Federal Court Says Teen's 'Fuck Cheer' Is Protected Speech

from the fuck-censorship dept

Pennsylvania teens will be relieved to know their Constitutional right to disparage their school remains intact. A lawsuit brought by a student who was suspended for expressing her displeasure with several school traditions has been given the federal court seal of approval.

At the heart of the case is a string of Snapchatted F-bombs. The student, referred to only as B.L., expressed her displeasure using curse words — a teen tradition that dates back at least as far as the traditions she expressed her displeasure with. The decision [PDF] recounts the sweary events leading to this Constitutional violation, which began with B.L. being passed over for a varsity cheerleading spot:

Posing in street clothes with a friend, middle fingers raised, B.L. took a “selfie” at the Cocoa Hut, a local store and student stomping ground. On top of the photo, B.L. added the following text: “fuck school fuck softball fuck cheer fuck everything.” B.L. then posted the captioned photo—the “Snap”—on her private Snapchat account, where it could have been viewed briefly by about two-hundred and fifty (250) of her friends. She posted a follow-up Snap just after, reading: “Love how me and [my friend] get told we need a year of jv before we make varsity but that[] doesn’t matter to anyone else?” Many of B.L.’s friends on Snapchat are students at District schools; some are fellow cheerleaders.

One of B.L.’s Snapchat “friends” — who also happened to be a cheerleader and a cheerleading coach’s daughter — took screenshots of this Chat and brought it to the cheerleading coaches. The coaches kicked B.L. off the team, suspending her from cheer activities for an entire year. Supposedly, this was due to multiple complaints about words that routinely come out of teenagers’ mouths.

The coaches also claimed B.L. had violated the cheer team rules with her “fuck cheer” post. Specifically, her Snapchat post violated the “Negative Information Rule,” which states:

“There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.”

The court notes that students’ Constitutional rights do not end when they enter the school. The district argues students’ rights “end” if students waive these rights, as it claims B.L. did when she agreed to not post “negative information” about the cheer program on the internet. The court points out this waiver could hardly be considered voluntary.

[N]either B.L. nor her mother had bargaining equality with the coaches or the school; the Cheerleading Rules were not subject to negotiation; and B.L. and her mother were not represented by counsel when they agreed B.L. would abide by the Rules. Additionally, conditioning extracurricular participation on a waiver of a constitutional right is coercive.

After deciding B.L. retained her First Amendment rights despite the wording of the cheer team agreement, the court moves on to dismantle the district’s other defense: that B.L. had no Constitutional right to engage in extracurricular activities. As the court points out, this determination is irrelevant to determining whether or not B.L.’s rights were violated by her suspension from the cheer team. The district wants the court to approach the question from the wrong side. The court declines the district’s invitation to enter the argument through the back door.

I agree with B.L. What the District’s argument does is put the constitutional cart before the horse. […] The issue with this reasoning, which assumes all student athlete speech is ipso facto less protected, see Lowery v. Euverard, 497 F.3d 584, 605 (6th Cir. 2007) (Gilman, J., concurring in the judgment) is two-fold: it muddies the First Amendment analysis, and conflates it with Due Process analysis.

[…]

The right a public school infringes by punishing a student for protected speech is not the right to education or to play a sport, it is the right to freedom of speech.

In the end, the court finds the school’s punishment of B.L. was unconstitutional. While it recognizes students engaging in extracurricular activities may be subject to more rules governing their behavior, the rules cannot infringe on their protected rights. Speech that occurs outside of the school walls is not completely out of reach of the school’s disciplinary policies, but the school needs to show the severely disruptive effect this extracurricular speech caused. In this case, all the district could point to were claims by cheer coaches the f-bombs had the potential to be disruptive.

If teens dropping F-bombs on or off school property were enough to disrupt schools, approximately 0% of the nation’s high schools would be operational for more than a few hours at a time, much less the entire school year. “Fuck cheer” is protected expression. The fact that the school doesn’t like hearing its activities criticized doesn’t budge the free speech needle.

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Comments on “Federal Court Says Teen's 'Fuck Cheer' Is Protected Speech”

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47 Comments
Anonymous Coward says:

the Cheerleading Rules were not subject to negotiation; and B.L. and her mother were not represented by counsel when they agreed B.L. would abide by the Rules.

Hmm… my phone contract is not subject to negotiation (believe me, I’ve tried, and they don’t like you messing with their "contract"). I was not represented by counsel when I agreed to their terms.

Same goes for any EULA.

So does that mean that these agreements have as much weight?

Anonymous Coward says:

Re: Re:

Well then perhaps prospective employers shouldn’t be allowed to decide whether to hire someone based on the legal activities they partake in on their off-duty, personal, private time.

As someone else said, if such things were based on whether or not someone said a bad word at any time in the past, everything would shut down pretty quick due to mass firings of the entire workforce.

btr1701 (profile) says:

Re: Re: Re:

Well then perhaps prospective employers shouldn’t be allowed to decide whether to hire someone based on the legal activities they partake in on their off-duty, personal, private time.

Don’t be ridiculous. No business should have to hire (or retain) an employee who is a spokesman for the Ku Klux Klan and marches in sheet on weekends.

Being a Klan member and engaging in ‘hate speech’ is a legal activity– it violates no law– but having such an employee can destroy a business, which is why businesses are allowed to fire (or not hire) such employees.

Anonymous Coward says:

The coaches also claimed B.L. had violated the cheer team rules with her "fuck cheer" post. Specifically, her Snapchat post violated the "Negative Information Rule," which states:
“There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.”

I’m curious, which part of "fuck cheer" is negative information (i.e., facts) about this school’s cheerleading, cheerleaders, or coaches? Are the coaches saying that there is actual fucking going on in there? Because it looks to me like that’s what they’re saying 🙂

Anonymous Coward says:

Re: Re:

Well clearly their grammar and vocabulary choices are downright fucking atrocious since they defined it as ‘negative information’ instead of disparagement. Saying fuck something isn’t information -it is an opinion. Negative information is either a literal impossibility (how do you store a terrabyte on a floppy disk? Add a lot of negative information first!) or inconvenient facts like say they came in last in a competition.

Bamboo Harvester (profile) says:

Re: Re: Film at 11...

Where did I say it was not her right?

She won her court case. But… was she elevated to Varsity? Will her inability to follow simple rules aid or harm her on job applications? Will her willingness to literally make a Federal Case out of not getting her way help or hurt her future?

The school’s rule was poorly written, and that particular line of attack in court was foolish.

She was simply not good enough to make Varsity – and as a cheerleader, no less.

So she threw a hissycow about it, possibly unknowing of the rule regarding "negatives" (it’s probably like a EULA).

When she was suspended from the squad for doing so, someone decided to bring it to court, and I’ve got to believe that it was for the purpose of making money off a lawsuit.

Hey, maybe they’ll lift the suspension and give her a Varsity standing. And put her right out front where her competence can shine…

Bamboo Harvester (profile) says:

Re: Re: Re:2 Film at 11...

Offended? Not at all. Annoyed that we just spent millions in court costs on a case that involved a teenager’s petulance? Yup, I am.

There’s an amount of decorum required for social interactions. Teenagers aren’t exempt from such, but we’ve always made some exceptions for them, as petulance, snottiess, and rudeness is expected from the immortal, indestructible, omniscient beings that teens feel themselves to be.

Anonymous Coward says:

Re: Re: Re:5 Film at 11...

She broke the rules she agreed to in order to be part of that team.

If part of your hiring contract says you’ll be fired if you call the boss "Flibbertigibbet" publicly, do you have 1st Amendment grounds to stand on if you’re fired for doing so?

How can you not see the plainly obvious fact that this is a public gov’t school, which has to follow the damn constitution, such that rules which deny one’s right to free speech are not valid rules.

Now, a contract with a private business is a completely different arena in the realm of 1st amendment protections.

Do you not see the difference?

Anonymous Coward says:

Re: Re: Re:7 Film at 11...

How can you not see the difference between following a rules list for a team

Wasn’t the point of the entire article about how a federal court ruled that the rules were unconstitutional and that her speech is still protected speech?

Oh wait, it’s right there in the title of the article!!!

Anonymous Coward says:

Re: Re: Re:3 Film at 11...

Annoyed that we just spent millions in court costs on a case that involved a teenager’s petulance?

You talk a lot about the teen being petulant, but let’s talk about the school. The only reason, after all, that there were "millions in court costs" is that the school, faced with the fact that they violated clearly established rights of their student, put their fingers in their ears saying "nah, nah, nah I can’t hear you" and proceeded to throw away said millions fighting it out in court. If we’re talking about petulance, spending millions fighting a case that was lost before it even started has to win some kind of award. Someone who, say, had some decorum, would admit they were wrong and settle long before they saw a courtroom because people with decorum don’t deliberately waste millions in tax dollars defending their blatant constitutional violations in an attempt to preserve their authoritarian power fantasies.

There’s an amount of basic respect for the social contract required for social interactions. Schools aren’t exempt from such, and trying to make an exception for them because they hid their petulance, snottiness, and power trips behind a veneer of decorum is, frankly, disgusting.

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