New opinion: Third Circuit rules for the student in a major student-speech case

B.L. v. Mahanoy Area S.D.—First Amendment—affirmance—Krause

This is a pretty darn highbrow blog, so, left to my own devices, I’d probably have euphemism-ed my way around the factual heart of this case. But, hey, if the august Court can say it, I should too. So: a public high school student who didn’t make her school’s varsity cheerleading squad posted a photo captioned “fuck cheer” online. Well, actually, it was captioned, “Fuck school fuck softball fuck cheer fuck everything,” but I suspect it shall be remembered to history as the “fuck cheer” case.

Anyway, the cheerleading coaches weren’t amused, and they duly cut her from JV cheerleading team and the school and the district upheld their action, so she sued, alleging violation of her First Amendment free-speech rights. The district court granted her summary judgment, and today the Third Circuit affirmed.

The Court first held that the student’s claim was subject to the standard applicable to off-campus speech, rather than the circuit’s more-speech-limiting standard (derived from Tinker) for on-campus speech. It then held that punishing her for her post (her “snap,” the more-with-it-than-I opinion calls it, since it occurred on an app called Snapchat) violated her free-speech rights, rejecting the district’s argument that it should apply a more speech-limiting standard because the speech involved an extracurricular activity, which is sort of a fuck-cheer argument if you think about it, no? The court split with various other circuits on the questions of how and whether Tinker‘s standard applies to off-campus speech.

Judge Ambro concurred in the judgment, arguing that the panel should have ruled on narrower circuit-precedent grounds without deciding how Tinker applies to off-campus speech: “I dissent [from the Tinker holding] because it is a fundamental principle of judicial restraint that courts should “neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” He concludes:

The craft of judging has a restraining principle: Do not decide today what can be decided tomorrow, for tomorrow it may not need to be decided. We twist that tenet today by a wide-reaching holding for facts outside the question my colleagues call. In J.S., despite a well-reasoned concurrence urging that Tinker not apply to off-campus student speech,
J.S., 650 F.3d at 936–41 (Smith, J.), our en banc decisions in both it and Layshock declined to go that far. Yet a panel does so today with no more compelling context than either en banc case. Our task is to balance tolerance for expressive conduct with the need for order in our schools. The test in Tinker— whether student speech reasonably “forecast[s] substantial disruption of or material interference with school activities,” 393 U.S. at 514—is the law we applied en banc, and it no doubt works here to rule in B.L.’s favor. Why go further until it is needed?

It’s a fascinating and revealing conversation about how judges should judge. My crystal ball says a petition for rehearing en banc is certain to be filed and likely to get an extra-serious look, but no predictions about whether it will be granted.

Joining Krause was Bibas, with Ambro concurring in the judgment. Arguing counsel were Sara Rose of ACLU Pa. for the student and Michael Levin of Levin Legal Group for the school district.