When a high school freshman—disappointed that she hadn’t made her varsity cheerleading team—flipped off her school and dropped f-bombs on Snapchat, she couldn’t have known that the future of American First Amendment law hung in the balance of her middle finger.
The girl, known in pleadings as “B.L.,” was shopping with friends on a Saturday afternoon in 2017. She posted a selfie in her Snapchat story that included her best friend. The picture showed both girls extending the bird, with the caption “Fuck school fuck softball fuck cheer fuck everything.” A second post said, “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else?”
Among B.L.’s 250 online friends, a tattle-tale teammate placed a screenshot of the profane posts in a coach’s hands. The school in Pennsylvania threw B.L. off the junior varsity cheerleading team on the grounds that her post violated team and school rules, which the student acknowledged before joining the team. Those rules required that athletes “have respect for [their] school, coaches, . . . [and] other cheerleaders”; avoid “foul language and inappropriate gestures”; and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches . . . on the internet.”
B.L.’s parents appealed the decision, but the athletic director, school principal, district superintendent, and school board all sided with the Mahanoy Area School District. Their next step was to file a First Amendment lawsuit, which they won at both the district and circuit court levels.
The question of juvenile rights to free speech in public schools is not a new one. However, the current climate—from ubiquitous social media use to widespread remote schooling—puts the question is a notably new context. The lines between “in school” and “at home” have been blurred beyond recognition, and First Amendment law will need to adjust itself accordingly.
The controlling case law stems from the 1969 case Tinker v. Des Moines Independent Community School District, in which the Supreme Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Certainly, the facts giving rise to the Tinker case stand in stark contrast to those in B.L.’s case.
In Tinker, children of civil rights activists sought to protest the Vietnam War by wearing black armbands to school. A 7-2 majority of the Supreme Court ruled that “a mere desire to avoid the discomfort and unpleasantness” wasn’t enough to censor the students’ symbolic speech. The black armbands would not cause the kind of “substantial disruption” necessary to to allow the school to prohibit them. That standard—a balancing between students’ right of free speech and a limited right of schools to avoid disruption—became known as the “Tinker Test,” and it still forms the backbone of First Amendment law applied in school cases today.
As school districts began to adopt policies aimed at correcting societal ills—such as curbing drug and alcohol use and protecting victims of bullying and harassment—additional legal questions arose about students’ free speech rights. The bottom line: students have the same First Amendment rights that adults do when they’re off-campus. While they’re at school, their speech is still protected, but the schools have some limited right to censor.
The Third Circuit held that B.L.’s Snapchat story constituted “off-campus” speech; even though the boundaries of a school can extend past a physical school building itself, the facts here did not warrant such extension. Calling the on-campus/off-campus distinction “tricky from the beginning,” the Third Circuit acknowledged that “the difficulty has only increased after the digital revolution.”
Recognizing that students use social media constantly, for conversations ranging from the “high-minded” all the way to the “plain silly,” U.S. Circuit Judge Cheryl Ann Krause wrote for the Third Circuit that technology requires that the court “must carefully adjust and apply—but not discard—our existing precedent.”
As to B.L.’s conduct, Judge Krause and the rest of the three-judge panel found that the call had been an easy one, as B.L.’s conduct clearly fell outside the context of school. A student participating in a school-sponsored extracurricular activity may face limited free-speech rights, but one entirely on her own time does not.
The Third Circuit’s approach differs sharply from that used in other circuits. The Second, Fourth, and Eighth Circuits have all sided with school districts that disciplined students for inappropriate social media posts. The difference, though, was that in those cases, the posts involved threats of harassment, bullying, and violence. By contrast, a profane post by a disgruntled cheerleader posed no parallel risk.
Noting the consequences of any over-broad rule, Mahanoy Area School District asks the Supreme Court to reverse the Third Circuit’s decision or risk stripping thousands of school districts of a significant power to keep their student bodies safe. If SCOTUS upholds B.L.’s victory, the district contends, “schools would be in an intolerable position even if the Third Circuit left schools’ authority over off-campus threats or harassment unclear.” Without the high court’s help to clarify the rule in Mahanoy Area School District v. B.L., petitioners argue, the cost “cannot be overstated.”
The district also contended that B.L.’s snap wasn’t quite the easy call the Third Circuit deemed it had been. “B.L.’s speech [was not] innocuous or fleeting,” argued the district in its brief. “Because school athletics inherently implicate team morale, safety, and sportsmanship,” the district explained, “coaches need a freer hand to maintain order and cohesion.”
In a statement to the New York Times, Justin Driver, a law professor at Yale and the author of The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind, called judicial decisions permitting schools to regulate off-campus speech “antithetical to the First Amendment.”
“Such decisions,” Driver said, “empower schools to reach into any student’s home and declare critical statements verboten, something that should deeply alarm all Americans.”
When the justices reconvene after their holiday break, they will consider the case in their first conference of the new year. The current reality is not likely to be lost on the justices. Millions of American students are “attending” school from their homes, using hundreds of new technological platforms and interacting with friends, peers, and teachers only electronically. The COVID-19 pandemic has (perhaps permanently) blurred the lines between home and work, as well as home and school. The Court itself has been handling its work remotely, and if it grants certiorari in the case, those arguments are likely to be held telephonically. B.L.’s Saturday afternoon out with friends now seems like a bygone tale of yesteryear, but its effects may have lasting meaning for students in years to come.
Attorneys for the school did not immediately respond to email seeking comment.
“While legal issues remain around the First Amendment limits of schools’ authority over students’ off-campus speech, the courts are uniform in disallowing punishment for non-disruptive speech, like B.L.’s, which occurred away from school on her own time,” ACLU of Pennsylvania’s Legal Director Witold “Vic” Walczak said in a statement to Law&Crime. Attorneys with the ACLU are representing B.L. in this case.
Editor’s note: this story was updated post-publication with comment from the ACLU.
[Image via Stefani Reynolds/Getty Images]
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