Left for the Future, Solved in the Past: A Test for School’s Ability to Regulate Student Speech Off-Campus
By Monica Miecznikowski
In 2021, the Supreme Court of the United States released on opinion regarding the First Amendment rights of a high school student, Brandi Levy, who had been suspended from the school’s junior varsity cheer team.[1] The suspension came after she posted a photo on snapchat depicting her flashing the middle finger and captioned, “Fuck school fuck softball fuck cheer fuck everything”.[2] Levy was upset after having not made the varsity team and posted the photo in frustration.[3] The school felt a suspension was warranted because the language and hand gesture violated both team and school policy.[4] Levy felt that because the post had been made after school hours and not on school property, the school had no right to regulate her speech.[5] The case reached the Supreme Court, an resulted in a near unanimous eight to one decision in favor of Levy, but lower courts and schools were left wanting more guidance.
Courts have found that schools generally have the right to regulate student’s speech while they are on campus. However, with the advancement of technology, speech is no longer tethered to a time or place. A person can type an opinion and near instantly that view can be heard across the country. This complication was the heart of Levy’s suit and the Supreme Court struggled to find a guiding principle to resolve the issue.
The Court highlighted three features of these types of cases that are significant. First, the court felt parents generally should have the responsibility of regulating a student’s off-campus speech.[6] Second, they were concerned that allowing schools to regulate off-campus speech would extend virtually to everything a student says or does.[7] Third, they found merit in the school’s interest in regulating off-campus speech because schools need to be able to control actions that would substantially disrupt school function.[8] The Court ultimately left it to “future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference” in deciding the case.[9]
While the Court may have felt creating a guiding principle was for another time, they may have in fact already created one. A similar situation can be found in the evolution of personal jurisdiction. Originally, courts only had jurisdiction to hear a claim against a defendant if the defendant was present in the state, was a resident of the state, or owned property in the state (in special circumstances).[10] Once technology advanced, business across state lines was increasingly common, travel was easier, and eventually the internet created avenues for a person to commit an act in one state and the effects to occur in another.[11] With this advancement the Court began using a new test, known as minimum contacts, where a defendant could be tried in a jurisdiction that otherwise would fail the previously mentioned factors, so long as the defendant had sufficient contacts to the jurisdiction, the claim arose from those contacts, and having the suit in that jurisdiction would comport with traditional notions of fair play and substantial justice.[12]
It seems this test would also apply to the situation of Levy’s snapchat. The first step would be to ask whether Levy had sufficient contacts with the school, that is, did she purposefully avail herself to consequences from the school. This would be more than showing the effects were felt at school as explained in World-Wide Volkswagen Corp. v. Woodson, but rather it had to have been foreseeable that the consequences of her actions would be felt at school, along with something extra to demonstrate purposeful availment.[13] In this instance, the Court would weigh whether Levy’s actions were consistent with someone trying to disrupt school function or acting with reasonable certainty and hope that it would bleed into school activities. The second step would be to demonstrate that the breech in school policy came directly from the student’s availment, i.e., did the effects result from the student posting the photo. And finally, the Court would weigh the school’s interests against the burden that would be put on the defendant to regulate such conduct. In this case, the possible school disruption from impersonal distasteful language versus a student’s right to speak her mind off-campus.
These personal jurisdiction inquiries are not far off from the questions and concerns raised by the Court in their Opinion,[14] and they importantly acknowledge the consequences of the ever-accessible internet forum. While there are valid concerns that minimum contacts is not precise enough to provide absolute consistency in the courts,[15] it at least provides some guidance in the wake of the Court’s indecisive opinion. Moreover, by adopting an already existing test, courts would have ample case law to reference and would be able to provide schools with more guidance of when they can and cannot regulate speech.
Before attending Vanderbilt Law School, Monica Miecznikowski received a B.S. in Sociology of Law from the University of Minnesota. After graduation she will be returning to her hometown of Chicago to practice Litigation.
[1] Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021).
[2] Id. at 2043.
[3] Id.
[4] Id.
[5] Id. at 2044
[6] Id. at 2046
[7] Id.
[8] Id.
[9] Id.
[10] See generally, Douglas D. McFarland, Drop the Shoe: A Law of Personal Jurisdiction, 68 Mo. L. Rev. 753
[11] See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1979).
[12] Id.
[13] Id. at 298.
[14] Mahanoy Area Sch. Dist., 141 S. Ct. at 2046; id. at 2063 (Thomas, J., dissenting).
[15] McFarland, supra note 10, at 777-81.