Third Circuit Broadens First Amendment Speech Protection for Students’ Off-Campus Speech

July 6, 2020
By Adam Tragone
Posted in Education, First Amendment Matters

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.