Free Speech

Supreme Court Holds Cheerleaders Can Swear on Snapchat

That’s not exactly what the Court held, but it’s pretty close.

As the Washington Post (among others) reported today, the U.S. Supreme Court has held in favor of a high-school cheerleader who was suspended for dropping F-bombs on Snapchat. Mahanoy Area School District v. B.L., No. 20-255 (U.S. June 23, 2021). In an 8-1 decision, the Court held that while public schools may have a special interest in regulating some off-campus student speech, on the facts here the student’s interest in free expression outweighed the school’s interest in stifling it.

You should be unsurprised to learn that the lone dissenter was Justice Clarence Thomas, who remains steadfast in his belief that students are to be afforded those rights, and only those rights, that they had in 1789, or as he begrudgingly allowed in this case, 1868.

The facts are relatively simple. B.L., whose full name is available in almost any discussion of this case except for the Court’s opinion, was a high-school freshman at the time of the relevant events. She tried out for the varsity cheerleading squad and for a (non-school) softball team, but was not selected for either position. She was offered a spot on the junior-varsity cheerleading squad, but, as Justice Breyer put it, she “did not accept the coach’s decision with good grace.”

The most visible manifestation of this was on Snapchat, where she posted two photos to her “story” that could be viewed by “friends” (Justice Breyer uses the quote marks for both terms) for a 24-hour period, after which they would be deleted. Deleted from Snapchat, at least, and that limitation turned out to be a problem. The second photo was really only a caption, expressing displeasure that another freshman had, in fact, made the varsity team, though B.L. had been told a “year of jv” was required first (whatever!). Justice Breyer notes that this photo “also contained an upside-down smiley-face emoji,” but it appears that no one found this (or the caption) problematic.

The problem was the first photo, which showed B.L. and a friend with middle fingers raised and a caption stating: “F*** school f*** softball f*** cheer f*** everything.” The caption did not use asterisks, nor did Justice Breyer. (I also would not use them, except that some lawyers at my firm subscribe to this thing by email. Believe me, there would be a sh*tload of profanity here if that weren’t the case.) And though this vanished from Snapchat, it turns out Snapchat is connected to the internet, and things to which the internet has access rarely “vanish” completely. Here, 24 hours was more than enough time for at least one of B.L.’s “friends” to save and distribute the item, and, as Justice Breyer puts it, “the images spread.” After they reached school administrators, B.L. was suspended from the cheer squad.

To correct this injustice, a federal lawsuit was filed.

To be fair, while it seems a bit odd for the United States Supreme Court to be reviewing decisions regarding high-school cheerleading squads, the case involved the recurring issue of what First Amendment rights students have, if any. As you may recall, that issue has reached the Supreme Court several times, at least once involving equally ridiculous facts. See No Protection for ‘BONG HiTS 4 Jesus’” (June 25, 2007) (discussing Morse v. Frederick). In that case, a narrow 5-4 majority held, after balancing the interests involved, that a student could be punished for unfurling such a banner across the street from his school. One of the five was Justice Thomas, who wrote separately to express his view that students have no free-speech rights, at all, because, “[d]uring the colonial era, … teachers managed classrooms with an iron hand.” Among other authorities, he cited an 1859 Vermont case affirming a teacher’s right to beat a student for calling him “Old Jack Seaver.” (His name was Jack Seaver—that wasn’t some kind of slang term—so it was really for calling him “old.”) If students have no protection from beatings, the argument apparently goes, they certainly are not protected from censorship. The other four justices in the majority weren’t willing to go quite that far.

In B.L.’s case, both lower courts held in her favor. Applying the standard set in Tinker v. Des Moines Independent Community School District, the district court found the balance weighed in favor of B.L. because there was no evidence this kerfuffle (or, if you prefer, brouhaha) had substantially interfered with the work of the school. The Third Circuit affirmed, but also said that because this speech was “off campus,” Tinker didn’t apply, meaning the school had no business regulating the speech. The Supreme Court took the case to address the “off campus” rationale, and held there is no such bright-line distinction. (It also didn’t define “off campus,” which will likely be an issue in the future.)

It did say that schools will rarely have much of an interest in regulating off-campus speech, which should generally be left to parents, and that they are very unlikely to have any right to interfere with off-campus “political or religious speech.” It also reminded schools that they have an interest, or should have an interest, in protecting free speech even if it’s unpopular—that being sort of what the First Amendment is all about. Applying Tinker with these principles in mind, the majority held that the student won. Justices Alito and Gorsuch wrote separately to discuss the various interests more fully, saying this was the first time the Court had addressed “true off-premises student speech”—consistent with the Court’s view in the Bong Hits case that “on school premises” includes “across the street from school premises.” But they concurred in the outcome.

Unlike Justice Thomas, who sent a telegram from the 19th century to remind everybody that, at that time, students could be beaten for calling a teacher “old,” and “[i]f there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it.” He does seem to have moved his point of reference from 1789 to 1868, the year the 14th Amendment was ratified, incorporating at least part of the Bill of Rights to make them applicable against the states. So I guess that’s progress, but it wouldn’t have helped B.L. here. Thomas suggests the Court should focus on the “effects” of the speech, not where it was uttered, although he does agree that in this case, it was “off campus.” But again, to him that doesn’t matter, because 1868.

For now, though, Justice Thomas remains the only vote in favor of the Old Jack Seaver Doctrine. If his progressive tendencies continue, his view might make it into the early 20th century by the time he retires, but my guess is that he’ll continue to hold the line.