Erickson and Bunker on Waiting For Mahonoy: Examining the Still Unsettled Jurisprudence of Online Student Speech @m_bunker

Emily Erickson, California State University, Fullerton, and Matthew Bunker, University of Alabama, have published Waiting For Mahanoy: Examining the Still Unsettled Jurisprudence of Online Student Speech at 31 William & Mary Bill of Rights Journal 991 (2024). Here is the abstract.

In June 2021, the U.S. Supreme Court struck down a high school’s attempt to punish a cheerleader, Brandi Levy, for a Snapchat post that succinctly summed up her unhappiness with failing to make the varsity cheerleading squad: “fuck school fuck softball fuck cheer fuck everything.” The Court, in an 8-1 majority opinion written by Justice Stephen Breyer, engaged in a profoundly belated attempt to wrestle with the problem of online, off-campus student speech, which the Court had completely ignored for more than two decades as the online world became ubiquitous. Unfortunately, in B.L. by and through Levy v. Mahanoy Area School District, the Court’s opinion was written in Breyer’s characteristic First Amendment mode of providing little in the way of generalizable principles, instead offering vague pronouncements that seemed remarkably unhelpful for lower courts dealing with related student speech issues. In a majority opinion that was long on abstraction and strikingly short on actionable doctrinal standards, Breyer conducted an essentially ad hoc analysis that gave Levy a vastly undertheorized victory. Perhaps even more importantly, the Court, by granting certiorari given the relatively insignificant Mahanoy facts, effectively ignored much more contentious and challenging issues in student speech including threats, bullying, harassment, and hate speech. This Article critically assesses Mahanoy’s legacy, first offering a deep historical dive into the topic of student speech. It next explores the jurisprudential grounding of “in real life” (IRL) school speech law and the Court’s attempt to bring the First Amendment rights of students into the online sphere. Most importantly, the Article then breaks new ground by exploring the fallout from Mahanoy in the lower courts over the last several years. The post-Mahanoy lower court cases reveal a muddled legal landscape. As part of its exploration of Mahanoy’s fallout, the Article identifies several major problem areas in the law, including lower courts’ flawed analyses of the First Amendment rights of tangential participants in harmful online speech, the mismatch between IRL standards for school disruption as opposed to online expression, and the vexed question of the reasonable foreseeability of private online speech reaching and affecting others at the school. After a thorough analysis of the developing post-Mahanoy doctrine, the Article offers concluding perspectives on this vitally important area of the law.

The article is not yet available at the journal's website.