The Supreme Court of the United States will hear argument in Mahanoy Area School District v. B.L. and whatever the result, the decision will fundamentally change how a public school can discipline students for speech that occurs outside the school.

Traditionally, public school officials were allowed to punish students for exercising their First Amendment rights on school grounds when the speech ‘would materially and substantially interfere with the requirements of appropriate discipline and in the operation of the school.’  This rule, first articulated in Tinker v. Des Moines Independent Community School District, has been Supreme Court precedent since 1969.

The facts of Mahanoy involve a high school freshman and junior varsity cheerleader, B.L., who went on to Snapchat to voice her frustration about not making the varsity cheerleading team.  After posting a picture of her and friend, with middle fingers raised and a caption ‘‘F— school, f— softball, f— cheer, f— everything,’ she was suspended from the cheerleading team.  Importantly, B.L. posted her Snap while she was off school property on the weekend.

B.L., through her parents, filed a Complaint and a Motion for Temporary Restraining Order (TRO) in the United States District Court for the Middle District of Pennsylvania alleging that the School District violated her First Amendment right to speak when she was punished for speech that originated outside of school, and that B.L. should be reinstated to the cheerleading squad.  The court granted BL’s TRO based on the likelihood of B.L. prevailing on her First Amendment claim.  The court also eventually granted summary judgment in favor of B.L., holding that BL’s snap was off-campus speech and not subject to regulation under Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).  The court also found that BL’s off-campus speech was not subject to discipline under Tinker.  The School District subsequently appealed to the United States Court of Appeals for the Third Circuit.

The Third Circuit affirmed the District Court’s decision to grant B.L. summary judgment.  In doing so, the Third Circuit reiterated that B.L.’s snap was off-campus speech.  Citing Third Circuit precedent, the Third Circuit noted that a student’s online speech is not rendered ‘on campus’ because it mentions or involves the school.  B.L.’s snap fell ‘utside the school context’ because it was created away from campus, over the weekend, did not use any school resources, and was shared on an unaffiliated platform (Snapchat).  Even though the school, particularly the cheerleading program, was mentioned in the Snap, and the content reached students and officials, precedent within the Third Circuit holds that “those few points of contact are not enough” to render the speech “on-campus” and subject to the school’s purview to regulate.

In its petition for writ for certiorari to the Supreme Court, the School District argues that social media and new technology has aided a student’s speech to “ensur[e] that it reverberates throughout the classroom and commands the school’s attention.”  The School District posits that schools have no authority to discipline students for off-campus speech thanks to the Third Circuit’s ruling.

On the other hand, in its brief, B.L. argues that the Third Circuit’s decision falls right in line with Tinker and its progeny:

In a weekend comment in an evanescent Snapchat message, B.L. swore in expressing her disappointment at not making the varsity team to her friends. The notion that a school can discipline a student for that kind of spontaneous, non-threatening, non-harassing expression is contrary to our First Amendment tradition, and finds no support in this Court’s student speech cases.

The parties have been asked by the Supreme Court to answer one, simple question: “Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.”

Will the Court affirm the Third Circuit and provide even greater protection to a students’ First Amendment right to speak or will the Court give more power to the school to regulate a student’s speech when not on campus?

If you have any questions regarding this decision and its impact, please contact Attorneys Adam J. Tragone at atragone@smgglaw.com and Jordan Strassburger at jstrassburger@smgglaw.com.

Recently in B.L. v. Mahanoy Area Sch. Dist., the United States Court of Appeals for the Third Circuit held that a public student’s posting on the internet website Snapchat, which occurred off-campus, was protected by the First Amendment and therefore not subject to the school’s discipline.

The student in B.L. was a sophomore at Mahanoy Area School District.  Upset that for the second year in a row she did not make the varsity cheerleading team, B.L. took a photo of herself and her friend with their middle fingers raised and posted it to her Snapchat story.  Posted below the photograph was also a vulgar caption.

School officials became aware of the posting and suspended B.L. from the cheerleading team.  The school administrators believed that B.L.’s conduct violated several school and team rules.  B.L. and her parents subsequently filed suit in the United States District Court for the Middle District of Pennsylvania, alleging violations of B.L.’s First Amendment rights.

The District Court agreed with B.L. that her constitutional rights were violated, reasoning that B.L. did not waive her First Amendment rights by agreeing to the team rules.  The District Court also found that B.L. was afforded First Amendment protections even though B.L.’s speech stemmed from an extracurricular school activity (cheerleading).

On June 30, the Third Circuit affirmed the District Court.  Writing for the Court, Judge Krause stated that the Supreme Court’s 1969 seminal decision Tinker v. Des Moines “does not apply to off-campus speech – that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur….”  In Tinker, the Court held that the First Amendment protected students who wore black armbands to school to protest the Vietnam War.  Tinker made clear, however, that school officials could regulate speech that “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”

But, the B.L. Court held: “Tinker does not apply to off-campus speech and reserving for another day the First Amendment implications of off-campus student speech that threatens violence or harasses others.”  Importantly, B.L.’s Snap was speech which occurred “off campus” because the Snap was created “away from campus, over the weekend, and without school resources . . . and was shared on social media unaffiliated with school.”  Even though the school, particularly the cheerleading program, was mentioned in the Snap, and the content reached students and officials, precedent within the Third Circuit holds that “those few points of contact are not enough” to render the speech “on-campus” and subject to the school’s purview to regulate.

The B.L. Court thus reaffirmed the long-held principle that “the ‘school yard’ is not without boundaries and the reach of school authorities is not without limits.”  Furthermore, B.L. explained, “a student’s online speech is not rendered ‘on campus’ simply because it involves the school, mentions teachers or administrators, is shared with or accessible to students, or reaches the school environment.”

If you have any questions regarding this decision and its impact, please contact Attorneys Adam J. Tragone at atragone@smgglaw.com and Jordan Strassburger at jstrassburger@smgglaw.com.

*Co-Authored by Adam J. Tragone, Christopher J. Azzara and Erica L. Laughlin

Lawmakers in Pennsylvania have proposed legislation aimed at easing the burden on policyholders during the COVID-19 pandemic. The draft legislation, which has recently been referred to the House Insurance Committee, would extend property policies’ business interruption coverage to losses attributable to the coronavirus pandemic and social distancing rules that would not be covered by the plain language of the policy and/or would not be covered due to an exclusion.

After the SARS outbreak in 2003, some insurance companies added exclusions to their policies related to communicable diseases and viruses.  However, with the COVID-19 pandemic sweeping the globe, many state legislatures throughout the country have attempted to ease the burden on small businesses who have been affected by stay-at-home orders and social distancing.   Pennsylvania lawmakers, on April 3, 2020, introduced House Bill 2372 which would require insurers providing coverage for “loss or damage to property, which includes the loss of use and occupancy and business interruption” to include “coverage for business interruption due to global virus transmission or pandemic.”   Insurers would be mandated toprovide coverage to policyholders subject to “the broadest or greatest limit and lowest deductible afforded to business interruption coverage under the insurance policy,” the proposed legislation states.

However, the proposed law applies only to policies in effect on March 6, 2020, and issued to insureds with fewer than 100 eligible employees.  Insurers that pay out business interruption claims under the proposed act can apply to the Pennsylvania Insurance Commissioner for reimbursement, the proposed legislation states.

If you have any questions about your policy and whether it provides coverage for business interruption claims, please do not hesitate to contact Adam Tragone, at atragone@smgglaw.com, Christopher Azzara at cazzara@smgglaw.com, or Erica L. Laughlin at elaughlin@smgglaw.com.