On June 30, 2020, the United States Court of Appeals for the Third Circuit issued its opinion in B.L. v. Mahanoy Area School District, a precedential decision in which the Third Circuit affirmed a district court’s decision holding that a school district had violated a student’s First Amendment rights by suspending her from the school’s junior varsity cheerleading squad as a result of a Snapchat post which the school deemed in violation of school and team rules. The student’s social media post was made off school grounds, after school hours and without school resources.

In reaching its decision, the Third Circuit found that the student’s speech was entitled to First Amendment protection despite a very “narrow exception” which limits students’ free speech rights when the speech “interferes with the rights of other students to be secure and to be let alone.” Opinion at 9. The court was persuaded to rule in the student’s favor because her speech took place away from campus (at a local store), over the weekend (on a Saturday), without school resources (she used her cellphone), and was shared “on a social media platform unaffiliated with the school” (Snapchat). Opinion at 15.

The Third Circuit also held that the school’s decision to discipline the student for an off-campus social media post violated her First Amendment rights. In so holding, the Third Circuit ruled that a Supreme Court case, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), applied only to on-campus speech, and not off-campus speech. Thus, the Third Circuit deviated from decisions of other circuits which have held that Tinker did apply to both on-campus and off-campus speech, setting up a potential appeal to the U.S. Supreme Court to resolve the split between the circuits.

In the course of the 51 page decision, the B.L. court recognized that “Students use social media and other forms of online communication with remarkable frequency and social media,” (Opinion at 13) and that “social media has continued its expansion into every corner of modern life” (Opinion at 26). It will continue to be interesting to watch as courts attempt to resolve important constitutional issues in the digital age where technology changes so very quickly.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.