Student Free Speech Following the Supreme Court’s Cheerleader Decision

Following the U.S. Supreme Court’s decision in Mahanoy Area School District v. Levy, 141 S.Ct. 2038 (2021), courts have grappled with applying First Amendment freedom of speech law in the context of off campus student speech that implicates potential disciplinary interest relative to the school environment. Mahanoy, often referred to as “the cheerleader case” found that the school district in that case had violated the student’s free speech rights when it disciplined her for vulgarity laden social media postings critical of the cheerleading squad. For more discussion of the Mahanoy decision, please review our Firm’s legal update on that decision.

The following is a discussion of some interesting and noteworthy decisions applying the Supreme Court’s Mahanoy analysis.

Cheadle v. North Platte R-1 School District, 555 F.Supp.3d 726 (W.D. Missouri)

In this case, the mother of a 7^th grade student filed suit against the school district her daughter attends alleging that both the student’s and the parent’s First Amendment rights were violated when the District imposed a 45 day athletic suspension. The student posted a video of herself consuming alcohol in her bedroom on a Sunday. Later that day, her mother found her “on the bedroom floor, incoherent, and on the verge of blacking out”. She was taken to the hospital where she was treated and returned to school after missing one day.

After finding her daughter and taking her to the hospital, the student’s mother posted several messages on the social media site connected with her daughter’s video in which she criticized those who had encouraged her daughter’s behavior concluding with the ominous statement of “just know I know who you are”.

The school administration was provided copies of the student’s and her mother’s postings on social media and imposed a 45 day suspension under the student athletic code. The mother sued, claiming that the suspension violated her daughter’s First Amendment right to post the video and her First Amendment right to post her comments.

The Court distinguished the Supreme Court’s Mahoney decision by noting that in Mahoney the conduct at issue was the social media posting – i.e., the Speech. Conversely, in this case, the conduct at issue was the alcohol consumption, not the social media postings. This illustrates an important distinction between the speech being the source of evidence of prohibited conduct as opposed to efforts to treat the speech itself as prohibited conduct.

Chen v. Albany School District, 56 F.4^th 708 (9^th Cir. 2022)

In Chen, the 9^th Circuit Federal Court of Appeals (California) reviewed and rejected a free speech claim brought by a student who had been expelled from high school for social media posts made while off campus. The posts involved “vicious invective that was targeted at specific individuals and that employed deeply offensive and insulting words.” The court noted too, as to the violent imagery, that “even if subjectively intended only as immature attempts at malign comedy” were objectively alarming.

The court rejected the student’s free speech claims by first evaluating whether the student’s speech, if it occurred on school grounds, would be protected speech such that disciplining the student would be in violation of his free speech rights. In so evaluating, the court determined that the nature of the “speech” did not “contribute to the marketplace of ideas” and that, given the disturbing and violent content directed at specific individuals, the court determined that, citing Mahanoy, “[n]othing in the First Amendment would even remotely require schools to tolerate such behavior or speech that occurred under its auspices.” In short, the speech at issue was not protected speech.

The court then turned to the question of whether the speech that occurred off campus, even though not protected speech, was nonetheless beyond the jurisdiction of the school. The student argued that the social media posts were on a private social media account, create by another student and accessible only by a select group of friends. Therefore, he argued, the content was not intended for nor appropriate for review by school administrators or others at the school. However, not the least bit surprising, the contents of the social media page made their way to the high school, including to the attention of those students identified in the more visceral posts. The resulting disruption was palpable, including law enforcement involvement relative to some posts that were reasonably perceived as threats. The Superintendent posted the following statement on behalf of the district:

From my meetings with the students that were shown in the postings and conversations with several parents of the students, the impact has been significant and ongoing. Parents stated they are afraid for their children’s safety on campus and off campus. They stated that their children are traumatized and cannot study, and that they are afraid to be in the same class or on the same campus as the students who posted. Several of the students’ grades dropped because they were unable to attend school or some classes, and they are now worried about failing their classes. Some students could not return to school for several days. Most of the students say they are hurt, angry and feel betrayed. One parent reported to me that his daughter has lost sleep, that sometimes she can talk about the incident and sometimes she is too upset to talk at all about the postings.

Following the revelation of the social media account, several students organized a “restorative justice session” to address some of the racial and sexual components and overall violence of the account. The session was attended as well by over 100 protesters and ultimately ended with two of the students who “followed” the private page being assaulted. The “private” content not only made its way into the school community, it created significant disruption and fallout.

The court noted these facts and that “given the ease with which electronic communications may be copied or shown to other persons, it was plainly foreseeable that [student’s] posts would ultimately hit their targets, with resulting significant impacts to those individual students and to the school as a whole.” As such, the school had an interest – even an obligation – to take corrective action under its bullying and harassment policies. The two primary participants in the social media account were expelled and the court rejected their free speech arguments in challenge of their expulsions.

Conclusion

When the Supreme Court issued its decision in Mahanoy, the Court made it clear that off campus speech could be regulated, but only to the extent that it involves the components of disruption or other impact to the school community. Ultimately, the balance must be struck between schools inserting themselves in loco parentis as to any and all speech uttered by students provided only that the speech ultimately makes its way into the school. More is needed and, as these cases illustrate, the additional components include either speech that serves as evidence of conduct that violates policies or speech that once circulating in the school reasonable creates disruption and, as in the case with Chen violates the rights of other students to be safe in their school environment.

As always, these social media cases remind us that posting on social media accounts, whether private or not, should be done with the expectation that the contents will be available to an audience outside of the select private group and that students (and in many cases adults as well) are well-advised to consider that reality when utilizing social media.