Snapchatting Cheerleader Wins Free-Speech Case at 3rd Circuit

PHILADELPHIA (CN) — The Third Circuit ruled Tuesday that a school violated a cheerleader’s First Amendment rights when it kicked her off the squad over a profane Snapchat post done off-campus.

The case began when the cheerleader B.L. did not make the varsity squad for the 2017-18 school year at Mahanoy Area School District.

B.L. took to the photo-sharing app Snapchat to express her anger of not making the squad while at a local store with a friend. “Fuck school, fuck softball, fuck cheer, fuck everything,” she wrote, with a photo of herself giving the middle finger.

Her parents, Lawrence and Betty Lou Levy, sued the school after B.L’s coaches saw the post and the school decided it would be best to suspend her from the team.

Last year, a federal judge ruled her snap is protected under the First Amendment. The Third Circuit, which heard arguments in the case this past November, affirmed that decision Tuesday.

Writing for the three-judge panel, U.S. Circuit Judge Cheryl Ann Krause found B.L.’s speech is protected specifically because she made the snap off-campus.

“B.L. created the snap away from campus, over the weekend, and without school resources, and she shared it on a social media platform unaffiliated with the school,” said Krause in the 44-page-opinion

The school had argued B.L. waived her free speech rights by agreeing to the cheerleading squad’s “Respect Rule,” but Krause disagreed.

“That would not cover a weekend post to Snapchat unconnected with any game or school event and before the cheerleading season had even begun,” Krause wrote. “And common sense supports this reading: It is hard to believe a reasonable student would understand that by agreeing to the Respect Rule, she was waiving all rights to malign the school once safely off campus and in the world at large.”

U.S. Circuit Judge Thomas Ambro concurred with the judgment but dissented with the court’s holding that Tinker v. Des Moines Independent School District, a case where students were suspended for wearing black armbands in protest of the Vietnam War, does not apply to off-campus speech.

Ambro worried the narrow holding of the majority leaves the door open for schools to regulate on-campus speech.

“The bottom line is that circuit courts facing harder and closer calls have stayed their hand and declined to rule categorically that Tinker does not apply to off-campus speech. Yet we do so here in a case bereft of substantial disruptions within the school. I fear that our decision will sow further confusion,” said Ambro.

Still, Ambro agreed B.L.’s case was clear-cut.

“The case before us is straightforward — B.L.’s Snap is not close to the line of student speech that schools may regulate,” said Ambro.

American Civil Liberties Union attorney Sara Rose, representing B.L., applauded the decision.

“Our client was out of school, on her own time, and not involved in a school activity when she made the Snapchat post, and the school went well beyond its power in disciplining her for her speech,” Rose said in a statement. “We are grateful that the court understood that the same free speech principles apply whether a student is kicked off the cheerleading team or suspended from school for expression that occurs off-campus.”

Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida, has been following this case and was thrilled with the ruling.

“This decision is enormously important for the safety and welfare of young people everywhere,” said LoMonte in an email, adding the ruling is especially important given today’s climate.

“For years, schools have been claiming near-total authority over students’ speech no matter when and where it happens, even off-campus on personal time, and the Third Circuit has now clearly said that there is a meaningful legal distinction between in-school speech and off-campus speech,” said LoMonte. “This is the only rule that can possibly make sense in today’s world, where students are taking on leadership in social-justice movements and need the full force of the First Amendment to keep them safe from school punishment, even if they stir up controversy or provoke dissent.”

Attorneys for the school did not immediately respond to email seeking comment.

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