Protecting the Nurseries of Democracy: The Future of Student Speech Rights after Mahanoy Area School District v. B. L.

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Abstract

In Mahanoy Area School District v. B.L. (2021), the Supreme Court held a public school could not discipline a student for posting vulgar snaps about her cheer team on social media. In an 8-to-1 decision siding with the student, the Justices reaffirmed Tinker v. Des Moines Independent Community School District (1969), a landmark decision extending public school students’ speech rights. The majority in Mahanoy was, however, unwilling to “set forth a broad, highly general First Amendment rule stating just what counts as ‘off-campus’ speech and whether First Amendment standards must give way off-campus to the school’s desire to prevent . . . disruption of learning-related activities.” Instead, Justice Breyer offered a narrow opinion confined to the facts of the case that provides little practical guidance to students, school officials, and lower courts dealing with thorny issues related to off-campus speech. Further compounding matters, the “three features of off-campus speech” identified in his majority opinion will likely lead to more restrictions governing what students may say on their own time and using their own equipment.

Author

• Dale Herbeck, Northeastern University