A Pennsylvania high school in 2017 restricted a student’s participation in cheerleading because she posted a few curse words about cheerleading on social media after feeling disappointed that she was not selected for the varsity squad, according to a brief from the school’s attorneys filed in the Supreme Court of the United States.
The brief contends that the Supreme Court needs to weigh in because the question comes up often as to whether a school can punish a student for speech made off campus—on Snapchat in this case—if that speech is considered offensive by school administrators.
The question “recurs constantly and has become even more urgent as Covid-19 has forced schools to operate online,” the brief says. “Only [the Supreme Court] can resolve this threshold First Amendment question bedeviling the nation’s nearly 100,000 public schools.”
Ordinarily, Snapchat is an ephemeral platform in that posts don’t last forever. Except in this case, another student took a screenshot of the post, which used vulgar language four times in reference to the school, the softball team, the cheerleading activity, and “everything,” and shared it with a teacher at the school. The post accompanied a photo of the student and another friend giving the middle finger.
The student at Mahanoy Area High School, identified by the initials B.L., sued the school, claiming that her free speech rights were violated when the school suspended her from participation in cheerleading for a year. The school said they had to punish her in order to “avoid chaos” and maintain a “teamlike environment.”
The US Court of Appeals for the Third Circuit agreed with the student but, in so ruling, entered an opinion that would seem to give students the right to say whatever they want on social media, as long as it is not during school or written while the student is on school grounds, without fear of punishment from the school.
Even acknowledging that cheerleading is a “privilege,” not a “right,” the Third Circuit found that “the punishment of B.L.’s off-campus speech violated the First Amendment.” The chief argument was that the speech was not made in a school setting, even though the snap was read by students at the high school.
“Nothing in this opinion questions school officials’ comprehensive authority to regulate students when they act or speak within the school environment,” the circuit court said. “Nor are we confronted here with off-campus student speech threatening violence or harassing particular students or teachers.”
That much is true: All the student did was to use a curse word and a vulgar gesture to describe certain school activities.
And even though the court acknowledged that the student had signed a statement about rules for participation in cheerleading, the court found that the agreement she made couldn’t reduce her First Amendment rights.
I side with the student in this case in that students should have freedom of speech, as long as that speech is protected in that it doesn’t threaten harm or disrupt school operations. That’s what the Supreme Court decided in the case known as Tinker v Des Moines. Their rights should be similar to those of anybody else in the community when they are in the community.
But social media has introduced a new wrinkle into the free speech argument in that the megaphone students have is bigger now and earshot likely extends into the school environment. School administrators need to be able to step in to prevent cyberbullying and other unprotected speech, even if it is made off-campus or on social media. The Third Circuit’s ruling seems very broad in this case, and that may be why the Supreme Court is deciding whether to hear this case early next month.
Finally, I disagree with the student when she contends that her speech should not have any consequences relative to school or cheerleading. I might even argue that banning her from cheerleading didn’t deprive her of any rights or liberties, but that’s not really a First Amendment question in my experience. She has the right to use curse words and vulgar gestures to refer to whatever she wants; the school has the right to decide who gets to be on the varsity cheerleading squad. That doesn’t constitute a First Amendment violation.
As I have held many times on these pages, we have the constitutional right to free expression. But if we say something that offends our boss, even if that boss is a school or a government agency subject to the First Amendment, we could be fired, fined, or friended. Our right to speak is defensible; the consequences of that speech are just as protected.
We’ll keep you posted.