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Prof. Wolff: The Supreme Court’s First Amendment decision leaves vague the boundaries of its protection

June 24, 2021

Prof. Wolff stated that while the decision is “good,” the opinion doesn’t offer much guidance for the future of the First Amendment in schools.

In Mahanoy Area School District v. B.L., the Supreme Court held that the district’s decision to suspend Brandi Levy from the cheerleading squad for posting to social media – outside of school hours and off campus – vulgar language and gestures critical of the school violates the First Amendment.

The University of Pennsylvania Carey Law School’s Jefferson B. Fordham Professor of Law Tobias Wolff shares his insights on the decision:

The Supreme Court made the right decision when it protected the speech rights of the student in Mahanoy Area School Dist. v. B.L., but the Court’s opinion offers far less guidance than it should. Instead of giving educators and students a clear set of rules and standards explaining when schools can exercise control over speech by students outside of school, the Court identified a set of nebulous factors to consider and left clarity as a future goal.

The Court did emphasize that out-of-school speech ordinarily cannot be controlled by school officials, which is good. But free speech often suffers when the boundaries of its protection are vague, and that is where the Court leaves us today.

Wolff is also the Deputy Dean of Alumni Engagement and Inclusion. He writes and teaches in the fields of civil procedure and complex litigation, the conflict of laws, constitutional law, and LGBT rights and has served as pro bono counsel in many civil rights cases seeking equal treatment under law for LGBT people.