On June 30, 2020, in a precedential decision the Third Circuit Court of Appeals in B.L. v. Mahanoy Area School District, No. 19-1842 (3rd Cir. 2020) found that a school had violated student B.L’s First Amendment rights by suspending her from the JV cheer team due to a picture she posted on snapchat. The picture in question was posted over a weekend and away from school and depicted B.L. and a friend with their middle fingers raised. The picture had the caption “F*$# Cheer”. B.L posted the picture because she was frustrated that she did not make the varsity team. The cheer coaches decided that the “snap” violated team and school rules. The cheerleaders’ rules required cheerleaders to “have respect for [their] school, coaches… [and] other cheerleaders” and “avoid foul language and inappropriate gestures.” The coaches also felt that B.L violated a school rule the required student athletes to “conduct themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.”
First the Court addressed the issue of whether the snapchat constituted on or off campus speech and noted that the omnipresence of online communication poses challenges for school administrators and courts alike. The Court found that B.L’s snap fell “outside the school context” as it was “created away from campus, over the weekend, without school resources, and she shared it on a social media platform unaffiliated with the school.” Next, the Court analyzed whether the First Amendment allowed the school to punish B.L for her off-campus speech. According to the Court, “obscure lines between permissible and impermissible speech have an independent chilling effect on speech.” The School argued that its actions were justified because of its power “to enforce socially acceptable behavior” by “banning vulgar, lewd, obscene or plainly offensive speech by students.” In response, the Court cited the precedent that it was “unseemly and dangerous” for schools to control students’ free expression off campus by punishing them, and that those concerns “apply with equal force where a school seeks to control student speech using even modest measures, much less participation in extra-curricular activities, which ‘are an important part of an overall educational program.’” Because the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large, the Court held that the school was not justified in punishing B.L.
Addressing the new communicative technologies that now abound, the Court cautioned that though schools may want to seek to suppress speech they consider inappropriate, uncouth, or provocative, such efforts are not permitted “no matter how well-intentioned, without sacrificing precious freedoms that the First Amendment protects.” To assist both school administrators and students, the Court explained that a “test based on whether the speech occurs in a context owned, controlled, or sponsored by the school is much more easily applied and understood. That clarity benefits students, who can better understand their rights, but it also benefits school administrators, who can better understand the limits of their authority and channel their regulatory energies in productive but lawful ways.” Notably, the Court stated that it is “reserving for another day” the First Amendment implications of off-campus speech that threatens violence or harasses others.