Education Empowerment

Student Free Speech Protected by Supreme Court

Landon Hooley is a policy intern at Libertas Institute and a student at Brigham Young University.

Imagine being punished by a school for something posted on Snapchat or Instagram over the weekend. A public school system should have no right to limit what you say in your private life. Unfortunately, that’s exactly what happened to Pennsylvania high school cheerleader Brandi Levy.

The high school sophomore was frustrated that she had not made her school’s varsity cheerleader team and posted a Snapchat story outside of school hours, while off campus, that included offensive comments and gestures directed towards the school.

The school was eventually notified, and it subsequently suspended the student from the junior varsity cheerleading team, violating her constitutionally protected free speech rights. With the help from the American Civil Liberties Union, Levy fought the suspension in court.

In a win for student First Amendment rights, Mahanoy Area School District v. B.L. held in an 8-1 decision that unless a school has a “special interest” overcoming rights of free expression, it can’t regulate off-campus student speech.

In the past, Bethel School District v. Fraser and Morse v. Frederick clearly established that schools could punish students for offensive speech made on campus. Tinker v. Des Moines limited school retaliation against non-offensive political expression while on campus, but there hadn’t been any clear precedent on whether schools had any jurisdiction over off-campus speech.

Libertas Institute has been an advocate for free speech rights, especially on state-funded campuses. Regardless of age or location, government-funded organizations shouldn’t be able to skirt around individual rights because speech could be deemed as offensive to a student or, in the case of Levy, to an administrator.

The case was decided in favor of Levy three different times. The District Court found, referencing Tinker, that the Snapchats “had not caused substantial disruption” at the school and granted summary judgement for Levy. The Third Circuit court reaffirmed the decision but concluded that Tinker v. Des Moines did not apply because the cheerleader’s post happened off campus.

The decision is a huge step towards protecting free speech, but if the Supreme Court had reaffirmed the Third Circuit’s decision, the protection of off-campus speech would have been even broader. It would have left practically no room for schools to claim sufficient cause to punish students for off-campus behavior and speech.

However, the Supreme Court differentiated their ruling from the Third Circuit by affirming that Tinker actually did apply, but in a limited measure. 

Schools have some control over the free expression of their students off-campus in cases where, for example, there is “serious or severe bullying or harassment.”

Mahanoy v. Levy may have a substantial impact on students’ freedom of expression, but there remains much work to be done, especially at the university level. The fight to preserve speech rights may not ever truly end, but victories like these make future battles easier to win.