Special thanks to legal intern Maria Bacha who was the lead author of this post.

EFF, Student Press Law Center (SPLC), Pennsylvania Center for the First Amendment (PaCFA), and Brechner Center for Freedom of Information filed an amicus brief in B.L. v. Mahanoy Area School District urging the U.S. Court of Appeals for the Third Circuit to close a gap in the law to better protect off-campus student speech.

B.L., a student at Mahanoy Area High School, had tried out for the varsity cheerleading squad but had been placed on junior varsity. Out of frustration, she posted on Snapchat a selfie with the text “fuck school, fuck softball, fuck cheer, fuck everything” off school grounds on a Saturday. One of B.L.’s friends on Snapchat came across the “snap,” took a screen shot, and shared it with the cheerleading coaches. As a result, the coaches suspended B.L. from the junior varsity squad for one year. B.L.’s father appealed to the school board, which declined to get involved. B.L., through her parents, then filed a lawsuit against the district.

The U.S. District Court for the Middle District of Pennsylvania correctly held that B.L.’s off-campus speech was constitutionally protected. Thus, her public high school—a government institution bound by the First Amendment—could not lawfully punish her by suspending her from an extracurricular activity for her profanity. The school district appealed to the Third Circuit.

The district court relied on the Third Circuit’s prior decision in Snyder v. Blue Mountain School District (2011) to hold that B.L.’s profanity-laden “snap,” posted off campus and outside of school hours, was fully protected by the First Amendment. In Snyder, the Third Circuit interpreted the Supreme Court’s decision in Bethel School District No. 403 v. Fraser (1986) to hold that a public school may punish a student for vulgar on-campus speech—but that Fraser does not apply to off-campus speech.

One issue left open by the Third Circuit in Snyder is whether another Supreme Court student speech decision applies off campus: Tinker v. Des Moines Independent Community School (1969). That case 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.

The Third Circuit in Snyder expressly declined to address the question of whether Tinker’s substantial disruption test applies to off-campus student speech. The district court in this case correctly concluded, if Tinker were to apply off campus, that B.L.’s off-campus speech could not be punished under Tinker’s substantial disruption test, because her “snap” did not cause a likelihood of substantial disruption or actual substantial disruption in her high school.

EFF’s amicus brief endorsed the district court’s decision in support of B.L., and further urged the Third Circuit to reach the question left open by Snyder and expressly hold that Tinker’s substantial disruption test does not apply to off-campus student speech.

We also wrote that because social media is an increasingly important medium for off-campus student expression, it is even more important today than it was when the Third Circuit issued its decision in Snyder that the court reach this open question.

Our brief provided the court with statistics and examples of how social media has increasingly become an important platform for advocacy and activism for young people all over the world, who use it as a tool to promote causes they believe in and advocate for change. Given the high barriers to entry of traditional communication channels, such as broadcast television, young people use social media to raise awareness, disseminate information, and garner supporters for the issues they care about. Social media is also a powerful tool for students seeking to discuss and criticize aspects of their lives at school.

Students should be free to express themselves online, from off-campus locations, outside of school hours, about even potentially controversial topics, without having to worry that school officials will claim that their speech somehow caused or may cause a disruption at school. Tinker’s substantial disruption rule does not offer sufficient protection for off-campus student speech and thus the Third Circuit should take this opportunity to hold that students’ off-campus speech is entitled to full First Amendment protection.