U.S. Supreme Court

Cheerleader’s Snapchat vulgarity had a message, Supreme Court says in 8-1 ruling against school

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The U.S. Supreme Court ruled Wednesday that a Pennsylvania school district violated a cheerleader’s First Amendment rights when it suspended her from the squad for F-word Snapchat posts.

Justice Stephen G. Breyer wrote the majority opinion. Justice Clarence Thomas was the only dissenter.

Commenters on SCOTUSblog noted that Breyer’s opinion used the full F-word, while Thomas’ dissent did not.

The majority rejected the bright-line rule used by a federal appeals court in the case—it ruled that schools can’t discipline students for off-campus speech. Instead, the majority opted for a more nuanced analysis that also favored the cheerleader.

The cheerleader, identified as “B.L.,” used the F-word after failing to make the varsity squad, meaning that she would remain on the junior varsity squad. She also failed to get her preferred position of right fielder when she tried out for a private softball team.

One Snapchat post had pictured the cheerleader and a friend holding up their middle fingers with the text, “f- - - school f- - - softball f- - - cheer f- - - everything.” The other post read: “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?” The posts could be seen by B.L.’s estimated 250 friends on Snapchat for 24 hours.

The post was written outside school hours and off campus. The cheerleader was a student at Mahanoy Area High School, a public school in Mahanoy City, Pennsylvania. The school decided to suspend B.L. from the squad because she used profanity in connection with a school extracurricular activity.

Public schools may be able to regulate some off-campus speech, but the special interests offered by the Mahanoy Area High School weren’t sufficient to overcome the cheerleader’s interest in free expression, the court said.

“The vulgarity in B.L.’s posts encompassed a message, an expression of B.L.’s irritation with, and criticism of, the school and cheerleading communities,” Breyer wrote.

“It might be tempting to dismiss B.L.’s words as unworthy of the robust First Amendment protections,” Breyer said. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

At issue in B.L.’s case was the reach of a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, which involved students suspended for wearing black armbands to protest the Vietnam War. The court ruled in Tinker that that public schools can regulate speech only if it would materially and substantially disrupt the work and discipline of the school.

The 3rd U.S. Circuit Court of Appeals at Philadelphia had ruled that Tinker does not apply to off-campus speech. The parties’ briefs, as well as those of amici, suggested softening the 3rd Circuit rule to allow for regulation of some off-campus behavior. Regulation might be needed, for example, in cases of severe bullying or threats or when students are learning remotely, briefs had suggested.

Breyer said the court hesitated to craft such a list, given the advent of computer-based learning. Instead, Breyer listed “three features of off-campus speech” that should be considered.

• Whether a school stands in the place of parents—in loco parentis—who aren’t there to protect and guide their children. “Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility,” Breyer wrote.

• Whether the regulation of speech would include all the student’s speech, both on- and off-campus. Courts should be more skeptical of a school’s efforts to regulate speech for 24 hours per day. In addition, “When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention,” Breyer wrote.

• Whether the school has an interest in protecting unpopular expression. “Schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it,’” Breyer wrote.

The school had a diminished interest in regulating B.L.’s speech because of several factors, Breyer said. The speech involved criticism of rules affecting B.L.’s community, her speech would be entitled to strong First Amendment protection if she was an adult, her posts appeared outside school hours from a location outside the school, she did not identify her school in her posts, and she transmitted her speech on a private cellphone to a private circle of Snapchat friends.

In his dissent, Thomas said the majority disregarded “150 years of history” supporting the school and reached an outcome based on “three vague considerations.”

The case is Mahanoy Area School District v. B.L.

Hat tip to SCOTUSblog, which had early coverage.

See also:

ABAJournal.com: “Afternoon Briefs: SCOTUS will consider cheerleader’s First Amendment case; former AG dies at 88”

ABAJournal.com: “Federal judge rules for cheerleader kicked off squad over Snapchat F-word post”

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