Though the Third Circuit was united in ruling for Ms. Levy, the judges disagreed about the rationale. The majority announced a categorical rule banning discipline for off-campus speech that seemed to limit the ability of public schools to address many kinds of disturbing communications by students on social media, including racist threats and cyberbullying.
Justice Breyer wrote that the appeals court had gone too far.
“Unlike the Third Circuit,” he wrote, “we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus. The school’s regulatory interests remain significant in some off-campus circumstances.”
“These include,” he wrote, “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”
Those issues required a more cautious approach than the one adopted by the appeals court, Justice Breyer wrote.
“We do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way,” he wrote. Schools, he said, can address, for instance, “substantial disruption of learning-related activities or the protection of those who make up a school community.”
Instead of applying a categorical rule, Justice Breyer said three factors should make courts wary of allowing schools to supervise what students say off campus: Parents rather than administrators are better suited to disciplining children away from school, the specter of round-the-clock surveillance is at odds with free speech values, and schools should teach students that unpopular speech is worthy of protection.
First, he wrote, “geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.”