On June 30, 2020, the U.S. Court of Appeals for the Third Circuit held in B.L. v. Mahanoy Area School District, No. 19-18421, that a high school student's off-campus speech was protected by the First Amendment to the same extent an adult's would be. The Third Circuit affirmed in a precedential opinion expressly holding for the first time that off-campus student speech was protected to the full extent afforded by the First Amendment and not subject to the well-known Tinker standard that applies to student speech in school.
BACKGROUND
Appellee B.L. failed to make her high school's varsity cheerleading team and, over a weekend and away from school, using her own smartphone, shared a picture of her'self at a local store with a caption including the words "fuck cheer" via Snapchat. The cheerleading coaches learned about the image and decided B.L.'s snap violated team and school rules, which B.L. had acknowledged before joining the team. Those rules required cheerleaders to "have respect for [their] school, coaches, . . . [and] other cheerleaders"; avoid "foul language and inappropriate gestures"; and refrain from sharing "negative information regarding cheerleading, cheerleaders, or coaches . . . on the internet." The coaches also felt B.L.'s snap violated a school rule requiring student athletes to "con'duct[] themselves in such a way that the image of the . . . School District would not be tarnished in any manner." She was suspended from the junior varsity team for a year and sued her school in federal court for violating her First Amendment rights.
The District Court granted sum'mary judgment in B.L.'s favor, ruling that the school vio'lated her First Amendment rights when it punished her.
THIRD CIRCUIT DECISION
The Third Circuit posited that there were two critical inquiries that required resolution. First, was B.L.'s snap protected speech? If not, that would end the inquiry. But if it were protected speech, the Court said that it then must decide whether B.L. waived that protection. The Third Circuit concluded that B.L.'s snap was protected and that she did not waive her right to post it.
In assessing whether B.L.'s speech was protected by the First Amendment, the Third Circuit first surveyed the law addressing student speech in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and its progeny. In Tinker, the Court famously stated that students do not "shed their constitutional rights to freedom of speech or expression...
