A Cheerleader’s Vulgar Message Prompts a First Amendment Showdown

A Cheerleader’s Vulgar Message Prompts a First Amendment Showdown

A Pennsylvania school district has asked the Supreme Court to rule on whether students may be disciplined for what they say on social media.

The Supreme Court next month will consider whether to hear the case of Mahanoy Area School District v. B.L., involving a student’s freedom of speech while off school grounds.
The Supreme Court next month will consider whether to hear the case of Mahanoy Area School District v. B.L., involving a student’s freedom of speech while off school grounds.Credit…Anna Moneymaker/The New York Times
Adam Liptak

By Adam Liptak

  • Dec. 28, 2020Updated 9:24 a.m. ET

WASHINGTON — It was a Saturday in the spring of 2017, and a ninth-grade student in Pennsylvania was having a bad day. She had just learned that she had failed to make the varsity cheerleading squad and would remain on junior varsity.

The student expressed her frustration on social media, sending a message on Snapchat to about 250 friends. The message included an image of the student and a friend with their middle fingers raised, along with text expressing a similar sentiment. Using a curse word four times, the student expressed her dissatisfaction with “school,” “softball,” “cheer” and “everything.”

Though Snapchat messages are ephemeral by design, another student took a screenshot of this one and showed it to her mother, a coach. The school suspended the student from cheerleading for a year, saying the punishment was needed to “avoid chaos” and maintain a “teamlike environment.”

The student sued the school district, winning a sweeping victory in the United States Court of Appeals for the Third Circuit, in Philadelphia. The court said the First Amendment did not allow public schools to punish students for speech outside school grounds.

Next month, at its first private conference after the holiday break, the Supreme Court will consider whether to hear the case, Mahanoy Area School District v. B.L., No. 20-255. The Third Circuit’s ruling is in tension with decisions from several other courts, and such splits often invite Supreme Court review.

In urging the justices to hear the case, the school district said administrators around the nation needed a definitive ruling from the Supreme Court on their power to discipline students for what they say away from school. “The question presented recurs constantly and has become even more urgent as Covid-19 has forced schools to operate online,” a brief for the school district said. “Only this court can resolve this threshold First Amendment question bedeviling the nation’s nearly 100,000 public schools.”

Justin Driver, a law professor at Yale and the author of “The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind,” agreed with the school district, to a point.

“It is difficult to exaggerate the stakes of this constitutional question,” he said. But he added that schools had no business telling students what they could say when they were not in school.

“In the modern era, a tremendous percentage of minors’ speech occurs off campus but online,” he said. “Judicial decisions that permit schools to regulate off-campus speech that criticizes public schools are antithetical to the First Amendment. Such decisions empower schools to reach into any student’s home and declare critical statements verboten, something that should deeply alarm all Americans.”

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