The Record: Did the court’s ruling surprise you? What do you think of the justices’ reasoning?

This is not surprising, though it’s noteworthy that this is now the fifth time that the Supreme Court has taken on a student speech case, and it’s the first time since the very first opinion that they actually found for the student. Historically, the general principle is that everyone, including children, has First Amendment rights. Therefore, the regulation that we allow for in public schools, because public schools are state actors, is subject to constitutional limitations.

The major original case is Tinker v. Des Moines Independent Community School District, from the 1960s, which says that a school may punish a student if their speech substantially interferes or disrupts a school activity or collides with the rights of another student. Since that time between Tinker and the Mahanoy case, we have three other opinions, all of which put exceptions into Tinker. What they call the “substantial disruption test” doesn’t apply when it’s a student newspaper that’s run by a faculty member, or when the students are promoting illegal drug use on-campus, or when they’re saying lewd speech as part of a public assembly. There’s a series of carve outs that came out in the 1980s, and as recently as 2007, with the Morse v. Frederick case. 

The Mahanoy opinion makes clear that there is a distinction between the times in which a student is generally protected by the First Amendment in its fullest form, and when they’re in that restricted environment in a school.

The Record: Historically and legally, how big a deal is this ruling?

The fundamental question that I think we are looking to answer is, how do we understand the school as a restricted-speech environment, given that what is on-campus and what is off-campus is very blurry these days?

But even before this past year, a lot of things that happened off-campus would find their way on campus. You do a lot of things that we think of as part of your school life when you’re outside of school: you’re on a field trip or you’re somewhere else with students or faculty. 

There are a lot of tests proposed, but the court didn’t go for any of them.  They identified three general principles that should be considered: When a school stands in place of parents, it makes sense to punish like a parent would; that a student should not be put in the situation where they’re always in a restricted environment, there should be some places where they have their full First Amendment rights; and that the school has a responsibility to protect unpopular ideas by students. And then there’s this really interesting constitutional value that the court talks about at the end, writing schools should protect “unpopular expression” as a way of fostering democratic values.” 

It touches on a lot of the freedom of expression principles that we talk about in a law school: Why do we protect speech, even when it causes other harms that we normally would allow the law to address? One that often gets asserted is fostering of democratic autonomy, the self-governance ideal of freedom of expression. And it seems like the court was gesturing at this idea that schools should tolerate some unpopular expression.

I think it mattered in this case that there was criticism underneath the vulgarity and it was directed at the school. There is a degree to which you can’t punish the person because they’re saying nasty things about you. As a school, you should be able to take it.

The Record: Did anything in the justices’ concurring opinions surprise you?

The reasoning of Justice Alito is pretty parallel to the majority opinion and so his concurrence, which was joined by Justice Gorsuch, gives additional historical context and engages a bit with Justice Thomas’s dissent about a historical understanding of freedom of expression in this context. It also calls into question why schools should be allowed to restrict speech more generally, and calls them out as a concerning actor in this area.

For instance, what about a student harassing another person on Snapchat? Does that mean that the school could never take action against the harasser because it is happening on an online platform? What about threats that are made directly to a school official or a criticism or antagonism that a faculty member might experience?

Both Justice Alito quite directly, and Justice Breyer somewhat indirectly, point out that they’re not saying you can’t punish bullies by articulating this rule, but they don’t go so far as to actually define the boundaries.

The Record: Given Justice Breyer’s argument that “the speaker’s off-campus location will make the critical difference,” how does one determine the “location” when considering social media?

Before this case, courts had considered when something is done close enough to campus, such that you’re in this restricted environment and can punish a student for otherwise lawful speech. Some courts decided that anytime it causes a disruption on-campus we can punish it, no matter where the speech comes from. I don’t think you could say that after this decision.

But other courts have talked about whether it was sent or accessed from an on-campus setting as being a potential difference. A lot of those cases are from the 2000s early 2010s, where there was more use of on-campus computers, and so it’s easier to say you’re at the computer lab sending or receiving this message, therefore you’re on-campus.

These days, it’s all happening over smartphones, so that test doesn’t apply as neatly today. Before this decision some courts looked at the speaker and whether or not they intended it to have an effect on-campus and if they were directing their speech to campus. Reading this opinion, the fact that Justice Breyer makes a point that this wasn’t directed at campus, tells me that may be a good test going forward.

I think it is important that this court is trying to draw lines around when you are inside versus outside the school environment.  Especially right now, when for a lot of people their school life and their home life has been indistinguishable. School permeates into our lives in a much more profound way than it used to. 

I hope that courts feel empowered to scrutinize when schools will seek to punish a student for speech. I think that is an important thing for them to be critical about because we have seen, in cases in the past and in this case, unreasonable extension of that punishment power for things that have only an indirect nexus to school activity.

The Record: How is the ruling likely to affect free speech in social media?

The opinion itself is careful to stay confined to the restricted environments of school. It doesn’t say anything about some of the more controversial things that have happened in the First Amendment doctrine more recently. There have been some interesting cases, starting about six years ago, considering when a law becomes a content-based restriction on freedom of expression that is subject to higher judicial scrutiny. 

The case of Reed v. Town of Gilbert put a very aggressive view as to what constitutes a content-based restriction on speech. We had two cases about 10 years ago, Citizens United and Sorell v. IMS, that looked at how economic and other forms of regulation can be trumped by what some critics call “First Amendment Lochnerism,” this idea that a laissez-faire economic view is pushed by corporations through asserting First Amendment rights.

This case doesn’t put any of that stuff back on the table, it stays confined to the school context. It states, in passing, that this speech is not those classic categories of expression that are unprotected under the First Amendment, and does not apply to these frameworks and then confines itself to that environments test. So, I think it’d be hard to pull anything out of either the decision or the concurrence about what this could mean for students’ speech outside of the school context.