The key precedent comes from a different time. In 1969, in the case of Tinker v. Des Moines Independent Community School District, the Supreme Court allowed students to wear black armbands to protest the Vietnam War, but said the disturbing speech, at least on school grounds, could be punished.
Making distinctions between what students say on campus and off campus was easier in 1969, before the rise of social media. Currently, most courts allow public schools to discipline students for posting on social media, as long as they are linked to school activities and threaten to hinder them.
A split panel of three Third Circuit judges took a different approach, announcing that a categorical rule would appear to limit the ability of public schools to address many types of disruptive speech by students on social media, including racist threats and cyberbullying.
In a concurring opinion, Judge Thomas L. Ambro wrote that he would have judged the student on more restricted grounds. It would have been sufficient, he said, to say that his speech was protected by the First Amendment because it did not interrupt school activities. Most were wrong, he said, in protecting all speech off campus.
In a petition urging the Supreme Court to hear the school district’s appeal, the Pennsylvania School Councils Association said the line drawn by the Third Circuit was too crude.
“Whether a disruptive or harmful tweet is sent from the school cafeteria or after the student crosses the street on his walk home, it has the same impact,” the statement said. “The Third Circuit’s formalist rule renders schools powerless whenever a hateful message is sent off-campus.”
The student, represented by lawyers from the American Civil Liberties Union, told the Supreme Court that the First Amendment protected her “colorful expression of frustration, made on an ephemeral Snapchat on her personal social media, on a weekend, off campus, without threats or harassment or mention of her school, and that did not cause or threaten any school disruption. “