The U.S. Court of Appeals for the Third Circuit issued an historic opinion in B.L. v. Mahanoy Area School District, upholding the free speech rights of public school students. The court adopted the position EFF urged in our amicus brief that the First Amendment prohibits disciplining public school students for off-campus social media speech.
B.L. was a high school student who had failed to make the varsity cheerleading squad and was placed on junior varsity instead. Out of frustration, she posted—over the weekend and off school grounds—a Snapchat selfie with text that said, among other things, “fuck cheer.” One of her Snapchat connections took a screen shot of the “snap” and shared it with the cheerleading coaches, who suspended B.L. from the J.V. squad for one year. She and her parents sought administrative relief to no avail, and eventually sued the school district with the help of the ACLU of Pennsylvania.
In its opinion protecting B.L.’s social media speech under the First Amendment, the Third Circuit issued three key holdings.
Social Media Post Was “Off-Campus” Speech
First, the Third Circuit held that B.L.’s post was indeed “off-campus” speech. The court recognized that the question of whether student speech is “on-campus” or “off-campus” is a “tricky” one whose “difficulty has only increased after the digital revolution.” Nevertheless, the court concluded that “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.”
Therefore, B.L.’s Snapchat post was “off-campus” speech because she “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.”
The court quoted EFF’s amicus brief to highlight why protecting off-campus social media speech is so critical:
Students use social media and other forms of communication with remarkable frequency. Sometimes the conversation online is a high-minded one, with students “participating in issue- or cause-focused groups, encouraging other people to take action on issues they care about, and finding information on protests or rallies.”
Vulgar Off-Campus Social Media Speech is Not Punishable
Second, the Third Circuit reaffirmed its prior holding that the ability of public school officials to punish students for vulgar, lewd, profane, or otherwise offensive speech, per the Supreme Court’s opinion in Bethel School District No. 403 v. Fraser (1986), does not apply to off-campus speech.
The court held that the fact that B.L.’s punishment related to an extracurricular activity (cheerleading) was immaterial. The school district had argued that students have “no constitutionally protected property right to participate in extracurricular activities.” The court expressed concern when any form of punishment is “used to control students’ free expression in an area traditionally beyond regulation.”
Off-Campus Social Media Speech That “Substantially Disrupts” the On-Campus Environment is Not Punishable
Third, the Third Circuit finally answered the question that had been left open by its prior decisions: whether public school officials may punish students for off-campus speech that is likely to “substantially disrupt” the on-campus environment. School administrators often make this argument based on a misinterpretation of the U.S. Supreme Court’s opinion in Tinker v. Des Moines Independent Community School District (1969).
Tinker involved only on-campus speech: students wearing black armbands on school grounds, during school hours, to protest the Vietnam War. The Supreme Court held that the school violated the student protestors’ First Amendment rights by suspending them for refusing to remove the armbands because the students’ speech did not “materially and substantially disrupt the work and discipline of the school,” and school officials did not reasonably forecast such disruption.
Tinker was a resounding free speech victory when it was decided, reversing the previously widespread assumption that school administrators had wide latitude to punish student speech on campus. Nevertheless, lower courts have more recently read Tinker as a sword against student speech rather than a shield protecting it, allowing schools to punish student off-campus speech they deem “disruptive.”
The Third Circuit unequivocally rejected reading Tinker as creating a pathway to punish student off-campus speech, such as B.L.’s Snapchat post. The court concisely defined “off-campus” speech as “speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”
The Third Circuit noted that EFF was the only party to argue that the court should reach this holding (p. 22 n.8). The court reasoned that “social media has continued its expansion into every corner of modern life,” and that it was time to end the “legal uncertainty” that “in this context creates unique problems.” The court stated, “Obscure lines between permissible and impermissible speech have an independent chilling effect on speech.”
Possible Limits on Student Social Media Speech
The Third Circuit clarified that schools may punish on-campus disruption that was caused by an off-campus social media post when a “student who, on campus, shares or reacts to controversial off-campus speech in a disruptive manner.” That is, a “school can punish any disruptive speech or expressive conduct within the school context that meets” the Supreme Court’s demanding standards for actual and serious disruption of the school day.
Thus, “a student who opens his cellphone and shows a classmate a Facebook post from the night before” may be punished if that post, by virtue of being affirmatively shared on campus by the original poster, “substantially disrupts” the on-campus environment. Similarly, if other students act disruptively on campus in response to that Facebook post, they may be punished—but not the original poster if he himself did not share the post on campus.
Additionally, the Third Circuit “reserv[ed] for another day the First Amendment implications of off-campus student speech that threatens violence or harasses others,” an issue that was not presented in this case.
Supreme Court Review Possible
The Third Circuit’s opinion is historic because it is the first federal appellate court to affirm that the substantial disruption exception from Tinker does not apply to off-campus speech.
Other circuits have upheld regulating off-campus speech citing Tinker in various contexts and under different specific rules, such as when it is “reasonably foreseeable” that off-campus speech will reach the school environment, or when off-campus speech has a sufficient “nexus” to the school’s “pedagogical interests.”
The Third Circuit rejected all these approaches. The court argued that its “sister circuits have adopted tests that sweep far too much speech into the realm of schools’ authority.” The court was critical of these approaches because they “subvert the longstanding principle that heightened authority over student speech is the exception rather than the rule.”
Because there is a circuit split on this important First Amendment student speech issue, it is possible that the school district will seek certiorari and that the Supreme Court will grant review. Until then, we can celebrate this historic win for public school students’ free speech rights.