On June 23, 2021, the Supreme Court announced its decision in Mahoney Area School District v. B. L., an important student free speech case which will have significant implications for how public schools regulate and punish off campus student speech. In its decision, the Supreme Court ruled 8-1 that a public high school violated a student’s First Amendment free speech rights by suspending her from the cheerleading squad as a result of her social media posts made outside of school and off school grounds. The Court held that while public schools may have a special interest in regulating certain off-campus student speech, the special interests claimed by Mahoney Area High School were insufficient to overcome Brandi Levy’s free speech rights.

In May 2017, Brandi Levy, a 14-year old Mahoney Area High School student failed to make the school’s varsity cheerleading squad. She posted a vulgar message on her Snapchat account expressing her frustration with not making the varsity squad (“F— school f— softball f— cheer f— everything”) and posted an image of her and her friend raising their middle fingers. She made this “Snap” on a weekend while visiting a local store and using her cellphone. The Snap automatically disappeared within 24 hours, but not before someone had taken a screenshot of it and forwarded it to a cheerleading coach. Mahoney Area High School punished Brandi for her Snap by suspending her from the junior varsity cheer squad.

In the 1969 Supreme Court case Tinker v. Des Moines Independent Community School Dist., the Court held that public schools have a special interest in regulating on-campus student speech that “materially disrupts class-work or involves substantial disorder or invasion of the rights of others.” 393 U.S. 503 (1969). The Mahoney Court found that the facts in Brandi Levy’s case did not satisfy Tinker’s demanding standard. The Court determined that Mahoney Area High School’s interest in preventing disruption was not supported by the facts which showed that discussion about the Snap took, at most, five to ten minutes of an Algebra class “for just a couple of days” and that some members of the cheerleading team were “upset” about Brandi’s post.

Notably, the circumstances of Brandi’s speech diminished the school’s interest in regulating her speech. The Court deemed significant that: Brandi’s posting appeared outside of school hours from a location outside the school; she used her personal cellphone to transmit her speech to an audience of her private group of Snapchat friends; and that she did not identify the school in her Snap or target any member of the school community with vulgar or abusive language. The Court’s decision in Mahoney does not prevent a public school from punishing all off campus speech. In particular, a public school may regulate off campus speech that involves severe bullying or harassment of specific individuals, threats against teachers or other students, or cheating.

Lisa Seltzer Becker is a Principal at Offit Kurman, P.A. She can be reached at (240) 507-1780; lbecker@offitkurman.com.