Supreme Court gives mixed message on off-campus free speech

For school districts in the Inland Northwest, the best thing about Wednesday’s U.S. Supreme Court ruling on student free speech is that they have a couple of months to deal with its possible effects.

In an important decision affecting student expression via social media, the court ruled 8-1 that a public school district in Pennsylvania had violated the First Amendment by punishing a student’s profane post on social media while off campus.

The court also empowered school administrators to punish online or off-campus speech that is deemed disruptive. However, the ruling said it didn’t establish “clear-cut” guidelines that justify a school’s interference in student speech when off grounds.

That will leave districts pondering a weighty question: What type of social media rant rises to the level of being disruptive? And who will define what is disruptive?

Scott Maben, director of communications at Coeur d’Alene Public Schools, said the decision “appears to apply narrowly to the circumstances of the speech at issue, with the court also recognizing that school districts have a regulatory interest in addressing threats, harassment, bullying and certain other types of student conduct.”

Other local school officials did not respond to requests for comment on the ruling. However, the National Education Association issued a friend-of-the-court brief that seemed to muddy the waters even further.

The NEA, which represents 3 million teachers, stated “that although the students in our public schools enjoy the right to speak and advocate for themselves – particularly when that expression is off campus and online – the ruling could impair the ability of schools and educators to protect students from harassment and bullying.”

Erica Salkin, an associate professor of communications at Whitworth University specializing in student speech, censorship and journalism, said she read the opinion as authorizing districts to take steps in cases of harassment online.

“I don’t think there’s anything in this decision that says if a school sees pervasive cyberbullying, they can’t intervene,” Salkin said.

All school districts have policies that also apply to electronically transmitted material.

At the Mead School District, “harassment, intimidation or bullying” includes slurs, rumors, jokes, innuendoes, demeaning comments, drawings, cartoons, pranks, gestures, physical attacks, threats or other written, oral, physical or electronically transmitted messages or images.”

However, the district notes that the policy “is not intended to prohibit expression of religious, philosophical, or political views, provided that the expression does not substantially disrupt the educational environment.”

In the same paragraph, the Mead policy sends a mixed message, at least in the context of Wednesday’s ruling.

It states that “many behaviors that do not rise to the level of harassment, intimidation or bullying may still be prohibited by other district policies or building, classroom or program rules.”

Spokane Public Schools, Central Valley and other local districts have similar language.

The case involving a Pennsylvania teenager was closely watched, as it affects the free speech rights of some 50 million public school children and the concerns of schools over off-campus and online speech that rise to the level of bullying or threats.

The case goes back to 2017, when Brandi Levy, then a 14-year-old high school cheerleader, failed to win promotion to the varsity cheer squad.

During an off-campus gathering with friends, Levy went on Snapchat. She posted a photo of herself and a friend, flipping off the camera and sent a message that said, “(expletive) the school …

• (expletive) cheer, (expletive) everything.”

Suspended from the team for disruptive behavior, Levy and her parents went to court. They argued that the school had no right to punish her for off-campus speech, whether it was posted online while away from school, as in this case, or spoken out loud at a Starbucks across the street from school.

A federal appeals court agreed with Levy, now a college freshman. It declared that school officials have no authority to punish students for speech that occurs in places unconnected to the campus.

The high court agreed, determining that the school district violated Levy’s First Amendment rights.

Salkin saw many important steps taken in Wednesday’s ruling, particularly the majority’s position that creating room for unpopular opinions within the “marketplace of ideas” was important at the secondary level.

“I’ve seen cases where they’ve said, ‘Oh, K-12, there’s no marketplace here,’ ” Salkin said. “This reflects the idea that, at the very least in high schools, they’re also marketplaces where students are active participants in their education, not passive recipients of knowledge.”

Justice Clarence Thomas dissented, writing that students “who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs.”

However, the court rejected the idea that schools can never regulate off-campus speech, especially in instances of “serious or severe bullying,” threats, and “breaches of school security devices,” according to the majority opinion.

David Cole, an American Civil Liberties Union lawyer for Levy, said that his client was “merely expressing frustration with a four-letter word to her friends outside of school on a weekend.” She wasn’t sending a threat or an attempt to bully another student.

“The message may seem trivial, but for young people, the ability to voice their emotions to friends without fear of school censorship may be the most important freedom of all,” he said.

Lisa Blatt, a lawyer for the Mahanoy Area School District, told the justices that the line should be drawn not based on where the speech occurred, but on whether it caused a substantial disruption to the school.

“Off-campus speech, particularly on social media can be disruptive,” she said, because of the internet’s “ubiquity, instantaneous and mass dissemination.”

In the opinion, Breyer seemed to strike a middle ground between those positions.

Breyer, for example, acknowledged that Levy used “unattractive swear words,” but he questioned whether it caused a “material and substantial disruption” to the school.

“I don’t see much evidence it did,” he said, noting that teenagers, when talking to each other, often swear when they are off-campus.

“I mean, my goodness, every school in the country would be doing nothing but punishing,” Breyer said.

Salkin said the ruling is likely to have ripple effects in the development of policies surrounding student speech, and schools should take from the opinion that they need more of a basis for regulating such speech than it being deemed detrimental to the school or its faculty.

“They need to be really certain, if they’re going to step in, to not try to squelch dissent,” she said.

Staff writer Kip Hill contributed to this story.