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Justices hear First Amendment clash over cheerleader's Snapchat

The Supreme Court on Wednesday explored the extent of protections for student speech that occurs off campus, in a case that could break new First Amendment ground in the social media age.

Hearing arguments by phone, the court grappled with a dispute pitting a teen cheerleader against her Pennsylvania high school district, which imposed a yearlong suspension from the squad after she made a profane Snapchat post off campus and outside of school hours.

The justices struggled to apply decades-old precedents on the regulation of student speech amid a social media era that has increasingly blurred the line between campus life and private expression.

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“That sharp line I think you’re trying to draw between on campus and off campus, how does that fit with modern technology?” Chief Justice John Roberts asked an attorney representing the cheerleader. “I mean, it's a text or a snap that you send from the park, and it's read in the cafeteria. Is that off campus, or on campus?”

The Supreme Court, in a landmark school speech case decided more than 50 years ago, ruled that students do not “shed their constitutional rights ... at the schoolhouse gate.” But the court also said restrictions are permissible on speech that would substantially interfere with a school’s operations.

The dispute argued Monday asked the court to revisit that legal standard in a modern context. And where the justices draw the line could have major implications on everything from a student’s freedom to express controversial political opinions online without fear of school reprisal, to a principal’s ability to combat cyberbullying.

David Cole, the national legal director of the ACLU who is representing the high school student in the case, urged the justices to limit school officials’ regulatory reach to speech that occurs under the school’s supervision.

“I think you can do it the way this court has done it in all the schools speech cases,” Cole said, responding to a question from Justice Clarence ThomasClarence ThomasSupreme Court gets it wrong again, denying justice to those in uniform Overnight Defense: Top general drops objection to major change in prosecuting military sexual assault | Supreme Court declines to take up case from former West Point cadet | Pentagon says 'small' attacks not affecting Afghanistan withdrawal Supreme Court declines to hear case over former West Point cadet's rape allegations MORE about speech that appears on social media. “Does the school exercise supervision over the speaker? If it does, it can regulate it, subject to enhanced power. If it doesn't, it can't.”

He added the critical time frame for assessing whether a school has jurisdiction over a particular student's statement is the moment when the speaker acts — not when the message or post is read.

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“Of course, schools are perfectly permitted to ban cell phones, et cetera, in school,” he said, adding that the party to the suit, Mahanoy Area High School, has such a policy in place. 

The case arose after a high school student, identified in court papers as B.L., failed to make the varsity cheerleading team. During the weekend and while not on school grounds, she posted a Snapchat of herself and a friend, middle fingers raised, with the caption, “f--- school f--- softball f--- cheer f--- everything.”

In response, the school suspended her from the junior varsity cheerleading squad for a year, prompting the student’s lawsuit against the Mahanoy Area School District, located in central Pennsylvania.

A federal court in Pennsylvania sided with the student, which led to her being placed back on the cheerleading squad. The judge found her post was constitutionally protected and rejected the school’s argument that the teen had waived her First Amendment rights by joining the squad.

A Philadelphia-based federal appeals court affirmed the ruling below, prompting the school district’s appeal to the Supreme Court.

Lisa Blatt, of the law firm Williams & Connolly, represented the school district Monday. She blasted the lower court’s sharp distinction between on- and off-campus speech as “silly, arbitrary, unfounded (and having) no basis in any common sense.”

Blatt urged the justices to reject a rule that would anchor the application of its landmark 1969 decision in Tinker v. Des Moines Independent Community School District to a particular geographic location. A location-based rule would mean “all of a sudden it mattered if she had sent it from the school parking lot, and all of a sudden the school could look at it and apply Tinker.”

“Tinker would mystifyingly toggle in and out of coverage as kids move about the day,” she said.

Instead, Blatt argued, a better rule for assessing whether student speech can be subject to regulation would depend on if it targets the school environment and substantially disrupts school activities.

The Department of Justice argued in support of the school and of giving administrators latitude over certain off-campus speech.

A decision in the case, Mahanoy Area School District v. B.L., No. 20-255, is expected this summer.

— Updated at 1:12 p.m.