The Court heard oral argument in this case on April 28. Here’s one synopsis of the argument.
B.L.’s attorney described the school’s proposed approach of extending Tinker to certain online conduct outside of school as using a “blunt instrument” that would effectively become a rule (rather than an exception) limiting First Amendment rights of public school students throughout the country. In contrast, the school district’s attorney characterized B.L.’s proposed approach as “Frankenstein’s monster of First Amendment doctrine” as lower courts would be forced to determine whether Tinkerapplied to a particular speech and, if not, apply traditional strict First Amendment doctrine to students with additional considerations in light of each student’s “youth and context.”
What This Means to You
As the National School Boards Association noted in a friend of the court brief, the Mahanoy question is especially important for school districts across the country because of students’ frequent use of social media. This becomes even more critical when assessing a school districts ability to respond to bullying that takes place online while away from school grounds. The Justices were carefully considering this possibility, with hypotheticals presented by Justices Sotomayor and Kagan speculating that, without applying Tinker to such online speech, a school district’s desire to respond to many occasions of student bullying likely would not reach the level of an ordinary First Amendment exception.
The Supreme Court’s decision, expected later this year, will provide some guidance for public school administrators on how free speech affects their ability to respond to online student speech. The oral arguments last week suggested, however, that the Justices may settle on a narrow ruling in this difficult case in order to avoid “writing a treatise” with broad implications for other situations.