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The New York Times
Cheerleader’s vulgar message sparks a First Amendment showdown
WASHINGTON – It was a Saturday in the spring of 2017 and a ninth grader in Pennsylvania was having a bad day. He had just learned that he had been unable to make the varsity cheerleading team and that he would remain on the junior varsity team. The student expressed her frustration on social media, sending a Snapchat message to about 250 friends. The message included an image of the student and a friend with their middle finger raised, along with text that expressed a similar sentiment. Using a swear word four times, the student expressed dissatisfaction with “school,” “softball,” “encouragement,” and “everything.” Sign up for the New York Times The Morning newsletter Although Snapchat messages are ephemeral by design, another student took a screenshot of it and showed it to his mother, a coach. The school suspended the student from cheerleading for a year, saying the punishment was necessary to “avoid chaos” and maintain a “team atmosphere.” The student sued the school district and won a major victory in the US Third Circuit Court of Appeals in Philadelphia. The court said the First Amendment did not allow public schools to punish students for speaking outside of school grounds. Next month, at its first private conference after the holidays, the Supreme Court will consider whether to hear the case, Mahanoy Area School District v. BL, No. 20-255. The Third Circuit ruling is in tension with the decisions of various other courts, and such divisions often invite Supreme Court review. Urging judges to hear the case, the school district said administrators across the country needed a final ruling from the Supreme Court on their power to discipline students for what they say outside of school. “The question that is being presented is constantly repeated and has become even more urgent as COVID-19 has forced schools to operate online,” said a report for the school district. “Only this court can resolve this First Amendment threshold issue that plagues the nation’s nearly 100,000 public schools.” Justin Driver, professor of law at Yale and author of “The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind,” agreed with the school district, to some extent. ” It’s hard to overstate what is at stake on this constitutional issue, “he said. But he added that schools don’t have to tell students what they can say when they’re not in school.” In the modern era, a tremendous percentage of the Juvenile speech happens off-campus but online, ”he said.“ Court decisions that allow schools to regulate off-campus speech that criticizes public schools are contrary to the First Amendment. Such decisions allow schools to reach to the home of any student and utter verboten critical statements, something that should deeply alarm all Americans. ”The key precedent is from a different time. In 1969, in Tinker v. Des Moines Independent Community School District, the Court Suprema allowed students to wear black armbands to protest the Vietnam War, but said the disturbing speech, at least on the grounds of the is sneak in, could be punished Campus and off was easier in 1969, before the rise of social media. These days, most courts have allowed public schools to discipline students for social media posts as long as they are linked to school activities and threaten to disrupt them. A divided panel of three 3rd Circuit judges took a different approach, announcing that a This rule would appear to limit the ability of public schools to address many types of disruptive speech from students on social media, including racist threats and cyberbullying. In a concurring opinion, Judge Thomas L. Gardens. It would have been enough, he said, to say that his speech was protected by the First Amendment because it did not disrupt school activities. Most were wrong, he said, to protect all off-campus speech. In a brief urging the Supreme Court to hear the school district’s appeal, the Pennsylvania School Boards Association said the line drawn by the Third Circuit was too rough. ” A disturbing or harmful tweet is sent from the school cafeteria or after the student has crossed the street on her way home, it has the same impact, ”the writing says. “The formalist rule of the Third Circuit leaves schools powerless whenever a hateful message is launched from off campus.” The student, represented by attorneys from the American Civil Liberties Union, told the Supreme Court that the First Amendment protected her “colorful expression of frustration, made on a fleeting Snapchat on her personal social media, on a weekend away from campus, without threats, harassment, or mention of his school, and that he did not cause or threaten any disruption to his school. ”The brief focused on that last point, and he didn’t spend long advocating the broader third circuit approach. Supreme Court has a reputation for protecting First Amendment rights. Chief Justice John Roberts, in an appearance at law school last year, described himself as “probably the most aggressive defender of the First Amendment. in court now. “But the court has been methodically curtailing the rights of First Amendment students since the Tinker decision in 1969. And in the last major decision In 2007, Roberts wrote the majority opinion, siding with a principal who had suspended a student for displaying a banner that read “Bong Hits 4 Jesus.” Driver Said that suggested a blind spot. “There is at least one important area in which Chief Justice Roberts’ First Amendment defense is remarkably lax: student discourse,” he said. “I fervently hope that Roberts will regain his love of the First Amendment when the court finally resolves this pressing issue.” This article originally appeared in The New York Times. (C) 2020 The New York Times Company
