Free Speech

Supreme Court Protects Students' "Political or Religious Speech" Outside School

The Court doesn't set forth a categorical rule protecting such speech, but strongly suggests that such speech is normally protected by the First Amendment—and defines political speech broadly, to include criticism (even vulgar criticism) of school programs and officials.

|

In today's Mahanoy Area School Dist. v. B.L., eight Justices (all but Justice Thomas) conclude that off-campus student speech—especially on political or religious topics, defined broadly—is generally protected from punishment by the school (at least unless it fits within an existing First Amendment protection, such as for threats of violence, or perhaps unless it involves personal insults of classmates). The Justices declined to establish this as a categorical rule; but I expect this decision to prevent punishment for such speech in the great bulk of situations. ("Off-campus speech" here is shorthand for speech that's outside school property and outside school-organized or school-sanctioned activities.)

First, a short summary of the facts:

At the end of her freshman year, B.L. tried out for a position on the [Mahanoy Area Public High School's] varsity cheerleading squad and for right fielder on a private softball team. She did not make the varsity cheerleading team or get her preferred softball position, but she was offered a spot on the cheerleading squad's junior varsity team. B.L. did not accept the coach's decision with good grace, particularly because the squad coaches had placed an entering freshman on the varsity team.

That weekend, B.L. and a friend visited the Cocoa Hut, a local convenience store. There, B.L. used her smartphone to post two photos on Snapchat, a social media application that allows users to post photos and videos that disappear after a set period of time. B.L. posted the images to her Snapchat "story," a feature of the application that allows any person in the user's "friend" group (B.L. had about 250 "friends") to view the images for a 24 hour period.

The first image B.L. posted showed B.L. and a friend with middle fingers raised; it bore the caption: "Fuck school fuck softball fuck cheer fuck everything." The second image was blank but for a caption, which 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 caption also contained an upside-down smileyface emoji.

B.L.'s Snapchat "friends" included other Mahanoy Area High School students, some of whom also belonged to the cheerleading squad. At least one of them, using a separate cellphone, took pictures of B.L.'s posts and shared them with other members of the cheerleading squad. One of the students who received these photos showed them to her mother (who was a cheerleading squad coach), and the images spread. That week, several cheerleaders and other students approached the cheerleading coaches "visibly upset" about B.L.'s posts. Questions about the posts persisted during an Algebra class taught by one of the two coaches.

After discussing the matter with the school principal, the coaches decided that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules. As a result, the coaches suspended B.L. from the junior varsity cheerleading squad for the upcoming year. B.L.'s subsequent apologies did not move school officials.

The Supreme Court concluded the suspension violated the First Amendment, largely because the speech was said off-campus (even though it foreseeably made its way on-campus):

[T]hree features of off-campus speech … often, even if not always, distinguish schools' efforts to regulate that speech from their efforts to regulate on-campus speech. Those features diminish the strength of the unique educational characteristics that might call for special First Amendment leeway.

First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco parentis treats school administrators as standing in the place of students' parents under circumstances where the children's actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.

Second, from the student speaker's perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school's efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. 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.

Third, the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus. America's public schools are the nurseries of democracy. Our representative democracy only works if we protect the "marketplace of ideas." This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People's will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, 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." …

Taken together, 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.

And the court illustrated its approach using the facts of this case:

Putting aside the vulgar language, the listener would hear criticism, of the team, the team's coaches, and the school—in a word or two, criticism of the rules of a community of which B.L. forms a part. This criticism did not involve features that would place it outside the First Amendment's ordinary protection. B.L.'s posts, while crude, did not amount to fighting words. And while B.L. used vulgarity, her speech was not obscene as this Court has understood that term. To the contrary, B.L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection…. [The] First Amendment protects "even hurtful speech on public issues to ensure that we do not stifle public debate" …. "The inappropriate … character of a statement is irrelevant to the question whether it deals with a matter of public concern[.]" …

Consider too when, where, and how B.L. spoke. Her posts appeared outside of school hours from a location outside the school. She did not identify the school in her posts or target any member of the school community with vulgar or abusive language. B.L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends. These features of her speech, while risking transmission to the school itself, nonetheless … diminish the school's interest in punishing B.L.'s utterance.

But what about the school's interest, here primarily an interest in prohibiting students from using vulgar language to criticize a school team or its coaches—at least when that criticism might well be transmitted to other students, team members, coaches, and faculty? We can break that general interest into three parts.

First, we consider the school's interest in teaching good manners and consequently in punishing the use of vulgar language aimed at part of the school community. The strength of this anti-vulgarity interest is weakened considerably by the fact that B.L. spoke outside the school on her own time. B.L. spoke under circumstances where the school did not stand in loco parentis. And there is no reason to believe B.L.'s parents had delegated to school officials their own control of B.L.'s behavior at the Cocoa Hut.

Moreover, 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. Further, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom. Together, these facts convince us that the school's interest in teaching good manners is not sufficient, in this case, to overcome B.L.'s interest in free expression.

Second, the school argues that it was trying to prevent disruption, if not within the classroom, then within the bounds of a school-sponsored extracurricular activity. But we can find no evidence in the record of the sort of "substantial disruption" of a school activity or a threatened harm to the rights of others that might justify the school's action. Rather, the record shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class "for just a couple of days" and that some members of the cheerleading team were "upset" about the content of B.L.'s Snapchats. But when one of B.L.'s coaches was asked directly if she had "any reason to think that this particular incident would disrupt class or school activities other than the fact that kids kept asking … about it," she responded simply, "No." As we said in Tinker v. Des Moines Indep. School Dist. (1969), "for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." The alleged disturbance here does not meet Tinker's demanding standard.

Third, the school presented some evidence that expresses (at least indirectly) a concern for team morale. One of the coaches testified that the school decided to suspend B.L., not because of any specific negative impact upon a particular member of the school community, but "based on the fact that there was negativity put out there that could impact students in the school." There is little else, however, that suggests any serious decline in team morale—to the point where it could create a substantial interference in, or disruption of, the school's efforts to maintain team cohesion…. [S]imple "undifferentiated fear or apprehension … is not enough to overcome the right to freedom of expression." Tinker.

It might be tempting to dismiss B.L.'s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary. "We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated."

Justice Alito, joined by Justice Gorsuch, agreed with the majority but added that certain speech "is almost always beyond the regulatory authority of a public school," because "it lies at the heart of the First Amendment's protection":

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….

If a school tried to regulate such speech, the most that it could claim is that offensive off-premises speech on important matters may cause controversy and recriminations among students and may thus disrupt instruction and good order on school premises. But it is a "bedrock principle" that speech may not be suppressed simply because it expresses ideas that are "offensive or disagreeable." Texas v. Johnson (1989); see also Matal v. Tam (2017) ("Speech may not be banned on the ground that it expresses ideas that offend"); FCC v. Pacifica Foundation (1978) (opinion of Stevens, J.) ("[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it"); Young v. American Mini Theatres, Inc. (1976) (plurality opinion) ("Nor may speech be curtailed because it invites dispute, creates dissatisfaction with conditions the way they are, or even stirs people to anger"); Street v. New York (1969) ("It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers"). It is unreasonable to infer that parents who send a child to a public school thereby authorize the school to take away such a critical right.

And he endorsed the view expressed by the school board's lawyer, which he viewed as consistent with his position:

[E]ven if such speech is deeply offensive to members of the school community and may cause a disruption, the school cannot punish the student who spoke out; "that would be a heckler's veto." The school may suppress the disruption, but it may not punish the off-campus speech that prompted other students to engage in misconduct.

He also noted, "This case does not involve speech by a student at a public college or university. For several reasons, including the age, independence, and living arrangements of such students, regulation of their speech may raise very different questions from those presented here. I do not understand the decision in this case to apply to such students."

Justice Thomas dissented, reaffirming the view (which he had expressed in Morse v. Frederick (2007)) that historically public schools had almost unlimited latitude to discipline students based on their speech, including off-campus speech that "had a proximate [i.e., foreseeable] tendency to harm the school environment":

While the majority entirely ignores the relevant history, I would begin the assessment of the scope of free-speech rights incorporated against the States by looking to "what 'ordinary citizens' at the time of [the Fourteenth Amendment's] ratification would have understood" the right to encompass. Cases and treatises from that era reveal that public schools retained substantial authority to discipline students….

For more on the rules of free speech law in K-12 schools (a video that was prepared before this decision was handed down, but that's still accurate):

NEXT: Cheerleaders and Property Owners Prevail in the Supreme Court (Updated)

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. And Clarence Thomas once again shows his antipathy for the first amendment. At least this time he didn’t advocate strip searching a 13 year old girl under the suspicion that she had forbidden ibuprofin hidden on er person.

    1. Not a fan of Thomas or his jurisprudence, but this is unfair. A fair reading would suggest a continuation of his radical version of originalism.

      1. No, this goes beyond originalism. You can argue that his position on IN-school speech is originalist- basically, the school officials had the right to discipline students however they wanted to. But there’s absolutely nothing in originalism that speaks to whether a school can punish a student for communication with other students off school grounds.

        What’s actually happening is that Thomas isn’t admitting the problem, which is that his vaunted originalism doesn’t tell us how to deal with the issue of off-campus speech, and that even originalists have to look at doctrine and make a policy judgment on that issue.

        1. You evidently didn’t read his dissent. Because if you had, you’d know that he referred specifically to the understanding that existed at the time of passage of the 14th Amendment and incorporation of the Bill of Rights. So, yes, it was very much an originalist viewpoint.

          I don’t agree with him; however, you’re just making it up to rant about him. Next time at least read what he wrote before pontificating on his viewpoint.

          1. He made it up. He pulled out this weird Vermont case that wasn’t even a First Amendment case and didn’t really address anything like a Snapchat post.

          2. It was an originalist viewpoint, but its wrong.

            Look, Thomas always does this in these sorts of cases. He has an extremely expansive view of the first amendment and cites numerous originalist scholarship … but as soon as it becomes about violence or something he doesn’t like, he promptly abandons that and starts citing things like the sedition act and other narrow first amendment stuff.

            He is not consistent on this. Its ok to have an originalist view, but if you pick and choose the scholars based on personal views, then you aren’t being serious about it.

            How is a public school controlling students speech off campus different from a government official doing that. If it isnt, then does the first amendment have any meaning at all?

            Saying there exists a random exception for schools is far from originalism, and in fact, I’m not convinced its consistent with Thomas’s own jurisprudence on other issues!

            1. Right.

              And importantly, even if there was a historic exception for schools, it doesn’t tell you what the rule is with respect to off-campus speech. And certainly not off-campus speech on Snapchat.

            2. I disagree with Thomas here too. But I find it ironic that the people complaining here would certainly be on the opposite side of this issue themselves if this girl had worn a MAGA hat outside of school instead.

              1. Not me. I attack liberal cancel culture excesses all the time. A high school student absolutely has a First Amendment right to wear a MAGA hat, unless she wears it in school and it is disruptive.

              2. Quit making up hypothetical hypocrites, Amos.

  2. The news here is not the Court’s decision to protect speech, that was and is a foregone conclusion by any standard. The news instead is Clarence’s dissent. His dissent is as simple as most of his legal scholarship; schools should be able to control off campus speech because that is the historical practice. Like that is the major basis of law.

    The dissent should put to rest, but it won’t, all discussion that Clarence is a conservative. Clarence is an authoritarian, and he has escaped criticism on this because his authoritarianism has aligned itself with many conservative policy positions.

    A study of Clarence’s position on police powers is that he is almost always in favor of them on an unlimited basis. Don’t like the gay community; lock em up. Don’t like rights of the defendants; take em away. Don’t like limits on police; don’t have em.

    But even his dissent will not sway his backers, those people who adhere to principles only when it is politically convenient.

  3. In loco parentis lives!

    1. It’s actually returned with avengeance.

    2. Obscure Latin phrases that only lawyers understand. Ah, the good old days!

      Or maybe that is what you meant. Res ipsa locquitor.

      1. “Evidently Mr. Ringo’s an educated man. Now I really hate him.”

  4. “”This case does not involve speech by a student at a public college or university. For several reasons, including the age, independence, and living arrangements of such students, regulation of their speech may raise very different questions from those presented here. I do not understand the decision in this case to apply to such students.””

    This is significantbecause every public college and university that I know of is extensively regulating the off-campus speech and assembly rights of its students — in some cases expelling them for off conduct stuff.

    1. Yes. This. It’s troubling that the justices went out of their way to highlight this.

      Public universities punish students for off-campus, non-education related speech all of the time–especially when that speech “goes viral.”

  5. While the result is fine, the opinion is so vague and mushy as to be almost meaningless. Try applying it to a new case, and see if the opinion provides any guidance.

    As I said in a prior post, this just results in more litigation. Something lawyers like (it’s their bread and butter), but the rest of us should be skeptical of.

    1. Probably that’s correct. But at least it appears this case establishes that “unpopular expression, especially when the expression takes place off campus” deserves protection. Additionally, Breyer strongly hinted the following off-campus speech would not be protected:

      severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers

      . Being able to distinguish severe bullying from garden variety bullying could prove to be a problem.

      1. Yeah, I saw that.

        severe bullying or harassment targeting particular individuals — what if they don’t go to the school? What if it just some kid who lives on the block?

        The rest of them are directed at the school, so I have no issue with them being subject to school discipline for those.

        I am dubious in any event whether the First Amendment protects those even for an adult. For example, “breaches of school security devices, including material maintained within school computers” is a federal felony under the Computer Fraud and Abuse Act. Hard to see how anyone, adult or student, can invoke the First Amendment on that.

    2. You’re not wrong that the Court didn’t provide a tidy doctrine that gives real guidance. I suspect, though, that a good example will work better than a bad definition and things will work out on an “I know it when I see it” basis, leading fairly soon to a consistent, if unarticulated, understanding of what goes and what doesn’t go.

  6. It’s pretty clear vulgar speech off campus is protected (or at least not categorically unprotected). But, what about the heckler’s veto and “marijuana is awesome”? Does this decision resolve how those doctrines apply to off-campus speech?

  7. For example: https://www.foxnews.com/us/umass-students-suspended-maskless-photo-complete-overkill

    The issue is that UMass did not want students to publicly assemble that weekend in that particular backyard of that particular apartment complex.

    1. That strikes me at first glance as expulsion over conduct, not speech.

      1. Off campus conduct, not during class hours, by legal adults. Where does U Mass even have a say in this?

        1. The school argued, persuasively in my view, they could punish the conduct even though it occurred off campus because the conduct plausibly would result in COVID being spread on campus (the students will return to campus).

      2. Aren’t photos a form of speech?

        But I’m thinking more the right to peaceably assemble and UMass has sought to openly ban this particular assembly.

        1. I think they were suspended for the conduct depicted in the photos, not for the photos per se. I’m guessing the courts might view an assembly of party goers different than an assembly of political protestors.

          1. Having a party in the face of administrative dictates IS political protest.
            (I give you all the riots in 20202)

            1. (I give you all the riots in 20202)

              Well, I guess it’s good to hear that humanity will still be around over 18 millenia hence.

            2. Civil disobedience is not protected. In fact, paying the price is part of the whole deal.

  8. Don’t worry, defenders of authority, the school will just work with social media to censor or cancel the accounts of offending students in the future.

    1. If the school’s fingerprints are on such censoring, that too would almost certainly violate the First Amendment.

      1. Then I got news for you about social media companies, the 2020 election, and COVID…..

        1. No you don’t. Conspiracy theories aren’t news.

  9. Sounds good. Hopefully speech is an issue that will get more attention.

    According to FIRE, the UofO has been falsely training English Comp teachers that SCOTUS has ruled that the first amendment doesn’t apply to their classrooms.

    They are told that they should prevent students from making oral or written arguments that the teacher disagrees with, like BLM protestors shouldn’t destroy property, or that people should be permitted to choose not to use someone’s preferred pronoun).

    They have an hour-long workshop teaching professors how to prevent students from speaking or writing about ideas that the professor finds problematic.

    English Comp teachers are suppose to teach students to express their ideas well and articulately. They’re not supposed to tell students what ideas to express.

    1. Sarcastr0 to tell us why this isn’t actual CRT in 3…2…1…

      Yes, we know it’s not “true CRT” (whatever one wants to believe that is). It’s a real world example of how those who have been indoctrinated with CRT go out in the world and apply it.

      1. Weird of you to bring up both me and CRT when TiP did not.

    2. On that score, I noticed this paragraph:

      Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, 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.” (Although this quote is often attributed to Voltaire, it was likely coined by an English writer, Evelyn Beatrice Hall.)

      I’ll bet anyone that paragraph is going to be quoted in future school-related litigaiton.

      1. I certainly hope it will.

      2. “nurseries of democracy”

        They are just government funded nurseries for the most part with no qualifier. Warehouses for kids so that mom can work a few days in an office so that some liberal can feel good about “women in the wokeforce.”

  10. The court is just opening the door to wide open anarchy here.

    There is nothing more critical to maintaining an orderly learning environment than ensuring the harmonious and disruption free operation of the Varsity and JV cheer squads. Imagine if you will the varsity QB faced with a critical 4th and 3 late in the 4th quarter missing the coaches play call because the cheersquad is having a spat over which cheer they are going with.

    I know that’s an extreme example, but it’s real life.

    1. The difference between today and wide spread anarchy to me doesn’t exactly include the ability to control off campus speech, see off campus, not on

    2. Cats and dogs, living together!

      1. Do you mean “living” in the Biblical sense, or just sharing room and board?

  11. Note that Justice Breyer spells out the student’s use of the word “fuck”, but that Justice Thomas cannot bring himself to do so, writing “f***” in his dissent. Does that imply his rejection of the use / mention distinction?

    1. Nobody, to my knowledge, rejects the use/mention distinction. But people disagree on the propriety of mentioning certain words in certain contexts, just like they disagree about the propriety of using different words in different contexts.

      But if we were just relying on the dissent, we wouldn’t know if she wrote “fuck cheer” for “f*** cheer”.

      1. Wonder if he is doing that as a subtle f*** you for all the controversy around how to spell various words or truncate some that start with “n”.

    2. It’s odd — in Iancu v. Brunetti (2019), Justice Breyer expurgated the book title “Holy Sh*t: A Brief History of Swearing” as “Holy S***.” (The single-letter expurgation, “Sh*t,” was in the original title.) But here, he (quite rightly, in my view), spells out “fuck.” On the other, Justice Thomas wrote “f***” here, but (equally rightly) spelled out “nigger” in Masterpiece Cakeshop (2018), as well as in past cases.

      Maybe they are drawing some subtle distinctions, or maybe they’ve changed their minds in opposite directions in the last few years, or maybe this was just how the clerks drafted it and the Justices didn’t care enough to change it.

  12. Interesting that the night before this decision was issued, parents in a bedroom community of DC were arrested for disagreeing with a school board in a public comment session.

    1. Yeah funny how the media is spinning that one. You have antifa trying to burn down buildings in Portland that get nothing, but some parents are fed up with being shut out of the democratic process so their kids can be indoctrinated and they get the Pinkerton treatment with lefties applauding the entire time. In RI they are actually trying to change the law so a mom can’t get public documents from the local school district concerning critical racist indoctrination. That is how far these people will go.

      If you are one the NORMALS out there and do not understand it yet, THESE PEOPLE HATE YOU. They don’t want to live with you. They don’t want to be your neighbor. They don’t want to agree to disagree. They just want you cancelled and gone.

      1. It is a mistake to psychoanalyze groups of which you are not a member of and from which you shrink in fear.

  13. Did any of the Justices (or any of the lawyers who appeared before the Justices) observe that saying “Fuck school fuck softball fuck cheer fuck everything” isn’t a good use of the Constitutional right to free speech? I don’t mean it shouldn’t be protected. I do mean that Constitutional rights shouldn’t be trivialized.

    1. Because “Fuck the Draft” was so much more articulate?

      1. It was to 1970’s liberals, back when they were all about free speech (and fucking everything around them).

    2. Did any of the Justices (or any of the lawyers who appeared before the Justices) observe that saying “Fuck school fuck softball fuck cheer fuck everything” isn’t a good use of the Constitutional right to free speech? I don’t mean it shouldn’t be protected. I do mean that Constitutional rights shouldn’t be trivialized.

      I’m guessing that made some sort of sense in your head, but out here…not so much.

      1. We used to have a now obsolete popular saying “Don’t make a federal case of it”.

        Or if you prefer Latin “de minimis non curat lex”

        1. Another obscure Latin phrase! That makes two today.

          Anyone care to make it three?

    3. “Did any of the Justices (or any of the lawyers who appeared before the Justices) observe that saying “Fuck school fuck softball fuck cheer fuck everything” isn’t a good use of the Constitutional right to free speech?”

      Seems kind of improper for the justices to opine on good vs. bad exercise of constitutional rights. “Although fully protected, joining a Lutheran church is a terrible use of freedom of religion. A Methodist church would be a much better choice.”

    4. Eric,
      To this: “Did any of the Justices […] observe that saying […] isn’t a good use of the Constitutional right to free speech?”
      I think that’s pretty much discussed this way in the opinion:

      “It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the super-fluous in order to preserve the necessary. See Tyson & Brother v. Banton, 273 U. S. 418, 447 (1927) (Holmes, J., dissenting). “We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamen-tal societal values are truly implicated.” Cohen, 403 U. S., at 25”

  14. I am curious why her private comments to a privately selected cadre of friends in a private digital medium recieved the ire of the school for being disruptive when but for the actions of another person who brought this content and then shared it themselves with others at school it would not have been a school issue.

    Why isn’t this second person the one having to defend themsleves in court (where I would support them being victorious just as B.L. was)? It was their speech… essentially quoting B.L., that would be the source of on campus disruption. Had they not quoted it/shared it… the whole thing would have likely stayed a totally private affair.

    1. sparkstable

      Good question. But I think this snippet at Wikipedia is interesting

      The following weekend, B.L. and a friend commiserated about the apparent unfairness of this at the Cocoa Hut, a convenience store in downtown Mahanoy City where students often socialized. Using B.L.’s smartphone, the two took a selfie with middle fingers raised and posted it to her Snapchat story with the text “fuck school fuck softball fuck cheer fuck everything”.[6][7][8] A followup Snap expressed their frustration about being kept on the JV squad while the incoming freshman girl made varsity; they believed they were being treated unfairly. B.L. sent the two Snaps to a group of 250 friends, many of whom were fellow students, some of them cheerleaders themselves.[4]
      The Snap itself self-deleted in a short period of time, but one of her teammates took a screenshot.[6] One of those teammates was the daughter of one of the coaches, who had herself been suspended from cheering at a few games after she had posted disparaging remarks online about another school’s cheerleading squad’s uniforms.[9] By the time school resumed for the following week, the screenshot had been widely shared among students, especially the cheerleaders. Some who had seen it came to the cheerleading coaches “visibly upset” by the Snap[10] over the next few days.[4] At the end of the week one of the coaches pulled B.L. out of class to inform her that she was suspended from cheerleading for the next year as a result of her Snap.[3] B.L.’s parents appealed the suspension to the school board, which upheld it.[7

      So one of the people who brought the speech to the school was a coach’s daughter.

      I also found it interesting to see that the school was immensely draconian in their speech policy. They’d disciplined a student for merely criticizing the another cheersquad’s uniformed. So it’s clear they weren’t limiting their discipline to “vulgarity” or “profanity”.

      I also can’t help wonder what the “visibly teens” were upset about. Perhaps they were upset about the possibility that Brandi would “get away” with something others were disciplined for. If so: they weren’t actually upset about “the speech”. They were upset about the possible differential enforcement of the rules. But of course, in that case, the school’s legal likely wouldn’t want to emphasize what they were upset about!

      I’d guess the school has now also lost the right to kick kids off the JV team for criticizing other teams uniforms. So rack up another win for student free speech.

  15. 1) I think the decision is right under existing precedent; 2) I think existing precedent is good for its larger purposes; 3) There’s still a part of me that says “maybe there’s not really a problem with the school saying ‘somebody whose reaction to not making varsity cheer is to publicly bitch and curse about cheer… shouldn’t even be on our JV team”.

    Not sure myself how to actually do that without messing up the jurisprudence for the important stuff, but I’d sure be interested if somebody else had an idea.

    1. I can tell you as somebody who’s directed plays and musicals both in and out of schools (and both public and private), that if I post a cast list and I find out somebody went around publicly bitching that they didn’t get the part they wanted, I would seriously consider removing them from the show entirely or at the very least sitting down with them and their parents for a long talk and perhaps some discipline.

Please to post comments