Supreme Court

High School Cheerleader's Profane Social Media Rant Is Protected Free Speech, Says SCOTUS

First Amendment advocates prevailed in Mahanoy Area School District v. B.L.

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The U.S. Supreme Court ruled 8-1 today that a Pennsylvania public school district violated the First Amendment when it punished a high school freshman for posting a profane, off-campus rant on the social media site Snapchat about her failure to make the varsity cheerleading squad. "It might be tempting to dismiss [the cheerleader's] words as unworthy of…robust First Amendment protections," Justice Stephen Breyer wrote for the majority. "But sometimes it is necessary to protect the superfluous in order to preserve the necessary."

The matter of Mahanoy Area School District v. B.L. originated with these words: "Fuck school fuck softball fuck cheer fuck everything." They were posted to Snapchat on a Saturday night and were accompanied by a picture of B.L. (known by her initials in court filings because she was a minor at the time) and a friend with their middle fingers raised. To say the least, B.L.'s cheerleading coaches did not like that post when it was later brought to their attention. As punishment for it, B.L. was suspended from the junior varsity cheerleading team for a full year. The question before the Supreme Court was whether school officials may punish her for this off-campus speech.

The Supreme Court ruled today that the school may not. At the same time, however, the Court made it clear that its decision was not a sweeping one. In fact, the majority stressed that under certain circumstances, schools may punish students for speech that occurs off-campus. "Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as 'off campus' speech and whether or how ordinary First Amendment standards must give way off campus," Breyer wrote for the majority.

Instead, Breyer made three more general points. First, "geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility." Second, "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." And third, "the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus." To that he added: "America's public schools are the nurseries of democracy. Our representative democracy only works if we protect the 'marketplace of ideas.'"

"Taken together," the opinion concluded, "these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker's off-campus location will make the critical difference."

The cheerleader won this time around, in other words, but future off-campus student speakers might well meet a different legal fate. The free speech side prevailed but it was a limited victory.

Justice Samuel Alito, joined by Justice Neil Gorsuch, joined the majority opinion in full but wrote separately to emphasize a few points. Among them was this:

there is a category of speech that is almost always beyond the regulatory authority of a public school. This is student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations. Speech on such matters lies at the heart of the First Amendment's protection.

"Even if such speech is deeply offensive to members of the school community and may cause a disruption," Alito wrote, "the school cannot punish the student who spoke out; 'that would be a heckler's veto.'"

The sole dissenter today was Justice Clarence Thomas. In his view, "a more searching review reveals that schools historically could discipline students in circumstances like those presented here." In fact, Thomas faulted the majority for failing "to consider whether schools often will have more authority, not less, to discipline students who transmit speech through social media." As he put, "because off-campus speech made through social media can be received on campus (and can spread rapidly to countless people), it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation."

The Supreme Court's decision in Mahanoy Area School District v. B.L. is available here.

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67 responses to “High School Cheerleader's Profane Social Media Rant Is Protected Free Speech, Says SCOTUS

  1. At the same time, however, the Court made it clear that its decision was not a sweeping one.

    Heaven forbid.

    1. Sweeping judgments mean… Less future job security for judges and lawyers! Government Almighty forbid THAT!

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    2. It shouldn’t be sweeping. The situations here are unique and there are enough who/what/when/where/how gray areas on a lot of levels where a broad sweeping decision is bound to be misinterpreted in a lower court.

      Given that it wasn’t general though, I’m a lot surprised that this one made the SCOTUS docket. The Justices must have either wanted a non-political zero-stakes nobody-cares case or have seen a much bigger issue than I see why a snitty 15 yr old brat running her mouth and her apparently offended parents deserve this level of court oversight.

      I’m going to guess her parents are of the same twit level that she is. Who the hell tells sissy that they are gonna defend her sassy bratty mouth all the way to the top? Fuck, if it were my kid, I’d tell her to use it as a lesson when and where to shut the fuck up, people will hear what you don’t intend, and learn that consequences don’t always seem fair. GTFOI Learn that your actual audience is not always your intended audience and a year of no JV cheerleading is probably the least of any sanctions that might be applied at some point in your life.

      1. “Given that it wasn’t general though, I’m a lot surprised that this one made the SCOTUS docket.”

        The Third Circuit in this case ruled that Tinker didn’t apply at all to off-campus speech. SCOTUS took the case so that, while the girl still wins, Tinker is held to apply to off-campus speech at least in certain circumstances.

      2. For a group of people who are appointed for life I cannot understand why they can’t make a firm decision on any matter before them.

  2. You’re fucking right it is.

  3. The decision makes sense. But, at the same time, shows how school inadequately prepares students for the real world. Because you’d see some consequences if your boss saw you go off on a profane rant about your job on social media.

    1. Well, if this were a private school, seems as though the student would have lost the case instead.

      What should schools do in this case that would also be consistent with the First Amendment?

      1. Nothing.

      2. Reply with their own profanity laced post – Internet 101.

        1. Yeah man shit-fuck-piss-cunt-damn-cocksucker-motherfucker!!!

          (THAT is how it’s done!)

          1. and tits. don’t forget tits

        2. I’m all for free speech, of course, but I think they got this ruling wrong. If a child voluntarily signs up for a team extracurricular activity like cheerleading or sports, bad mouths the team or coach, then suspension from that team is appropriate.

          Change anything about the scenario and it would be a free speech issue: she didn’t voluntarily go out for the team, she said something on a topic other than badmouthing the team, or the punishment were something other than suspension from the team. This decision undermines sportsmanship and coaching.

          1. Hmm, my comment went in the wrong place. It wasn’t meant to be a reply to anyone.

          2. In other words, the school should have argued she was suspended for lack of sportsmanlike discipline not her words per se.

          3. Seriously, best thing to do in sports is have good team captains that can mete out punishments within without the coaches getting involved.

            We had a simple system that if someone violated an unwritten policy you had to run a hill and touch a pole at the top and get back in line for your next drill for it to count. Everyone (captains included) would have to do it and it was for like vomiting from excess drinking the weekend before (not for the excess drinking that was expected) or running your mouth.

            1. That makes sense.

          4. Sportsmanship and coaching are not fundamental to a free society, and are arguably just opinions. Free speech is fundamental to a free society. Justice Breyer, of all people, made a very good observation here: it’s especially incumbent on schools to make it clear that free speech protections are especially important with regard to speech one disagrees with. Ultimately, the school’s actions punishing speech that criticized it boiled down to “might makes right”, which is not a lesson that should be taught on the taxpayer’s dime.

            1. “Sportsmanship and coaching are not fundamental to a free society…”

              They just might be fundamental to a functional society, though. The pettiness and divisiveness we have seen growing in American society reeks of poor sportsmanship.

            2. perhaps Californias’ schools should understand that it can’t condone censorship of speech it doesn’t agree with.

      3. You seem innocent of the key concepts, let me help!

        The “Government” is prohibited from restricting the free speech of the citizens.

        The School is a Government Entity

        The Student is a Citizen

        Therefore there is no legal action that the School (the government) can take.

        Sure hope this helps.

        1. Actually the “Government” isn’t forbidden from restricting the free speech of the citizens. Congress is forbidden from that and no one else. The fact that the Supreme Court actually used the first amendment against a Pennsylvania school district for crying out loud tells you just how far gone SCOTUS really is.

          This decision isn’t just terrible, its downright laughable, but unfortunately not a surprise given the court’s continually non-existant respect for federalism or even a hint of anything that doesn’t derive from some rediculous 14th amendment appeal to “due process.” How about SCOTUS actually do what it’s supposed to for a change, instead of throwing the incorporation doctrine cleverly disguised as the first amendment at state school districts. This is literally insane. SCOTUS is a joke. You’re “The Jeffersonian.” How about some nullification? I really think the federal courts could take some nullification.

          1. Your understanding of the first amendment is lacking.

            1. Hmm, actually, it has more to do with the 14th amendment and the tenth amendment if you are aware of the issue I’m talking about here. Given that misunderstanding, it’s safe to say that
              federalism seems to be your general area of deficiency.

              Here’s an exercise for you: read the first amendment and then read the tenth amendment directly afterward. Then scour the 14th for anything that could possibly justify the court’s unbelievably expansive rendering of two measly words: “due process.”

          2. They weren’t throwing it at the school district, they were throwing it at the Third Circuit.

            1. To overule the decision made for the school district all in order to forbid the school district from suspending the student, yes thank you.

        2. In the NBA, if you don’t like the foul called against you, you have the right to let loose with a profanity laced exercise of free speech. against the ref. However, there are consequences; you can be thrown out of the game and even fined.

          In this instance, the school should not have the right to suspend the student, but the coach should have the right to cut the girl from the squad. Those are two differnt things.

          My experience with school administrators is that they love to unnesessarily meddle in trivial matters.

    2. Because you’d see some consequences if your boss saw you go off on a profane rant about your job on social media.

      Yes, she might well have seen some consequences if she’d done something other than what she did, and in a completely different context.

    3. That not part of the school’s job, that is part of the parent’s job. School teaches you things you need to know, parent teach you how to behave. Problem here is that many parents are not much better than their children.

      1. Nor are the schools.

  4. “There is a category of speech that is almost always beyond the regulatory authority of a public school. This is student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations. Speech on such matters lies at the heart of the First Amendment’s protection.”

    —-Samuel Alito

    It’s too bad that wasn’t in the majority opinion. It would have been reassuring to supporters of free speech.

    We may imagine that this kind of ruling would only apply to kids in public schools or attending public universities, but I can see this applying to the adult employees of federal, state, and local government, as well. I remember when the idea of someone losing their job at the Treasury Department, the DMV, or the local dog pound–because they wrote something on social media about how they opposed reparations, forced cake decorating, or supported building a wall on our southern border–would have been ludicrous.

    That doesn’t seem so far-fetched anymore.

  5. This conclusion by SCOTUS could not be further from the truth.

    “Punishment” is a MOTIVE and NOT an action.
    The idea that motives violate rights is absurd.

    Assuming the school does indeed have the right to suspend students from the cheerleader team then the reason it does this is irrelevant – even if you disapprove.

    1. “Assuming the school does indeed have the right to suspend students from the cheerleader team then the reason it does this is irrelevant – even if you disapprove.”

      I am quite certain that the school has the power to suspend students from any team, and for many reasons. I would also bet that those reasons are spelled out in an official document somewhere. I would also bet that it doesn’t say anything about off-campus “mean tweets.”

      1. That could maybe be used in court to prove conspiracy if that existed.

    2. “Punishment” is a MOTIVE and NOT an action.

      In which language?

    3. “Assuming the school does indeed have the right to suspend students from the cheerleader team then the reason it does this is irrelevant – even if you disapprove.”

      Ok then, let’s fire all the black girls from the cheerleading squad solely for that reason and see how well that holds up.

      But no, thats not true at all. That can be applied to any government official, and then we no longer have rights.

  6. What if she was mean to another student?

    1. Then perhaps every student in every grade in every school anywhere, ever, would be banned from every team? /sarc

    2. That depends.

      First, is she white? Then punish her.

      If not, you have to assess some heirarchical level of grievance, like is she black, is she gay, is she transgender. Compare that to the victim of her violence (because even an unintentional utterance of something someone sufficiently oppressed finds offensive is “violence”) and if the victim is lower on the list than the perpetrator the perpetrator has to be punished and ostracized.

      Simple.

  7. The media love stories about cheerleaders because no reporter has ever fucked one.

    1. LMAO

    2. It’s so demeaning for girls to be cheering on the sportsball teams. They should be playing on them.

      And we should stop the oppressive practice of keeping score as well. No cheering, no winners, no losers.

      Gawd, when will people finally be enlightened?

  8. “America’s public schools are the nurseries of democracy. …”
    Given how many school districts are mandating the teaching of Critical Theory of some form or other, too many woke administrators and teachers are seeking to make them nurseries of indoctrination. This indoctrination directly seeks to tear down the very fabric of the society and economy that we have built over the last several hundred years. It is a direct insult to those who are paying for public education through their tax dollars. Instead of allowing educators to reengineer our society we must reengineer our education system while we still have some means to do so.

    1. What does any of what you just said have to do with this case?

      1. Dude come on. I know this isn’t your first day here.

    2. “…we must reengineer education system while we still have some means to do so.”

      Schools shouldn’t be “engineered.” If you want change:

      1) Get your kids into a good school.
      2) Start a school.
      3) Start a “community-based” home-schooling program.
      4) Utilize tutors to enhance other schooling.

      That way, you can build the one-of-a-kind “system” which best fits your needs. And yeah, it’s a lot of work.

      1. and cedes the public school system to those who currently captured it for ideological and political reasons. Just keep retreating, right?
        Part of his message was about the capture and CHANGE of the mission of the school system, one that happened without informed public input.

        1. The goal should not be to “capture and change” the system,
          but rather to create a free-market for education – competition will create a better “product,” if you will.

          For this to happen, the funding we now spend for education needs to follow the students, and not go to the government. Let the parents decide what works for them.

  9. Does anyone else find it strange that the Reason article omits that this was an ACLU case?

    1. It would have been worth mentioning, but omitting that info doesn’t rise to the level of being strange.

  10. WTF is up with Thomas.
    “…to consider whether schools often will have more authority, not less,…”
    How is it he so often curtsies to the authoritarians as of late?

    1. Thomas believes public-school students have no rights their schools are bound to respect. See his dissenting opinion in Safford Unified School District v. Redding, 557 U.S. 364 (2009).

    2. It’s fairly simple. The powers schools exercise over students are not, and cannot be justified as, the powers of a government over free citizens. (Work though the logic. In a free country, can the government actually require free citizens to spend thirty hours a week being indoctrinated by the government? If not, then the relationship of a school to its students is not government-citizen, and the basis must be found elsewhere.)

      Instead, as long-established under the legal doctrine of in loco parentis, the powers of a school over pupils are as a proxy for parents. So, if a parent may punish a child for what the child says, then the school may, if the situation is one in which the school’s right to act in loco parentis applies.

      The question then becomes, under what circumstances may a school punish off-campus speech? And Thomas points that the established precedent is that off-campus speech that “has a direct and immediate tendency to injure the school in its important interests, or to subvert the authority of those in charge of it, is properly a subject for regulation and discipline” by school authorities.

      Accordingly, Thomas rules that the school, acting in loco parentis, can punish this case of off-campus speech; he then notes that with regards to social media, it actually is an easier case, since speech through social media can be received on-campus, while the historic examples were absolutely off-campus.

      The other Justices make a muddled effort to simultaneously acknowledge that the school-student relationship on disciplining speech is in loco parentis but somehow simultaneously governed by the First Amendment, which does nothing but make a mess, because there is no coherent way a relationship can be under parent-child rules and government-citizen rules at the same time.

  11. They should have done a better job of justifying the suspension.

    Suspend her for not wanting to be on the squad.

    Or just bench her indefinitely. “coach’s decision”

  12. I don’t even see what’s so offensive about her statement. Just a teenager letting off a bit of steam. Surely, nobody can still be getting their panties in a knot over the word “fuck”.

    1. Timing is everything. Then you need to know how to say it right.

  13. Thomas fucked up on this one, and his rationale is ridiculous.

    -jcr

  14. Now lets see what happens when a white cheerleader goes off on a racist rant on social media. Can she be suspended?

  15. This was a case of what should have been punishment met out from the parents. A hard lesson needed to be learned here. She wasn’t good enough for Varsity. Her parents need to sit her ass down and also tell her actions have consequences.

    1. Not likely from many parents these days. These themselves childlike notional adults are far more likely to go Full Karen on the school. “How dare you not put my infinitely talented angel on the Varsity squad?!”

      Karents?

  16. A U.S. Supreme Court ruling is just like the Statue of Liberty, It’s empty and hollow on the inside, means nothing. Besides, what’s the penalty for violating a U.S. Supreme Court ruling? ZERO, NOTHING, that’s what the penalty is.

  17. Profane:
    1.
    relating or devoted to that which is not sacred or biblical; secular rather than religious.
    “a talk that tackled topics both sacred and profane”

    2.
    (of a person or their behavior) not respectful of orthodox religious practice; irreverent.
    “desecration of the temple by profane adolescents”

    Vulgar? Yes. Profane? No.

  18. From a link here: Justice Clarence Thomas was the lone dissenter. He cited “150 years of history supporting the coach” and argued that the majority opinion “reaches the wrong result.”

    Saying that a ruling is unconstitutional because it “reaches the wrong result” is judicial activist thinking. Sometimes the wrong result is the right law. An offender goes free. A student is un-punished. However, in exchange for the wrong results happening frequently, the innocent are not imprisoned infrequently, your home is not violated infrequently, and you can say f*ck in a snapchat even if your private rantings are exposed and it offends someone. (The whole point of snapchat is that it’s supposed to disappear and be relatively private. Albeit people can always take a screenshot of your snap just as they can take a screenshot of your private email.)

  19. Isn’t it ironic that President Donald Trump cannot post on Facebook and is stifled in his posts on Twitter and be denied his First Amendment Right yet a teenage girl can use profanity on social media and have her actions defended by the Supreme Court of the United States.

  20. An incredible and very unexpected statement.
    I do not completely agree with him, but I hope that the press comments will be very soon. He taught for a long time in junior high school and probably forgot the difference between hard work and smart work. Good thing I can remind him of that here https://teacherhabits.com/hard-work-vs-smart-work-debate/ . And how do you think?

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