Supreme Court Review

Article Title

Mahanoy v. B.L. & First Amendment “Leeway”


Mahanoy Area School District v. B.L.1 promised to resolve an issue that had been vexing the lower courts for decades: When may public schools rely on Tinker v. Des Moines Independent Community School District2 to restrict their students’ “off campus” expressive activities—i.e., when those students are not at school, under school supervision, or otherwise participating in school activities?3 Fourteen long years after it expressly left open this issue in Morse v. Frederick,4 the Court resolved this pressing question with a deeply unsatisfying answer: it depends. Although the Court ruled 8-1 in favor of a student who had posted “fuck cheer” on Snapchat after she did not make the varsity cheerleading team, Mahanoy is no victory for students.

Not only does the Court conclude that schools may use Tinker’s more relaxed constitutional standard to regulate their students’ expression wherever and whenever it might occur, Mahanoy also embraces an ad hoc inquiry as its mode of analysis. The allure of the “special First Amendment leeway”5 Mahanoy affords public schools is that it allows the Court to avoid articulating a clear student speech doctrine, but it leaves schools and judges free to consider any factors they wish to evaluate the constitutional rights of millions of public-school students on a case-by-case basis. The Court offers no guardrails to prevent schools from overextending their authority over student speech aside from essentially warning judges to “be careful.” This dramatic expansion of school authority leaves students uncertain about what remaining speech rights they might have and creates even more instability in an already confusing and arguably incoherent area of the law.6

The Court may have thought its decision in Mahanoy was narrow; it is full of statements suggesting judicial modesty.7 In addition, giving schools First Amendment leeway to regulate student speech may have seemed appealing because it offers flexibility as technology continues to develop.8 Although the case specifically addressed the application of Tinker to off-campus speech, it could be read as collapsing the increasingly complex set of student speech cases into one single inquiry regardless of where the student speech occurs. This approach to First Amendment questions reflects Justice Breyer’s long-standing advocacy for a proportionality approach, where the Court’s traditional free speech doctrines provide helpful “rules of thumb” but are not determinative.9 Importantly, however, Mahanoy is not obviously a proportionality inquiry but instead an ad hoc analysis of a specific set of facts.

This Article contends that the Court’s willingness to embrace an ad hoc inquiry in Mahanoy reflects the underlying fault lines in the Court’s student speech cases and its First Amendment jurisprudence more generally. Although in many ways Mahanoy seems like a simple—and silly—case, it raises complicated questions not only about the proper scope of school authority but also about the rights of minors more generally, the distinction between public (or political) and private speech, protections for harassment and bullying, and the constitutionality of restrictions on lewd or profane speech. An ad hoc approach allows the Court to dodge these questions in the name of the “special circumstances” of public schools.

Part I reviews the facts of the case and the opinions of the Third Circuit and Supreme Court. Part II examines the First Amendment fault lines the Court dodges by embracing an ad hoc inquiry granting schools “First Amendment leeway” to regulate off-campus student speech. These doctrinal fault lines are based both in the Court’s ordinary First Amendment jurisprudence as well as in its student speech cases specifically. Part III argues that the Court afforded schools “leeway” to regulate student speech wherever it might occur to paper over important doctrinal differences. This approach is distinct from a true proportionality inquiry that offers a potentially promising framework for evaluating student speech rights, provided that the Court does not lightly disregard bedrock First Amendment principles or afford unwarranted deference to school authorities.

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