During the 2019/2020 school year, Mr Laggert took a photograph himeself, wearing a shirt stating "You Can't Be Christian and Gay", while standing next to another student, Ms Chainey. Ms Chainey is president of the high school's Gay/Straight Alliance (the Alliance). In the photograph, both Ms Chainey and Mr Laggard are standing under a banner reading: "Pleasantville High School -- Gay/Straight Alliance Day of Tolerance." The photograph was taken in a school classroom after school hours during an "Open House" planned by the Alliance.
That night, Mr Laggert posted the photograph with a caption to his Twitter feed. The caption read: "Screw their Day of Tolerance." The posting was done after school hours and from a location off school premises using Mr Laggert personal device.
As a result of the Twitter post and Ms Chainey objections expressed to the high school principal, Mr Falwell, to the photograph and the caption. Mr Laggert was immediately suspended.
Mr Laggert file an action in district court against the school district claiming that the school district had violated his right of free speech under the First Amendment. The district court ruled in Mr Laggert's favor. Upon appeal, the appellate court upheld the decision of the district court. The appellee, Pleasantville Township School District, petitioned for a writ of certiorari. The writ was granted.
In Tinker this court held that it is not the case that "students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Nonetheless, student free speech rights are not "coextensive with those of adults" and can be curtailed under specific circumstances. Per Tinker only, student speech that "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school," can be prohibited.
In subsequent decisions, this court has imposed further limitations on student speech. Among these limitations are speech which is "offensively lewd and indecent speech at the assembly", speech included in "curricular student newspapers established by public schools", and speech that "advertises or promotes use of illegal drugs" at a school-sponsored and school-supervised event, even if that event takes place off of the school grounds in traditionally protected venues, such as public sidewalks and parks. Bethel School Dist. No. 403 v. Fraser (1986), Hazelwood School Dist. v. Kuhlmeier (1988), Morse v. Frederick (2007). These cases set the limits of the regulation of student speech by their schools, stating "such regulation [allowed by this opinion of the court] as standing at the far reaches of what the First Amendment permits." Morse (Alito, J. concurring in judgment).
Consistent with the limitations on school regulation of student speech set forth in Morse, this court found in Mahanoy, that a student's vulgar speech, more explicit than in the case here, expressed while off schools grounds and outside the school day was a valid exercise of that student's free speech rights.
There are two characteristics of the instant case that differentiate it from Mahanoy: 1) the image and likeness of another student was used in the Twitter post without her consent; 2) the post contains an unstated portion of a banner reading: "Pleasantville High School -- Gay/Straight Alliance Day of Tolerance." Ms Chainey's image and likeness, contained in the photograph, is not in this case being used for economic gain or benefit. The use of Ms Chainey's image is not incidental, not the use commonly found in photographs taken by tourists that may include other individuals without their consent and posted to a variety of social media venues. Rather, the use of Ms Chainey's image was deliberate. Similarly, the inclusion of the banner was deliberate. One might argue that including another student and identifying the school in the photograph would constitute a "targeting" of both the student and the school. [1]
Yet, the photograph caption "Screw their Day of Tolerance" is not comprehensible without the inclusion of at least that portion of the banner including the words "... Gay/Straight Alliance Day of Tolerance." The banner provides the context that allows the viewer of the photograph and reader of its caption to clearly understand the meaning of "their" and "Day of Tolerance". Indeed, the deliberate inclusion and prominence of the image of the president of the Alliance, Ms Chainey, and the banner determine that the intent of the "tweet" is political speech, clearly critical of the event and of the sponsoring student organization, the Alliance. The crudity of expression does not change or diminish the expression of a position or opinion on a subject of considerable political discussion at this time. Thus, the characteristics of the instant case that differentiate it from Mahanoy are probative that Mr Laggard's speech was political speech.
Characteristics that the instant case has in common with Mahanoy include: 1) speech took place outside of school grounds and hours; 2) not during a school-sanctioned or school-supervised event or activity; 3) student used their personal device, not a school issued or school owned item; 3) post was to private, third-party service, unaffiliated with the school; 4) post was to a private list of "followers", each of whom took action in order to receive "tweets" from the plaintiff; 5) speech is criticism, not incitement or agitatation against a specific individual or institution; 6) speech did not constitute a call to violent or illegal behavior; 7) the speech "did not amount to fighting words. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)"; 8) the speech though in poor taste, indeed vulgar, "was not obscene as this Court has understood that term. See Cohen v. California, 403 U.S. 15, 19–20 (1971)."; 9) the speech would not have come to the attention of either the high school or Ms Chainey without the intervention of a third-party.
Given the numerous shared characteristics and mitigating nature of the differences between the instant case and Mahanoy, the precedent established by this court in Mahanoy applies.
Finally, regarding the Guidelines, the students, among others, were required to attest to having read and understood the Guidelines. The school district did not ask or require that students agree to abide by the Guidelines. Therefore, the students are not bound by the Guidelines. Relieved of a duty to comply with the Guidelines, we set aside any consideration of the Guidelines themselves.