School officials want to police student expression on the social media to curtail harassment, bullying and to establish standards of responsible speech. Critics fear that in protecting a school’s image, authorities would penalize legitimate criticism. In a case that could establish standards for regulating off-campus student speech, the U.S Supreme Court heard arguments concerning the discipline of a public high school student for using profane language in a Snapchat post. Law professor Noah Feldman, Bend Bulletin, April 28, 2021, writes, “The simplest solution would be for them [the Supreme Court] to adopt something like the ‘close nexus’ test used by most of the lower courts. This would leave student free speech issues to case-by-case adjudication.”
During the hearing, the justices seemed conflicted as they expressed concern about the justice of discipling the student at all. The attorney for the school district said Tinker should be applied to off-campus speech as potentially disruptive to school functioning, but Justice Samuel Alito expressed concern the the school could not regulate student speech on religion or politics, but speech could run afoul of authorities on other issues making any rule unclear. (Scotusblog, April 28, 2021, by Amy Howe)
Law professor Eugene Volokh, Reason, April 28, 2021, notes there was much discussion in the hearing of the heckler’s veto and its place in allowing or restricting student speech. “…the arguments highlight, I think, just how central the heckler’s veto question—,” writes Volokh, “can student speech be punished as disruptive because some people find its viewpoint offensive and threaten to attack the speakers or disrupt classes?—is to the off-campus/on-campus question (does the Tinker lower level of protection for speech apply to school outside school and outside school-operated activities?). And I hope that when the case is handed down (which ought to be by late June) the Court will tell us something about the heckler’s veto question.”