Public school speech case is potential watershed moment for cyberbullying

Ben Holden
An upcoming U.S. Supreme Court case will be a major test of the First Amendment rights of K-12 public school students as well as the authority of school administrators to discipline students for cyberbullying, according to Benjamin Holden, a teaching associate professor of journalism and media law scholar who studies free speech issues. (Photo by L. Brian Stauffer.)


A U.S. Supreme Court case set for oral argument next week will be a major test of the First Amendment rights of K-12 public school students and school administrators’ power to discipline them for cyberbullying, according to Benjamin Holden, a teaching associate professor of journalism and media law scholar who studies free speech issues.

The case Mahanoy Area School District v. B.L. will determine whether public school officials can regulate the speech of K-12 students that occurs outside the physical boundaries of a school’s campus but also could “substantially” or “materially” disrupt the work and discipline of the school, or “interfere with the rights of others,” said Holden.

The April 28 oral argument will precede a written Supreme Court decision later in the year that will become “precedent”—the controlling legal standard—for all K-12 public school students, teachers, and administrators. The case will not apply to private school students or college students.

The conflict originated from a Pennsylvania teenager’s profane social media post venting her frustration over being cut from the varsity cheerleading squad and her subsequent disciplining by school officials. The teen’s family sued the district and won on First Amendment grounds. The school district appealed, and the U.S. Court of Appeals for the 3rd Circuit ruled in favor of the teen.

The 3rd Circuit ruling only applies to Pennsylvania, New Jersey, and Delaware. But the June 30 ruling signaled a deepening national “circuit split” among federal courts whose decisions are increasingly inconsistent in their application of the First Amendment to off-campus speech, according to Holden.

“This circuit split sets the stage for the Supreme Court to decide, once and for all, whether and how the precedent set by the 1969 school speech case Tinker v. Des Moines Independent Community School District applies to internet speech, which of course did not exist when Tinker was decided,” Holden said.

The case was accepted by the U.S. Supreme Court in January after the 3rd Circuit decision departed sharply from Tinker, holding that K-12 public school officials may never regulate student off-campus speech.

According to Holden, the implications of Mahanoy Area School District v. B.L. go beyond free speech issues.

“This case is not about a teenager and her speech rights,” said Holden, who is also the co-author of an amicus brief that has been filed with the U.S. Supreme Court that proposes specific standards under which public K-12 schools may regulate off-campus speech such as messages sent or posted via social media. “This case is about the collision of free speech and cyberbullying—racial bullying, gender bullying, LGBTQ bullying—and what recourse schools have in stopping abusive online behavior committed by students against other students, teachers, and administrators that occurs online.

“The bigger issue at stake is this: Will school administrators be given clarity on the issue of what constitutes punishable cyberbullying by public school students and what should be protected speech?” Holden said. “That’s the real issue.”

If the Supreme Court upholds the 3rd Circuit’s decision, then a public school student using a racial epithet online, for example, or even across the street from the school, would be constitutionally protected, and the school district would have no recourse to discipline the student, Holden said.

“If you’re a school district, that is more than a little dangerous,” he said.

In the amicus brief, Holden and co-authors propose a three-part test for when the Tinker precedent should apply to student online speech that originates from an off-campus location.

“Our test supports the free-speech rights of students, while also offering bright lines for schools to discipline students for engaging in cyberbullying,” he said. “Speech that’s about a matter of public concern or the critique of the school or its officials, for example—that’s still protected speech. We took care to ensure that the school has some ability on appropriate facts to discipline cyberbullies, primarily when targeting other students, or when they’re engaging in online harassment around race, gender, sexual orientation, or just downright cruel behavior toward others.”

It’s impossible to be certain how the court will rule, Holden said.

“Justices Alito and Thomas have very well-developed theories about the concept of ‘In loco parentis,’ the idea that schools stand in the place of the parent,” he said.

Thomas’ view is that public K-12 teachers and school officials enjoy “quasi-parental speech-restricting authority” over their students, while Alito holds the opposite view, Holden said.

“We also have several new justices who haven’t weighed in as clearly on constitutional speech questions, so it’s difficult to predict the contours of the final opinion,” he said. “But the fact that they accepted a case with a flat rejection of school authority to regulate internet speech, after repeatedly refusing to take up cases with more nuanced lower court opinions, should give you some clue about what the court is thinking.

“That said, the First Amendment makes strange bedfellows among the justices.”

It’s also an open question as to how expansive or narrow the high court’s ruling will be, Holden said.

“Will they reverse and remand, saying the 3rd Circuit erred and we should refer to Tinker for future internet speech cases, or will they formulate a new test that updates the somewhat archaic one in Tinker?” he said. “My hope is the latter. I think the justices want to settle this issue for school administrators. I hope they directly answer the difficult questions related to student social media speech, and clearly protect worthy student speech from administrative overreach, while also protecting kids against cyberbullying.”

Editor’s notes: To contact Benjamin Holden, call 706-332-8426; email

Phil Ciciora, Business and Law Editor, University of Illinois News Bureau

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