In a recent case, the Third Circuit held in Levy v. Mahanoy Area School District that a profane “snap” posted by a teenage girl was protected speech under the First Amendment. Today, any teen or young adult has grown up with Snapchat, an app that allows users to send their friends picture messages that disappear within a few seconds. Unless you take a “screenshot” of the message, the “snap” is gone forever. In the Levy case, student B.L.’s Snapchat resulted in her school suspending her.
What happened in Levy?
B.L., a student at Mahoney Area High School, tried out for the cheerleading team as a rising freshman, and she made the junior varsity team. The next year, instead of moving up to the varsity team, she remained in junior varsity. She was frustrated and disappointed that she had not moved up to the varsity team. The following Saturday, while spending time with friends. B.L. did what any teenager would do and took her frustrations to social media. She sent a Snapchat with her middle fingers up with the caption “f**k school, f**k softball, f**k cheer, f**k everything.” She posted this to her Snapchat “story,” meaning that the picture was visible to everyone on her friends list for 24 hours before disappearing from the app. One of B.L.’s teammates took a screenshot of the story and sent it to her cheerleading coach. As a result, B.L. was kicked off the cheerleading team.
B.L. and her parents sued. She brought three claims. First, her suspension from the team violated the First Amendment. Second that the school and team rules she was said to have broken are overbroad and amount to viewpoint discrimination, and third those rules are unconstitutionally vague. The District Court found in B.L.’s favor and held that B.L. had not violated her speech rights by joining the cheer team. The Court held that B.L.’s snap was off-campus speech and was not subject to regulation. The school district appealed.
The Third Circuit held that this was off-campus speech and was therefore protected by the First Amendment. Free Speech is not entirely curbed once a student enters school. However, school officials may regulate speech that “would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.’” Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Speech of this type can include the use of vulgar and offensive terms and discussions about illegal drug use. It can be hard to know what is “on campus” and what is “off-campus in the digital age.”
The vast majority of off-campus speech that is subject to regulation comes in the form of threats of violence against other school members. A typical example is plans of a school shooting.
B.L. 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. And while the snap mentioned the school and reached students at the school, this is not enough to make the snap “on campus” speech. As far as discipline is concerned, the Court held that B.L.’s snap was not subject to punishment under a 1968 Supreme Court case Bethal, a case that upheld the discipline of a student who gave a vulgar speech at a school assembly.
Although the snap was vulgar and rude, the Third Circuit held that public schools have an interest in teaching civility by example, persuasion, and encouragement, but they cannot be coercive. Otherwise, the school administrators would have the power to censor valuable speech and legitimate criticism. The School District is seeking Certiorari in the United States Supreme Court. It will be interesting to see if the Court addresses this important and current issue of First Amendment Law.
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