Third Circuit Court Of Appeals: Fuck Cheer, Indeed

from the suck-it,-admins dept

A little more than a year ago, a federal court was asked how much First Amendment do we hand out to minors? Well, it's more than this particular school thought. The Pennsylvania school being sued was pretty sure it could draw the First Amendment line wherever it felt was appropriate. That's why administrators took action against a teen cheerleader (referred to in the lawsuit as "B.L.") when she decided to express her displeasure with her extracurricular activities with some extra-colorful language.

B.L. took to Snapchat to rant about her cheerleading experience, culminating in a "fuck school fuck softball fuck cheer fuck everything" post that the school decided violated B.L.'s agreement not to disparage the school or its cheer program. The school agreed that students had Constitutional rights, but that B.L. had waived hers when she joined the cheerleading program. The federal court disagreed, stating that the revocation of rights must be voluntary, but B.L.'s wasn't really of the free will and volition variety.

[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.

Also:

Additionally, conditioning extracurricular participation on a waiver of a constitutional right is coercive.

Having learned a valuable lesson about the First Amendment and how voluntary agreements should actually be voluntary, the school walked away from the suit chastened and newly respectful of students' rights.

Oh wait. The other thing.

The school appealed, determined to waste more taxpayer money attempting to secure judicial blessing to screw taxpayers' offspring. And the Third Circuit Court of Appeals says the First Amendment still holds.

Before we get to the heart of the First Amendment affirmation [PDF] delivered by the Third Circuit, let's stop and appreciate this brief discussion of emojis.

B.L. was frustrated: She had not advanced in cheerleading, was unhappy with her position on a private softball team, and was anxious about upcoming exams. So one Saturday, while hanging out with a friend at a local store, she decided to vent those frustrations. She took a photo of herself and her friend with their middle fingers raised and posted it to her Snapchat story. 1 The snap was visible to about 250 “friends,” many of whom were MAHS students and some of whom were cheerleaders, and it was accompanied by a puerile caption: “Fuck school fuck softball fuck cheer fuck everything.” J.A. 484. To that post, B.L. added a second: “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else? 🙃?.”2

Here's the footnote appended to the inverted smiley:

The “upside-down smiley face” emoji “indicate[s] silliness, sarcasm, irony, passive aggression, or frustrated resignation.” Upside-Down Face Emoji, Dictionary.com, https://www.dictionary.com/e/emoji/upside-down-face-emoji (last visited June 25, 2020).

A wealth of emotions contained concisely. If brevity is the soul of wit, I have severely underestimated the incredible depth of the text messages I've received from my offspring. That being said, it's great to see courts willing to discuss emojis since they're going to be an inescapable part of First Amendment jurisprudence for the foreseeable (and unforeseeable, if we're honest) future.

The court makes quick work of the First Amendment arguments. Is this speech protected? Yes. Tinker says so and has said so for years. Online communication platforms can blur the line between on-campus and off-campus speech, but the courts should err on the side of caution rather than draw harmful conclusions that damage free speech protections this country has respected since its conception.

The courts’ task, then, is to discern and enforce the line separating “on-” from “off-campus” speech. That task has been tricky from the beginning. See, e.g., Thomas, 607 F.2d at 1045–47, 1050–52 (declining to apply Tinker to a student publication because, although a few articles were written and stored at school, the publication was largely “conceived, executed, and distributed outside the school”). But the difficulty has only increased after the digital revolution. Students use social media and other forms of online communication with remarkable frequency. Sometimes the conversation online is a high-minded one, with students “participating in issue- or cause-focused groups, encouraging other people to take action on issues they care about, and finding information on protests or rallies.” Br. of Amici Curiae Electronic Frontier Foundation et al. 13. Other times, that conversation is mundane or plain silly. Either way, the “omnipresence” of online communication poses challenges for school administrators and courts alike.

[...]

The lesson from Reno and Packingham is that faced with new technologies, we must carefully adjust and apply—but not discard—our existing precedent. The thrust of that lesson is not unique to the First Amendment context. But it may be of special importance there because each new communicative technology provides an opportunity for “unprecedented” regulation. Packingham, 137 S. Ct. at 1737. And even when it is unclear whether the government will seize upon such an opportunity, the lack of clarity itself has a harmful “chilling effect on free speech.” Reno, 521 U.S. at 872. Updating the line between on- and off-campus speech may be difficult in the social media age, but it is a task we must undertake.

When B.L. hopped on Snapchat to deliver a set of derogatory F-bombs about her school experience, she did so with the force of the First Amendment behind her. This was about school. This was not of the school, so to speak.

Applying these principles to B.L.’s case, we easily conclude that her snap falls outside the school context. This is not a case in which the relevant speech took place in a “school-sponsored” forum, Fraser, 478 U.S. at 677, or in a context that “bear[s] the imprimatur of the school,” Kuhlmeier, 484 U.S. at 271. Nor is this a case in which the school owns or operates an online platform. Cf. Oral Arg. Tr. 25 (discussing a “school listserv”). Instead, 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 MAHS students and officials, J.S. and Layshock hold that those few points of contact are not enough. B.L.’s snap, therefore, took place “off campus.”

Good stuff, but it gets even more entertaining here. The Appeals Court cited Tinker in support of its respect of the student's free speech rights. The school cited Tinker in support of its refusal to respect the First Amendment rights of the student. Guess who's actually correct.

The Tinker test asks whether or not contested speech might reach the school and leapfrog the gap between on-campus and off-campus. The Appeals Court says that's an inevitability in the social media age. But that doesn't change the underlying rationale. The question isn't whether f-bombs on social media will be seen by other students. That's always a possibility. The question is whether the student's speech is perceived to be a representation of the school itself. In this case, the student's Snapchat messages could not have been seen as a proxy for the school's speech. It was solely the disgruntled cheerleader's protected expression of displeasure.

We hold today that Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.

The Appeals Court lays down the ground rules for further school-related free speech challenges. Social media platforms may have muddied the waters but the court wades in to draw a bright line.

[A] test based on whether the speech occurs in a context owned, controlled, or sponsored by the school is much more easily applied and understood. That clarity benefits students, who can better understand their rights, but it also benefits school administrators, who can better understand the limits of their authority and channel their regulatory energies in productive but lawful ways.

Finally, the court addresses the school's contention that B.L. waived her rights when she agreed to participate in the cheerleading program. Whether or not the waiver was valid, the rule that waived it didn't apply to B.L.'s fuck parade.

B.L.’s snap contained foul language and disrespected her school and team. But the rule’s language suggests it applies only “at games, fundraisers, and other events,” a suggestion echoed by its invocation of “[g]ood sportsmanship.” Id. That would not cover a weekend post to Snapchat unconnected with any game or school event and before the cheerleading season had even begun. And common sense supports this reading: It is hard to believe a reasonable student would understand that by agreeing to the Respect Rule, she was waiving all rights to malign the school once safely off campus and in the world at large. Indeed, one of the cheerleading coaches recognized that the rule “doesn’t say anything about not being able to use foul language or inappropriate gestures . . . away from school.” J.A. 90. So this rule is of no help to the School District.

The court's conclusion? We personally may not have chosen to deploy a mixture of swear words and emoji to convey our thoughts but that doesn't make this conveyance of thoughts any less worthy of First Amendment protection.

The heart of the School District’s arguments is that it has a duty to “inculcate the habits and manners of civility” in its students. Appellant’s Br. 24 (citation omitted). To be sure, B.L.’s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so. Otherwise, we give school administrators the power to quash student expression deemed crude or offensive—which far too easily metastasizes into the power to censor valuable speech and legitimate criticism. Instead, by enforcing the Constitution’s limits and upholding free speech rights, we teach a deeper and more enduring version of respect for civility and the “hazardous freedom” that is our national treasure and “the basis of our national strength.” Tinker, 393 U.S. at 508–09.

Fuck cheer, indeed. Students of the Third Circuit: rejoice. The court has your foul-mouthed backs.

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Filed Under: 1st amendment, 3rd circuit, free speech, schools


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  • identicon
    Anonymous Coward, 20 Jul 2020 @ 1:59pm

    I feel like administrators who pursue these types of tax-wasting efforts to fight for their ability to be heavy-handed in disciplinary actions need to be fired. Does anyone think that a school going to court over disciplining a student after they've already lost is in the good interests of the students?

    If anyone thinks it's in the interest of the school but not the students, then they don't understand that the school should be in the interest of the students. It's not a respect-for-authority factory.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jul 2020 @ 2:02pm

      Re:

      It makes a handful of administrators feel powerful for a few fleeting moments. You just can't put a price on that.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 21 Jul 2020 @ 5:26pm

      Re:

      A teacher who gets caught red-handed committing felonies will usually be fired long before the case makes its way through the court.

      A public official - which public includes school teachers and administrators - commits a felony when they conspire to use their official authority to violate the rights of any citizen.

      Why then, does this particular felony get a pass from the school board, where other felonies - both violent and not - result in suspension or even termination of employment?

      https://www.justice.gov/crt/conspiracy-against-rights

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jul 2020 @ 2:00pm

    Having learned a valuable lesson about the First Amendment and how voluntary agreements should actually be voluntary, the school walked away from the suit chastened and newly respectful of students' rights.

    I knew this was a joke as soon as I read it. There may be a universe in which school administrators don't fight tooth and nail for every modicum they can get over the students. But this isn't it.

    reply to this | link to this | view in chronology ]

  • icon
    Isocrates (profile), 20 Jul 2020 @ 2:14pm

    "revocation of rights must be voluntary"

    Hmmmm... I wonder how that "revocation of rights must be voluntary" decision is going to impact EULAs.

    Attending school is mandatory, so signing away a right to attend school is clearly not voluntary. But joining Cheer is voluntary, so the logic behind being able to sign away rights for something that's optional seems to be the same logic that allows the signing away of rights to use a computer program.

    Am I missing something here? Or is this going to get cited the next time someone has an issue with a EULA?

    reply to this | link to this | view in chronology ]

    • identicon
      Paul B, 20 Jul 2020 @ 3:11pm

      Re: "revocation of rights must be voluntary"

      Fairly sure it means you cant demand / sign away rights disporpornate to the task or event at hand, and government agencies (like schools) have less capability to ask for rights due to the both mandatory nature and the nature of the contract.

      This means a unidirectional contract needs to be limited to issues the school has the power to regulate already and it cant invent new powers just because its optional. Our courts have already made it clear that any first amendment protections that are lost attending school stop at the door.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jul 2020 @ 3:30pm

      Re: "revocation of rights must be voluntary"

      EULA and NDA and a variety of other non-negotiated contracts between unequal parties all suffer a serious deficiency, yes.

      reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 20 Jul 2020 @ 2:15pm

    Fuckin’ A for the fuckin’ 1A. 😁

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 20 Jul 2020 @ 3:10pm

    "crude, rude, and juvenile"

    Given B. L. was frustrated at administration and policy of varsity softball and cheer, this was an expression of civil discontent.

    That's to say Fuck Cheer is as appropriate as saying Fuck the US Senate or Fuck Trump. And no more juvenile.

    Oppi, emboliari, fur, furuncle -- Roman Graffito

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jul 2020 @ 3:56pm

      Re: "crude, rude, and juvenile"

      It is downright presidental language nowadays. Really it is a stupid status prejudice where any cause by someone lower is considered negative and anyone higher is considered positive. Since it was from a minor is considered "juvenille". Their alcoholism is recreation. A twenty year old having one beer is out of control delinquency.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jul 2020 @ 3:35pm

    It seems like it is a requirement somewhere that most school administrative staff and some teachers understand the loco in in loco parentis in one of its most extremely derived meanings.

    reply to this | link to this | view in chronology ]

  • identicon
    Eric, 20 Jul 2020 @ 5:56pm

    Applicable concepts to Terms of Service?

    Pay particular attention to the following lines from the article,and see what you get when you apply them to ckick-through agreements on software, terms for financial institutions and utility accounts, etc. (could they be so applied?):

    "[T]he revocation of rights must be voluntary, but B.L.'s wasn't really of the free will and volition variety.

    "[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.

    "Also:

    "Additionally, conditioning extracurricular participation on a waiver of a constitutional right is coercive."

    reply to this | link to this | view in chronology ]

    • icon
      Ben (profile), 21 Jul 2020 @ 4:33am

      Re: Applicable concepts to Terms of Service?

      Your use of software and your custom of financial institutions are optional. You get to choose which you use.

      Utilities much less so, though; I agree on that one.

      reply to this | link to this | view in chronology ]

      • identicon
        ryuugami, 21 Jul 2020 @ 8:31am

        Re: Re: Applicable concepts to Terms of Service?

        Your use of software and your custom of financial institutions are optional.

        So's joining a cheerleading club ¯\_(ツ)_/¯

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Jul 2020 @ 1:46pm

        Re: Re: Applicable concepts to Terms of Service?

        They are optional, but your rights are unalienable.

        Or should be. Especially fundamental ones like freedom of speech.

        reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 21 Jul 2020 @ 2:33pm

          Inalienable Rights

          This is one of the places my comprehension of anarchism and libertarianism have failed me:

          Inalienable rights are only inalienable so long as the state (community, militia, state peacekeepers, national army) can and does adequately defend them against all threats. Once a tiger pounces on you and eats you, your rights are forfeit.

          The whole business with having a constitution and a charter of laws is to define what rights are enforced by the state, who then works to secure a monopoly of power. Once the state stops enforcing that power, say because the state is captured by another institution then the right ceases to be a right.

          There are many rights that should be inalienable, but most of our rights are only selectively enforced, making them not rights at all.

          reply to this | link to this | view in chronology ]

  • icon
    techflaws (profile), 20 Jul 2020 @ 8:53pm

    "This school's cheerleading (squad) sucks" would be derogatory, "fuck cheer" isn't, right?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jul 2020 @ 11:41pm

    [N]either B.L. nor her mother had bargaining equality with the coaches or the school; the Cheerleading Rules were not subject to negotiation;

    Now if only the courts could use this reasoning when companies force binding arbitration on customers....

    reply to this | link to this | view in chronology ]

    • identicon
      Paul B, 21 Jul 2020 @ 6:38am

      Re:

      For a long time they did, it took several supreme court cases to say that binding arbitration was fine for partys of vastly unequal power.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jul 2020 @ 12:31am

    In summary :

    Appeals court refuses to give school district a Tinker's damn on foul speech.

    reply to this | link to this | view in chronology ]

  • icon
    Scary Devil Monastery (profile), 21 Jul 2020 @ 1:15am

    "Now if only the courts could use this reasoning when companies force binding arbitration on customers...."

    Schools don't have the lobbyists companies do, so the law will flex a bit more for the latter.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jul 2020 @ 12:19pm

    as i learned in high school in the early 70s, minors have no rights. what's changed?

    reply to this | link to this | view in chronology ]


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