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Tuesday, June 29, 2021

Supreme Court Finds in Favor of Cheerleader in Social Media Speech Challenge

It's rare when we see a case involving the First Amendment and social media but even rarer when that case comes out of the U.S. Supreme Court. As many of you may have read in the news, B.L., a high school cheerleader, was suspended from participating in her school's cheerleading program after images and statements she made on social media were brought to the school's attention. According to the court, she posted the following in two Snapchat stories:

The first depicted B.L. and a friend with middle fingers raised, and bore the following caption (note that we have modified the swear words):

F**k school f**k softball f**k cheer f**k everything

The second image was blank, but included the following caption:

Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else? [this image also included an upside-down smiley face emoji]

B.L. had about 250 friends on Snapchat and at least one of them took a photo of the two images and shared them with School officials. Shortly after, B.L.'s JV cheerleading coaches suspended B.L. from cheerleading for the upcoming year.

B.L. sued, claiming that this decision violated her First Amendment free speech rights. Both the District Court and the Court of Appeals found in her favor, and held that the School had violated her rights when it suspended her from cheer for posting these messages on social media. The School appealed to the U.S. Supreme Court, which upheld the rulings in B.L.'s favor. Mahanoy Area School District v. B.L.

In its analysis, the Supreme Court acknowledged that previous Supreme Court cases had established that schools can regulate and restrict the speech of school children on school grounds and even off school grounds where a school is acting "in loco parentis."' The Supreme Court gave the example of schools regulating and controlling bullying between students on social media even when that conduct occurs off campus. However, the Supreme Court noted that schools do not have unfettered power to regulate students' off campus speech, and where that regulation impedes protected speech, it violates the First Amendment. Here, B.L.'s social media activities occurred off-campus and on B.L.'s personal cell phone, did not mention the school by name, and did not cause any substantial disruption at school. Instead, the messages conveyed criticism of a school decision, which the Court found was protected by the First Amendment. In short, the Supreme Court found the School's decision to suspend B.L. from the cheerleading squad for her off-campus criticism of the School to be a violation of her free speech rights under the First Amendment. 

This case is worth a read as it not only presents a thorough analysis of the Supreme Court's past rulings on student First Amendment rights but also discusses how these more "traditional" free speech cases apply to social media speech. I suspect we will see more and more of these First Amendment challenges in the context of social media speech in the future, and this case will provide some guidance on how a court might analyze those claims.


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