The U.S. Supreme Court has held that the 1st amendment protects a student’s off-campus vulgar speech criticizing a school, and it may not discipline her.
Public schools may have a special interest in regulating some off-campus student speech, but that special interest and power is limited. Previously, in Tinker, the Court indicated that 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.” The special characteristics that give schools additional license to regulate student speech do not always disappear when that speech takes place off campus. Circumstances that may implicate a school’s regulatory interests include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.
However, courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. Further, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy. Taken together, several features of off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.
The school violated B. L.’s First Amendment rights when it suspended her from the junior varsity cheerleading squad. B. L.’s posts are entitled to First Amendment protection. The statements made in B. L.’s Snapchats reflect criticism of the rules of a community of which B. L. forms a part. And B. L.’s message did not involve features that would place it outside the First Amendment’s ordinary protection.