The Fourth of July. A day of American celebration. From baseball to the blues, apple pie to hot dogs, and the age-old, all-American tradition of expressing discontent with choice four-letter words. The United States Constitution grants many a freedom, but perhaps none more worthy of celebration than the First Amendment right to freedom of speech.

A STUDENT’S EXPLICIT, OFF-CAMPUS POST

On June 23, 2021, in Mahanoy Area School District v. B.L. a minor, 594 U.S. ___ (2021) (“Mahanoy”), the United States Supreme Court issued an important decision concerning the First Amendment rights of student off-campus speech and expression. The case involved a minor student, B.L. (the student’s initials), at Mahanoy Area High School in Pennsylvania who failed to make the varsity cheerleading team. Upset she was only offered a spot on the junior varsity squad, B.L. took to Snapchat to post a photo of herself and a friend raising their middle fingers with a caption: F**k school f**k softball f**k cheer f**k everything (full spelling in original).

The post, which was made over the weekend, off-campus and to a private group of friends, not surprisingly, found its way to the cheerleading coaches and was not well-received. B.L. was suspended from the junior varsity team for the upcoming year for use of profanity in connection with a school extracurricular activity. B.L, together with her parents, sued the school district for reinstatement to the team. The Supreme Court ruled 8 to 1 in favor of B.L., holding that the punishment imposed by the school violated B.L.’s First Amendment rights.

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THE FIRST AMENDMENT: NOT A GREENLIGHT TO SAY WHATEVER, WHENEVER

The First Amendment prohibits Congress from making any law “abridging the freedom of speech” and the Supreme Court has long held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” (Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969).) Yet the Supreme Court has, on numerous occasions, limited the rights of students to freely express themselves while on campus or participating in school activities.

In Mahanoy, the court declined to extend the scope of on-campus speech limitations to the off-campus speech of B.L. The Supreme Court recognized that though there exist certain significant circumstances where a school may regulate off-campus student speech and expression – such as serious or severe bullying/harassment targeting particular individuals or threats aimed at teachers or other students – B.L.’s post did not implicate such concerns. The court urged caution in over-regulating off-campus student speech for fear that all speech uttered by a student in a 24-hour day may come under scrutiny, and because schools have an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.

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FREE SPEECH STRENGTHENS DEMOCRACY

In Mahanoy the Supreme Court explained, “[o]ur representative democracy only works if we protect the ‘marketplace of ideas.’ This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection.” “B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”

The First Amendment grants to students and adults a degree of freedom of speech that serves as a pillar of American democracy. But with that freedom a profound level of responsibility is placed on the citizenry to constructively use the rights bestowed. There can be no marketplace of ideas when speech cannot be heard over expletives and vitriol. The free exchange of opinions necessarily depends on hearing what others are saying. In a time of ever entrenching and insolating perspectives, there is perhaps no greater homage to American independence than to speak freely and listen compassionately.

Ravn R. Whitington is a partner at Porter Simon licensed in California and Nevada. Ravn is a member of the firm’s Trial Practice Group where he focuses on all aspects of civil litigation. He has a diverse background in trial practice ranging from complex business disputes to personal injury to construction law, and all matters in between. He may be reached at whitington@portersimon.com or http://www.portersimon.com