Supreme Court to Hear First Amendment Case Arising Out
of Cheerleader's Profane Snapchat
The U.S. Supreme Court granted certiorari on Jan. 8, 2021 agreeing to hear the appeal of B.L. v. Mahanoy Area School District, 964 F.3d 170 (3rd Cir. 2019). The appeal is poised to produce significant implications for a public school's ability to regulate and punish students' online speech and bring the body of jurisprudence regarding students' First Amendment rights into the digital age.
The case arose in Pennsylvania in 2017, when B.L., a minor student of the Mahanoy Area School District was removed from the Mahanoy Area High School cheerleading squad when her coaches became aware of a Snapchat B.L. had published disparaging the cheerleading squad. At the time of posting the Snapchat, B.L. was a rising sophomore who had participated on the school's junior varsity cheerleading squad the previous season. Prior to the start of B.L.'s sophomore year, B.L. and other aspiring cheerleaders were required to try out for the cheerleading squad for the upcoming season. B.L. did not make the varsity squad and once again was assigned to J.V. However, an incoming freshman was given a spot on the varsity squad.
To express her displeasure with the results of the tryouts, B.L. took to Snapchat with another student. Together, off of school property and on a weekend, the two girls posed for a picture with middle fingers raised and added the caption: “F–k school, f–k softball, f–k cheer, f–k everything.” As the post was viewed by several of B.L.'s Snapchat followers, the post was brought to the attention of B.L.'s cheer coaches. Consequently, the coaching staff suspended B.L. from the cheerleading squad for the upcoming season for publishing disrespectful and negative information about the school and the cheerleading squad, which the coaches regarded as violations of cheer team rules.
After unsuccessfully petitioning the school board to reinstate B.L. to the cheer squad, B.L.'s parents filed suit in the U.S. District Court for the Western District of Pennsylvania alleging that the district had infringed on B.L.'s First Amendment rights to free speech. B.L. v. Mahanoy Area Sch. Dist., 376 F. Supp. 3d 429 (W.D. PA 2019). The District Court agreed with B.L., and granted her motion for summary judgment against the school district. The school district appealed the decision to the U.S. Court of Appeals for the Third Circuit.
Third Circuit's Analysis
The Third Circuit upheld the District Court's ruling after a thorough First Amendment analysis. First, the Third Circuit easily determined that B.L.'s Snapchat was “off-campus speech,” thereby affording the school district less power to regulate it. 964 F.3d 170, 180. The Third Circuit reached this conclusion by acknowledging that the Snapchat was made off of school property, over a weekend, and without the use of school resources or materials. Id. at 180-81. Accordingly, the Third Circuit held that punishing B.L.'s speech exceeded the school's authority established by Bethel School District v. Fraser, which allows schools to regulate and punish “vulgar, lewd, obscene, or plainly offensive speech” in school. Id. at 181-83.
After disposing of the district's arguments under Fraser, the Third Circuit analysis shifted the issue should be addressed using the framework established by Tinker v. Des Moines and subsequent decisions. The focus of the Tinker analysis is whether the student speech at issue is likely to create a “substantial disruption or material interference with the school.” Id. at 184. In its opinion, the Third Circuit recognized that other jurisdictions have applied Tinker to off-campus, digital student speech. Id. at 186-88. However, the Third Circuit declined to follow suit in applying the Tinker framework, stating that the other circuits to do so usually did so in cases where student speech constituted a true threat of violence or harassment, and doing so in B.L.'s case would result in an overbroad expansion of a school's authority to regulate speech. Id. at. 187.
Instead, the Third Circuit declined to apply Tinker, and analyzed B.L.'s speech on Snapchat solely under the district's own rules and policies. Ultimately, the Third Circuit concluded that B.L.'s speech did not violate cheer team rules, as the rules as they were written only prohibited “foul language and disrespectful conduct” at games or school events, during the season, leaving the district no recourse to punish B.L. for her Snapchat. Id. at 192-93.
Following the Third Circuit decision, the school district petitioned the U.S. Supreme Court for a writ of certiorari. The writ was granted and the Supreme Court will hear the school district's appeal.
If the Supreme Court adopts the Third Circuit's conclusion, there may be serious implications for a school district's ability to regulate and punish off-campus, online speech. By definitively removing student online speech from the framework of Tinker, public schools' authority to regulate and punish students' off-campus, online speech will be greatly diminished. Without the ability to argue that a student's non-threatening online speech is likely to create a “substantial disruption” at school, administrators may not preemptively punish student speech. However, the Third Circuit addressed this concern by stating that its ruling is not intended to limit a school's ability to punish disruptive speech or expressive behavior within the school context. Id. at 190.
While the Third Circuit analyzed B.L.'s speech within the scope of the school district's own rules and ultimately concluded that B.L.'s speech was not prohibited, it is important to note that if the Supreme Court adopts the Third Circuit's rejection of Tinker's applicability to online speech, districts may not retain their authority to regulate off-campus speech simply by adopting better rules. The Third Circuit opinion briefly acknowledges the school district's argument that B.L. waived her rights to free speech as a condition to joining the cheer team by agreeing to the team's rules. Id. at 192. While ultimately concluding that B.L. did not waive her First Amendment rights as a condition to participating on the cheer squad, the Third Circuit warns of the dangerous constitutional pitfalls of conditioning participation in a beneficial program on a waiver of First Amendment rights.