Cheerleader’s First Amendment Snapchat post case heads to the Supreme Court

The court has been asked to rule on whether students can be disciplined for their off-campus social media posts.

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The Supreme Court is being urged to hear a case involving a Pennsylvania student whose school suspended her from cheerleading for a year after she posted “Fuck school, fuck softball, fuck cheer, fuck everything” to Snapchat with a photo of herself giving the middle finger.

The student (who is identified as B.L. in court documents) posted the message and photo to Snapchat in the spring of 2017 after learning that she had failed to make the varsity cheerleading squad. Her legal team described the snap as “a momentary expression of frustration, voiced by a disappointed student.”

But after another student took a screenshot of B.L.’s snap and showed it to one of the cheerleading coaches, B.L. was suspended from cheerleading for an entire year with several coaches deciding that the snap had violated team and school rules.

B.L.’s parents responded by challenging the suspension and suing the school district on her behalf. And in June 2020, they won a victory in the United States Court of Appeals for the Third Circuit in Philadelphia with the court ruling that the snap was protected under the First Amendment.

“B.L. created the snap away from campus, over the weekend, and without school resources, and she shared it on a social media platform unaffiliated with the school,” U.S. Circuit Judge Cheryl Ann Krause wrote in the court’s opinion.

The school had argued that by agreeing to the cheerleading squad’s “Respect Rule,” B.L. had waived her free speech rights.

But Krause wrote that this rule “would not cover a weekend post to Snapchat unconnected with any game or school event and before the cheerleading season had even begun.”

We obtained a copy of the United States Court of Appeals for the Third Circuit in Philadelphia’s opinion for you here.

The school district is now urging the Supreme Court to hear the case and provide school administrators across the US with a definitive ruling on whether students can be disciplined for off-campus speech.

And at its first private conference after the holiday break next month, the Supreme Court will consider whether to hear the case – Mahanoy Area School District v. B.L., No. 20-255.

The key precedent for the case is 1969’s Tinker v. Des Moines Independent Community School District, 393 U.S. 503 where the Supreme Court ruled that students couldn’t be prohibited from wearing black armbands to protest the Vietnam War but that disruptive speech could be punished.

“Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), ever allows schools to address off-campus speech presents a quintessential issue for review,” the school district wrote in its brief.

“The question presented recurs constantly and has become even more urgent as COVID 19 has forced schools to operate online,” the school district added. “Only this Court can resolve this threshold First Amendment question bedeviling the Nation’s nearly 100,000 public schools.”

We obtained a copy of the school district’s brief for you here.

The Pennsylvania School Boards Association also asked the Supreme Court to hear the case and argued that the decision by the United States Court of Appeals for the Third Circuit in Philadelphia “renders schools powerless whenever a hateful message is launched from off campus.”

We obtained a copy of the Pennsylvania School Boards Association’s brief for you here.

B.L.’s brief in opposition argues that the United States Court of Appeals for the Third Circuit in Philadelphia’s decision is “plainly correct” and that allowing a school to discipline a student for “spontaneous, non-threatening, non-harassing expression is contrary to our First Amendment tradition.”

Additionally, the brief in opposition warns that “permitting school officials to regulate student expression that occurs on a weekend, off-campus, with no specific connection to the school would severely diminish students’ free-speech rights in the world at large.”

We obtained a copy of B.L.’s brief in opposition for you here.

The Supreme Court’s consideration of the case follows numerous examples of students being disciplined because of what they have posted online.

In its recently published annual report on college speech codes, the Foundation of Individual Rights in Education (FIRE) noted that there has been a significant rise in cases of free speech violations at colleges and universities over the past few months and argued that the shift to online learning amid the coronavirus pandemic was to blame.

“As Zoom classes replace the quad, half of the surveyed colleges maintain policies that impermissibly restrict online speech – including almost 200 public institutions bound by the First Amendment,” FIRE wrote about the report.

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