By Julia Cleary, Staff Writer

As social media becomes a primary form of communication, considerations over free speech are naturally evolving. Cases such as Elonis v. United States have addressed threats made over social media. However, when the speech doesn’t constitute that level of harm, there is a legal grey area regarding which punishment is warranted. This issue is particularly relevant to students, who are subject to more speech restrictions by their guardians and schools. To fully understand the evolving protections to student free speech, it is important to consider past precedent. 

Tinker v. Des Moines Independent Community School (1969) is the landmark case regarding student free speech. In a 7-2 decision, the court ruled that preventing students from wearing armbands as a form of protest in a public school violates the students’ First Amendment free speech protections. 

Since Tinker, multiple student speech cases have risen to the highest court of the land. In 2007, Morse v. Frederick was brought before the Supreme Court. This case was set into motion when Joseph Frederick held up a banner that said “Bong Hits 4 Jesus” during a school event. The  banner had an obvious implication to marijuana, so the school’s principal, Deborah Morse, suspended Frederick for ten days. Frederick sued his principal under the federal civil rights statute 42 U.S.C 1983. He argued that his First Amendment rights to free speech had been violated by the confiscation of his banner and his suspension. 

The district court ruled in favor of Morse and held that there was not a constitutional violation. The court also granted Principal Morse qualified immunity. Qualified immunity is commonly associated with law enforcement; however, it can apply to principals and teachers in particular circumstances. The precedent set by Pearson v. Callahan states, “Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” 

However, the 9th Circuit Court of Appeals reversed the district court’s decision. This court held that the Tinker precedent protects student speech as an extension of the First Amendment. This precedent states that student speech is protected when the speech doesn’t cause a disturbance. The Court of Appeals argued there was not any proven disturbance in Frederick’s case as he was suspended for what his banner said, not because of any incident that resulted from it. Additionally, the Court of Appeals held that the principal did not have qualified immunity as any reasonable principal would know that Frederick’s speech did not cause a disturbance. 

The Supreme Court considered two questions when deciding the case. The first was whether the First Amendment protected students’ rights to “display messages that promote the use of illegal drugs at school supervised events.” The second question was whether school officials have qualified immunity with damage lawsuits under the civil rights statute when school policy mandates discipline for students displaying drug references at school supervised events. The court ruled in favor of Morse in a 5-4 decision, with the response to the questions being “yes” and “not reached” respectively. Chief Justice Roberts’ majority opinion held that student speech in public schools is limited and not as far-reaching as the free speech rights guaranteed by the Constitution. The Justices also asserted that the protective standard created by Tinker cannot always be applied.  

In a pending case, Mahanoy Area School District v. B.L., the Supreme Court is once again considering student speech. However, unlike the previously mentioned case, the school violation occurred over social media, outside of the school’s physical property or a sponsored school event. In this case, a high school student posted profanity on her Snapchat story, cursing out her school and a sports team after she did not make the varsity cheerleading team. After the school and her coach discovered this post, they suspended her from the junior varsity cheerleading team for a year. The case eventually made its way to the Supreme Court, where the justices are currently considering whether the First Amendment prohibits public school officials from regulating off-campus student speech. 

The important considerations of Mahanoy are whether the speech is substantially disruptive and whether students are a “captive audience” with school-related speech that occurs off-campus. The substantially disruptive argument originates from Tinker, which set the precedent that schools can punish student speech under certain circumstances. Such circumstances include when the administration has reason to anticipate that the speech could substantially interfere with the school proceedings or impinge on the rights of other students. The captive audience argument also has a basis in Tinker. In Mahanoy, if it is determined that students are a captive audience, the speech can be constitutionally regulated even though it occurred outside the school’s physical boundaries. 

Mahanoy has the potential to set a precedent that will reinvent student speech in the era of social media, where the “gates of the schoolhouse” extend beyond the physical boundaries of the school property (Tinker). However, the court will likely rule in favor of the student, deferring the question of regulating school-related speech on social media for another day.