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“Mean Girls” and the First Amendment

“dance like no one’s watching and socially post like you’ll be called to testify!”

Yesterday, April 28, 2021, the United States Supreme Court heard oral arguments regarding the intersection between “off-campus digital speech” and the First Amendment of the United States Constitution as applied to a 14-year-old cheerleader who posted a photograph of herself and her friend “giving the finger” and posting the “f-word” arguably directed to those responsible for not promoting her to the varsity cheerleading squad. The Mahoney Area High School responded to these screenshots communicated to approximately 250 students, by punishing the 14-year old cheerleader for her screenshots by barring her from the JV cheerleading squad for the year. The concerned parents then sued the school district alleging, in pertinent part, that their child’s “off-campus digital speech” was protected by the First Amendment and, as such, could not properly form the basis of the discipline the school district had imposed upon their daughter.
The case argued yesterday will accordingly be addressing the scope of the Supreme Court’s prior decision in the 1969 case of Tinker v. Des Moines Independent Community School District, which has been applied to protect students’ right to free speech while attending public school. The Supreme Court will now be considering whether or not these free-speech protections should be applied to “off-campus digital speech.” If so, the “punishment” enacted by the school district for this protected speech should be vacated and remedied; while it is not clear how the aggrieved cheerleader and/or her parents will be “made whole”, they would arguably be entitled to monetary damages, injunctive relief, and/or corrective actions moving forward. If the Supreme Court were to rule that the “off-campus digital speech” in this case was not protected by the First Amendment, the actions taken by the district will be upheld by the Court. Either way, this new Supreme Court case should provide school districts throughout the country with more guidance as to the intersection between the “freedom of speech rights” of each student and each school district’s recognized rights to regulate and punish the actions and omissions of their students including, but not limited to, their use of “off-campus digital speech” under appropriate circumstances. While these “appropriate circumstances” will probably require some nexus between the arguably protected off-campus speech and “school activities”, the time has now come for specific guidance regarding this important legal issue.
The case of Mahanoy Area School District v. B. L. will accordingly be providing all public school districts, students, parents, teachers, administrators, and education lawyers with more specific guidance as to what school districts can and cannot do in responding to a form of speech which obviously did not exist when our founding fathers agreed upon the text of our First Amendment; “off-campus digital speech” by students while they’re not physically attending school. We will keep “our people” informed as and when this issue of first impression is decided by our Supreme Court. Meanwhile, “dance like no one’s watching and socially post like you’ll be called to testify!”

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