By Courtney Dunn, of Segal McCambridge
In B.L. v. Mahanoy Area School District, the United State Court of Appeals for the Third Circuit previously held that B.L. a sophomore at Mahanoy Area High School, was protected by the First Amendment when she made a Snapchat story reading “Fuck school fuck softball fuck cheer fuck everything” along with a photograph of herself holding up the middle finger, and another that 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?”. Prompted by the denial of a spot on the varsity cheerleading team, B.L. aired her frustrations on the popular social media platform. The Snapchat story made its way to Mahanoy Area High School and the school faculty by way of concerned students. Once the school caught wind of B.L’s explicit response to having to spend another year on the junior varsity squad, the coaches decided to remove B.L. from the junior varsity team due to a violation of both team and school rules.
B.L. sued the Mahanoy Area School District in the United States District Court for the Middle District of Pennsylvania relying on three claims under 42 U.S.C. Section 1983: that her suspension from the team violated the First Amendment; that the school and team rules she was said to have broken are overbroad and viewpoint discriminatory; and that those rules are unconstitutionally vague. The District Court defended its reasoning for B.L.’s cheer suspensions, arguing that her speech was “vulgar, lewd, obscene, or plainly offensive” citing Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). Additionally, the School District asserted that B.L.’s snap chat story was likely to disrupt the cheerleading program, citing Tinker v. Des Moines Independent Community School District, 393, U.S. 503 (1969)
Ultimately, the Court disagreed with the District’s arguments regarding vulgar language, B.L.’s speech not expressing an opinion, and subjecting minors to profane speech. It decided that B.L.’s speech was protected under the First Amendment and that she did not waive her First Amendment rights when she joined the team. Her Snapchat did not violate the School District’s rule that prohibits foul language at games, fundraisers, and other events. Her Snapchat did not violate any of the other rules the School District had in place.
B.L. Speaks Out
Since then, B.L. addressed her decision to turn her flips on the field into flipping off the Mahanoy Area High School cheer squad during an interview with CNN on the “Smerconish” show. With her father by her side, B.L. explained, “I feel like I shouldn’t have been [punished] only because I wasn’t on school grounds and I wasn’t in any school attire.” She stated that the school rules which she had agreed to follow as a cheerleader did not specify what she can and cannot say “out of school and out of her uniform.” Though B.L.’s sentiment may appear a bit too simple at first, the standard appears to be as broad as she explained. The Court has been clear and consistent in its rulings regarding the do’s and don’ts of on-campus speech. However, the rules are less defined when it comes to off-campus speech, as B.L. lamented.
Pressure on the Supreme Court
Should the Supreme Court accept this case, it will face the challenge of creating a long-awaited standard for off-campus speech. B.L.’s attorney, a lawyer from the American Civil Liberties Union (ACLU), explained that there is a wider issue regarding the fact that Internet speech has the ability to reach a broader audience serving as a justification for censorship or punishment. Students should not be expected to adhere by rules that are unconstitutional in order to partake in a government sanctioned activity, such as a public high school cheerleading team. The ACLU attorney, likely along with many others following this line of cases, expects the Supreme Court to hold that “school’s authority to punish students for their speech is limited to speech that happens in school or has, [], some significant effect on school activities.”
This projected outcome begs a more pointed question which is, what exactly is considered a “disruption” when it comes to off-campus speech? The Supreme Court would be faced with defining whether a “disruption” would be defined in the literal sense of the word, such as foregoing the opportunity for other students to be able to partake in an activity, or something more broad, like compromising the semblance of teamwork that would have otherwise existed in a team-centric event. The latter would require a factual analysis on a case-by-case basis, depending upon how the fellow students subjected to an off-campus speech disruption reacted. B.L., for example, explained during her interview that some cheerleaders were on her side, while other cheerleaders agreed with her team suspension. Would this divide amongst the squad qualify as disruption in the eyes of the Supreme Court?
Furthermore, if the Supreme Court does take on B.L.’s case, it may do so during the new age of remote learning and online classes. If B.L.’s case is accepted, the Supreme Court may face the added pressure of creating and applying a new standard related to First Amendment rights during an unprecedented time of virtual learning. Creating a standard related to online, off-campus speech as it affects school activities becomes all the more difficult when school is online.
Mahanoy Area School District Snaps Back
Taking a page out of B.L.’s book, the Mahanoy Area School District also took to social media and posted a public statement to their Facebook group page. The school doubled down on B.L.’s punishment, raising concern as to whether the Third Circuit’s decision will “leave[] schools powerless to respond to speech that is directed at the school environment and would have a devastating effect on students’ well-being during the school day.” The School’s post does not acknowledge the fact that B.L.’s post was created off-campus, did not include any Mahanoy Area High School clothing or logos, and was released on a social media platform separate and apart from any Internet services provided or owned by the school.
Conclusion
B.L may surpass the varsity cheer team and make it all the way up to the Supreme Court and, in doing so, demand a long-awaited decision guiding off-campus speech and its place in the First Amendment.
Courtney Dunn is an attorney barred in New York and New Jersey. She has been with Segal McCambridge Singer & Mahoney for almost 2 years, where she is a member of the Sports, Recreation, and Entertainment Group. Before joining SMSM, Courtney completed a clerkship with The Honorable Judge Craig L. Wellerson in Ocean County, New Jersey.
