U.S. Supreme Court Ruling Backs First Amendment Right
In case you missed it, on April 23 the U.S. Supreme Court ruled that a Pennsylvania school district violated a cheerleader’s First Amendment rights when it suspended her from the squad for F-word Snapchat posts.
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.
Questions by conservative and liberal justices indicated they were concerned about protecting wide-ranging student expression, including on contentious political or religious views, while at the same time allowing schools to address threats, bullying and other difficult situations that could arise outside the school environment itself.
“Can you punish her for cursing when she is walking to school? If you can’t punish her for doing that, are you punishing her here because she went on the internet and used a curse word related to what? Her unhappiness with the school and cheering?” Justice Sonia Sotomayer asked the school district’s attorneys
“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,” Justice Stephen 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.”
- 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.
Civil rights advocates say a ruling in favor of the school district would have brought a “tectonic shift” in young people’s right to free speech. This seems about right to me. If schools were allowed to sanction students for speech during their personal time, then most students probably would be sanctioned. We’re talking about teenagers here whose sense of right and wrong is still developing.
Posted by Dr. Steven Mintz, The Ethics Sage, on June 24, 2021. You can sign up for his newsletter and learn more about his activities at: https://www.stevenmintzethics.com/. Follow him on Facebook at: https://www.facebook.com/StevenMintzEthics and on Twitter at: https://twitter.com/ethicssage.