Understanding Your Students’ First Amendment Rights is a “Snap”

July 17, 2020

Finally, the Third Circuit has judicially defined the upside-down smiley-face emoji. B.L. v. Mahanoy Area S.D., No. 19-1842, 6/30/30, slip op. p.5, fn. 2. The Court held that a public school’s suspension of an unhappy cheerleader for writing “f**k cheer” in her weekend Snapchat post (or a “snap”) violated her First Amendment rights.

Recognizing “the line between on- and off-campus speech may be difficult in the social media age,” the Court concluded that the “snap” was “off-campus” speech because it was created “away from campus, over the weekend, and she shared it on a social media platform unaffiliated with the school.” Employing a Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) analysis, the Court had no trouble upholding the would-be cheerleader’s First Amendment freedom of expression. And, thus, it rejected the in loco parentis argument of the school:

The heart of the School District’s arguments is that it has a duty to “inculcate the habits and manners of civility” in its students. Appellant’s Br. 24 (citation omitted). To be sure, B.L.’s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community.

But the Court also sighed:

True, our rule leaves some vulgar, crude, or offensive speech beyond the power of schools to regulate. Yet we return to Tinker and find in its pages wisdom and comfort: [O]ur Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. 393 U.S. at 508–09.

For more information, please contact John M. Myers, Jeremy D. Mishkin, or Kacie E. Kergides.