Because public universities are bound by the First Amendment, they may not suspend, expel or otherwise punish students who use offensive speech that is protected by the Constitution. In fact, the U.S. Supreme Court stated in Tinker v. Des Moines (1969) that for a public educational institution “to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
The Supreme Court affirmed this position more recently in Mahanoy v. B.L. (2021), declaring that public educational institutions have “an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.” This includes online expression that occurs off campus. The Supreme Court reasoned that educational institutions have a role in facilitating the free exchange of ideas, which shapes public opinion and informs public officials about the will of the people.