re to be optimistic – signals at least the beginning of the end of that era.

And if we’re feeling particularly hopeful, the Court’s pronouncements – that the state does not have the primary authority to form the character of our children, that free speech requires the opportunity to engage in expressive conduct, and that unpopular expression must be protected to encourage a vibrant “marketplace of ideas” – might properly be interpreted as a message to the Silicon Valley oligarchs who have played fast and loose with viewpoint suppression that the Court has got their number and will soon be calling it in.

While those who value free speech should be celebrating the Mahanoy decision, decades of iron-fisted school control over what students are allowed to say has normalized such authority in the minds of many.

According to a recent YouGov poll, 54 percent of students say that it is appropriate for public schools to enforce punishments for online speech made by students outside the classroom.

Despite last week’s landmark victory, the sad irony is that the strongest resistance to change may come from none other than the students themselves.

Ameer Benno is an appellate and constitutional law attorney. He was the Republican candidate for the U.S. House of Representatives in 2018 in New York’s Fourth Congressional District, and he frequently appears on national television and radio to give legal and political commentary. Follow him on Twitter at @AmeerBenno.

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Comments

AF_Chief_Master_Sgt | June 29, 2021 at 7:38 am

Students nationwide need to push the limits of this ruling, if only to force schools, colleges, and universities to remove their tyrannical control of student behavior off campus.

    henrybowman in reply to AF_Chief_Master_Sgt. | June 29, 2021 at 2:11 pm

    Public schools should be a slam-dunk, as they are pure government organs. “Private” universities are trickier… and yet, the fedguv has no problem strong-arming nearly every private university in America into complying with its fill-out-all-our-racial-forms and FAFSA BS if even a single student gets federal assistance from SSDI, GI Bill, Pell, or the like. (See the Hillsdale College website for a discussion of this “principle.”) If the fedguv can do that for administrative BS, there’s no reason at all they shouldn’t also be able to demand those schools honor the entire BOR exactly as the government would have to. But that’s not a priority, I guess.

One of the new variables is an appreciation of how stupid school administrators are. It’s not obvious that the Supreme Court can do much about that.

You want a system where the wrong people do the right thing, but it’s getting difficult without a massive change of staff.

The global fix is taking away women’s vote.

    Dathurtz in reply to rhhardin. | June 29, 2021 at 8:29 am

    School administrators are almost always failed teachers that are too connected to fire. If they are so bad they have to be kept away from kids, then they work in the central office.

      Jack Klompus in reply to Dathurtz. | June 29, 2021 at 9:37 am

      Also, the wokiest of the woke teachers (the ones who fill their social media with pictures of them raising their fists at protests, etc.) are typically the worst teachers in the classroom.

    JusticeDelivered in reply to rhhardin. | June 29, 2021 at 10:09 am

    I agree that school adminiatrators have a tendancy to lean toward being tin horn dictators, and that a clean sweep is in order.

    But I do not agree with taking the right to vote away from woman. Perhaps there should be a minimum IQ standard for both voting and holding office? Most certainly, Demoncrats have honed their propaganda skills while targeting dull people.

    stevewhitemd in reply to rhhardin. | June 29, 2021 at 11:40 am

    You are quite the moby, aren’t you.

    Take away women’s voting rights? Seriously? You’re just trolling here so that your pals at the hard-left forums can talk about how “Legal Insurrection wants to ban women from voting”.

    To the rest of the commenters: don’t fall for this guy. He’s a moby.

      daniel_ream in reply to stevewhitemd. | June 29, 2021 at 12:41 pm

      If you look at the breakdown of voting by sex, it’s not exactly a revelation that women tend to vote for terrible policies.

      It’s basic genetic psychology: women will tend to vote for whatever increases the safety and security of themselves and their own offspring. In public, they will espouse whatever political position elevates their status within the herd.

    henrybowman in reply to rhhardin. | June 29, 2021 at 2:15 pm

    He’s actually right. Somehow, we have ended up in a world where our “leaders” of almost everything value wokeism over rationality. Apparently, all it take is a press incentivized to collaborate on coverage designed to continually tar the unwoke as “not of the body.”

      henrybowman in reply to henrybowman. | June 29, 2021 at 2:23 pm

      Let me qualify this. I don’t think his final sentence is right… even though I agree that statistically and as a whole, the female vote is unusually uninformed and irrational. The proper solution to this problem is to ensure that issues that destroy rights are never decided by popular vote. SCOTUS has ruled at least twice that this is a basic principle (Westbrook v. Mihaly, WV BOE v. Barnette), and Tytler’s observation about “voters discovering they can vote themselves largess out of the public treasury” also comes to mind. Yet, the constitution has been an entirely toothless exercise in stopping that from happening, as the “majority” consistently contrives to simply ignore it.

Given the example set by the current federal administration, I expect schools to either ignore or push the envelope on the decision, especially at universities. They will not give up their power easily and they simply won’t see the line.

Can anyone comment on Justice’s Thomas’ dissent of the case?

Morning Sunshine | June 29, 2021 at 9:37 am

” 1) an interest in teaching good manners and “punishing the use of vulgar language aimed at part of the school community”

cuz I am sure they are actively policing ALL uses of her choice of vulgarity on campus, right? right?

Kimberly Diei’s situation, thanks to FIRE, appears to so far have a happy ending:
https://thegrio.com/2021/02/05/diei-sues-university-tennessee/

She, with FIRE’s help, is still pursuing her lawsuit that she she filed on February 3, 2021 against University of Tennessee, “to stop UT from further investigations into Diei’s social media, eliminate the college’s overbroad professionalism policies, and win damages for Diei over the college interfering with her First Amendment and due process rights.”

According to my review of the docket of her case (2:21-cv-02071-JTF-cgc) on PACER, UT filed a motion to dismiss for failure to state a claim based upon, among other things, “Well, in the end, this time Ms. Diei was allowed to continue in the program.” (This, of course is a paraphrase. What UT wrote in its reply brief is this: “The system worked. Although a College of Pharmacy committee voted to expel Ms. Diei, it is undisputed that the Dean sided with Ms. Diei, reversed that decision, and Ms. Diei never missed a single minute of school. The Defendants’ argument is simple: Under dispositive Circuit precedent, the Dean’s reversal of the committee means that Ms. Diei’s as-applied First Amendment claims must be dismissed. No expulsion means no lawsuit.”

I think an issue in Ms. Diei’s case will be whether a publicly funded university may use its disciplinary procedures as a cudgel if, in the end, it provides a procedure for its disciplinary committee’s intentional attempts at stifling free speech to be overturned.

Scary observation by Mr. Benno:

While those who value free speech should be celebrating the Mahanoy decision, decades of iron-fisted school control over what students are allowed to say has normalized such authority in the minds of many.

According to a recent YouGov poll, 54 percent of students say that it is appropriate for public schools to enforce punishments for online speech made by students outside the classroom.

smalltownoklahoman | June 29, 2021 at 10:16 am

Great article, one that ought to be forwarded to school boards and staff across the country! Not for anything petty, just to inform them they need to start being more careful with trying to police students off campus, non school related activities. Doesn’t matter if they don’t like what a student has to say, if it’s 1st amendment protected speech then they shouldn’t be punishing students for it. Instead they need to formulate better practices for addressing complaints and criticisms by students when an issue arises even if it’s a profanity laden tirade from one who feels they have not been treated fairly by the district.

So what did the young lady get other than vindication?

Recent Supreme Court Off-Campus Free Speech Win To Face Reality Of Anti-Free Speech Student Attitudes *sob* Clearly my brain is fried. This sentence makes no sense. After much parsing, and trust me I can’t parse worth kaka today, it’s one of those days… I get “Free Speech Win Faces Student Attitudes’ for the gist of the meaning, and that still confuses me. Somebody, who won’t mock my brain-fried state please, explain?

    George_Kaplan in reply to kyrrat. | June 29, 2021 at 9:08 pm

    I think it’s that while action against this student could easily be justified, SCOTUS ruling as they did means much of the persecution of non-Leftist students is now in breach of this ruling. Thus courts will have to rule against schools trying to punish students for expressing legal views or risk having them overturned on appeal to SCOTUS.

George_Kaplan | June 29, 2021 at 9:05 pm

The student’s post was completely disgusting and there’s no justifying it. The sole question is whether it violated the School’s code of conduct – almost certain, and whether the code of conduct applied 24/7 – which SCOTUS seems to have decided isn’t the case.

Honestly I’m of two minds over this. On the one hand punishment for such a disgusting use of language is merited, but on the other, should that be left to parents who apparently have abdicated their responsibility? On the plus side, if a school can’t punish a code violation such as this, then it definitely can’t punish students simply for holding views it disagrees with. That at least is a clear win, assuming the Left don’t do their usual double standards, ignore the case, and continue with rules for thee and thine but not me and mine.

    Dathurtz in reply to George_Kaplan. | June 29, 2021 at 10:18 pm

    You might be surprised how often parents call the school and want them to deal with this kind of stuff.

    AF_Chief_Master_Sgt in reply to George_Kaplan. | June 30, 2021 at 10:10 am

    Free speech means that someone is allowed to say something that you believe is disgusting and unjustified.

    Your subjective beliefs have no bearing on free speech.

    We wouldn’t need a 1st Amendment if everyone acted, thought, spoke, wrote, and expressed themselves on social media the same as everyone else.

    But if everyone was expected to be the same as everyone else, we should just all become Democrats.

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