Fuck This Cheer In Particular Says The Supreme Court In Decision Upholding Students' Free Speech Rights

from the blowing-tax-dollars-on-juvenile-f-bombs-like-a-boss dept

A high school student's quest to say "fuck cheer" in a semi-crowded convenience store has reached its end. The origin of this journey -- which began all the way back in 2017 -- was nothing more than a high school student doing high school stuff.

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.

For that, B.L. was booted off the cheerleading team she had very briefly disparaged and suspended from cheer activities for a year. She sued. And she won. A Pennsylvania federal court said the student's off-campus speech was protected, seeing as it was not provably disruptive and -- the court reminded the school -- it had occurred off-campus. The school's limitations of student's rights didn't reach that far. And even if the student had agreed to a code of conduct for extracurricular activities, the court said the agreement -- one that couldn't be altered and forced students to give up rights if they wanted to participate in extracurricular activities -- was coercive, rather than equitable.

The school appealed. And lost again. The Third Circuit Appeals Court upheld the lower court's ruling, pointing out that accepting the school's arguments would encourage administrators to become censors of students' speech, no matter where that speech occurred.

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. 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.

The school appealed again. And it has lost. Again. This time the loss really counts because this time it happened in the highest court in the land.

The Supreme Court's decision [PDF] upholds students' free speech rights, but applies this ruling very narrowly to the facts at hand. But even though the finding is narrow, it encourages schools to err on the side of caution (and students' rights), rather than simply assume anything that doesn't fit the facts of this case is acceptable.

The Supreme Court doesn't go as far as the Third Circuit Appeals Court, which pretty much said all off-campus speech is protected. Instead, it sets out guidelines for when it may be permissible for schools to regulate off-campus speech, such as bullying, harassment, threats, and use of school websites.

The limits placed on schools when it comes to off-campus speech are the following:

First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco parentis treats school administrators as standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.

Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.

Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, “I disapprove of what you say, but I will defend to the death your right to say it.”

Schools still have an obligation to respect students' rights. And only rarely should they expect to usurp a parent when dealing with off-campus speech. Most importantly, schools should teach students to respect free speech rights by… respecting students' free speech rights. Seems simple enough.

These guidelines are directed at both schools and the nation's courts. Schools need to ensure they minimize their policing of off-campus speech. Courts need to consider these guidelines when handling cases involving punishment of off-campus speech. There's no bright line created here. There's simply a lot more clarification of the issue at hand.

The decision makes short work of the excuses the school offered for its punishment of B.L.'s off-campus speech. Although the school is allowed to punish students for "vulgar speech," its jurisdiction is very limited.

The strength of this anti-vulgarity interest is weakened considerably by the fact that B. L. spoke outside the school on her own time.

The court says the school also stepped on the student's parent's toes by punishing B.L.

B. L. spoke under circumstances where the school did not stand in loco parentis. And there is no reason to believe B. L.’s parents had delegated to school officials their own control of B. L.’s behavior at the Cocoa Hut. Moreover, the vulgarity in B. L.’s posts encompassed a message, an expression of B. L.’s irritation with, and criticism of, the school and cheerleading communities. Further, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom.

The court also says the "disrupted school" excuse is no better. There was no evidence presented by the school of any disruption other than "5-10 minutes of an algebra class" for a couple of days after the Snapchat was posted.

That's it. B.L. -- more than four years after the fact -- wins. So do students all over the United States who now have the benefit of these speech regulation guidelines from the nation's top court. And it's all due to the tireless efforts of the little school that couldn't, Mahanoy Area High School.

(Oh, and if you're interested, there's a dissent by Clarence Thomas that should be read in a Principal Skinner "No, it's the children who are wrong" voice and which basically says that in an era of social media platforms that can be accessed anywhere, students' speech should have fewer protections, rather than more.)

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Filed Under: 1st amendment, cheerleader, free speech, fuck this, off-campus speech, schools, supreme court


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  • icon
    Stephen T. Stone (profile), 24 Jun 2021 @ 12:03pm

    I have only two words for this ruling:

    Fuck yeah.

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

  • icon
    VexVexVex (profile), 24 Jun 2021 @ 12:11pm

    Just think of all that taxpayer money the school wasted losing this fight all the way to the supreme court.

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

  • identicon
    Anonymous Coward, 24 Jun 2021 @ 12:15pm

    (Oh, and if you're interested, there's a dissent by Clarence Thomas that should be read in a Principal Skinner "No, it's the children who are wrong" voice and which basically says that in an era of social media platforms that can be accessed anywhere, students' speech should have fewer protections, rather than more.)

    Hmmm this smells kind of like the "right to be heard" fallacy. Except he's arguing that basically minors have a ban on being heard (not absolute)? Sounds kind of unconstitutional. And insane.

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

  • icon
    OldMugwump (profile), 24 Jun 2021 @ 1:00pm

    Liberalism vs conservatism?

    We're in a strange period in which a largely conservative Supreme Court (nominally, anyway) is issuing a series of decisions taking what were recently considered liberal positions.

    And being applauded by large sections of both Right and Left for them (including me).

    There's a subset of the Left that cares about limits on police powers of the state, and a subset of the Right that cares about human rights and limiting the scope of government power.

    And somehow these subsets are in agreement with each other and with the current Supreme Court. It's a strange alignment between nominally-opposed sections of the American political scene.

    Given the tensions inside both major parties (liberals vs. woke in the D party, Trumpists vs. never-Trumpers in the R party) I wonder if we're approaching a major restructuring of US politics.

    It would be a good thing if both major parties broke up and reformed into a pair of new parties with less internal tension. It seems we're closer to that happening now than any time since the Civil War (when the R party was born).

    Too bad Justice Thomas isn't on board.

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

    • identicon
      Anonymous Coward, 24 Jun 2021 @ 3:56pm

      Re: Liberalism vs conservatism?

      We're in a strange period in which a largely conservative Supreme Court (nominally, anyway) is issuing a series of decisions taking what were recently considered liberal positions.

      That is just a normal period. The supreme court has rarely been particularly partisan. While there are somewhat periodice surges in public perception of political conflict between sitting judges, in practice such conflict has occued almost exclusively among the lower courts, not in the supreme court.

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

    • icon
      Scary Devil Monastery (profile), 25 Jun 2021 @ 1:17am

      Re: Liberalism vs conservatism?

      "Given the tensions inside both major parties (liberals vs. woke in the D party, Trumpists vs. never-Trumpers in the R party) I wonder if we're approaching a major restructuring of US politics."

      Point of nitpicking...it should be liberals vs zealots in the dems - most liberals at least being woke to the idea that society is permeated with legacy injustice built right into every system used.

      And unfortunately the "never-trumpers" are, by now, such a minority in the GOP their choices are to leave politics or join their fellow sane people in the democrat centre-right.

      Here's my guess for a plausible restructuring of the US political landscape. The GOP loses the last bits of tape holding it together and devolves into a social club consisting mainly of Proud Boys, neo-confederates and the various nazi parties.
      Then the "big, all-encompassing tent" of the democrats fractures into a progressive and a moderate party to fill the gap. Leaving three main contenders for the future US - the liberals, the moderates, and the 25-30% who can't let go of the idea that ethnicity and ancestry equals worth.

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

      • icon
        OldMugwump (profile), 25 Jun 2021 @ 10:48am

        Re: Re: Liberalism vs conservatism?

        I'll accept your nitpick - that's fair.

        I think there are more never-Trumpers in the GOP than you think - at least 35 or 40%. Most of them are cowed into silence by the Trumpists but they're there. Plus a lot of independents have similar views to the GOP never-Trumpers.

        I think the D party is equally internally fragmented and dysfunctional, tho, just in different ways.

        A healthy democracy needs at least two reasonably sane parties - they have to keep each other reasonably honest.

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

        • icon
          Tanner Andrews (profile), 26 Jun 2021 @ 11:35am

          Re: Re: Re: Liberalism vs conservatism?

          A healthy democracy needs at least two reasonably sane parties

          The problem is when you wind up with just two parties. The chances of them remaining reasonably sane are limited because the leadership starts defining their respective parties so as to distinguish them from the other.

          For instance, one party dislikes pollution as an economic externality, so the party dislikes govt regulation of polution. One party now dislikes overt racism, the other party embraces nazis and proud boys and says there are good people on both sides. One party endorses a living wage, so the other party wants tax credits for exporting jobs to the slave labor plants in Red China.

          I could go on. The problem is that, with but two parties, you may wind up with two idiots feuding instead of any realistic choice.

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

          • icon
            Scary Devil Monastery (profile), 30 Jun 2021 @ 8:06am

            Re: Re: Re: Re: Liberalism vs conservatism?

            " The problem is that, with but two parties, you may wind up with two idiots feuding instead of any realistic choice."

            You may want to go to youtube and find "We're doing elections wrong" with Hasan Minhaj. He boils it down to the core issue - first-past-the-post elections. That mechanism produces a two-party system by default. Leading, invariably, to one party consisting of every issue and another which expressly defends a small number of extremist issues.

            You always end up with one party of nutcases and another party which ends up a social club for the "Not stark raving insane or malicious" which ends up being an old-style polish parliament.

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

        • icon
          Scary Devil Monastery (profile), 28 Jun 2021 @ 1:25am

          Re: Re: Re: Liberalism vs conservatism?

          "I think there are more never-Trumpers in the GOP than you think - at least 35 or 40%."

          I keep seeing pundits and papers referencing some 70-80% approval of the worst sort of trumpist gibberish - like the "stolen election" and "liberal conspiracy" within the GOP. Sure, there could be a silent faction toughing it out in the wings but...

          "Most of them are cowed into silence by the Trumpists but they're there."

          This is an old saying but still as true; There's a word for those who do not share the ideology, nor the hatred, nor the malice of nazis but still insist on staying with nazis. That word is nazi.

          It simply doesn't matter if one in three republicans are, in fact, never-trumpers when their presence makes no difference in the free-fall of the GOP. Never Trump In Name Only bears no weight.

          "I think the D party is equally internally fragmented and dysfunctional, tho, just in different ways. "

          Oh, they are. Their "Big tent" has gone from being focused around a decent assortment of core issues to trying to represent everyone who isn't stark raving mad and/or malicious. That's a nice start for a social group but not exactly functional for a party which has to hash out priorities.

          "A healthy democracy needs at least two reasonably sane parties - they have to keep each other reasonably honest."

          Looking at history I'd say that no nation, since the days of Rome, has managed even a vestige of functional democracy with only two parties. You need, I would say, at least five. The outright left and right, the authoritarian contra the liberal, and a centered "safe" choice. This provides, in the public discourse, enough options to not always have to choose between two equally bad options and allows for punishing your own party without by necessity having to cast your ballot at some extremist clown.

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

          • icon
            OldMugwump (profile), 29 Jun 2021 @ 6:44am

            Re: Re: Re: Re: Liberalism vs conservatism?

            I agree more parties is better. With first-past-the-post that's hard, tho. I'm just saying that ONE is really scary.

            (Godwin wins again...)

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

            • icon
              Scary Devil Monastery (profile), 30 Jun 2021 @ 8:23am

              Re: Re: Re: Re: Re: Liberalism vs conservatism?

              "(Godwin wins again...)"

              Mike Godwin himself had to come out in the wake of Charlottesville and retract his law; The alt-right can no longer hide under Godwin's law because it no longer applies to them.

              Personally I think what should be truly scary is that the man who formulated the law regarding the overuse of the term "nazi" has had to come out and tell people that his law has largely stopped working. Because the amount of nazis in the public discourse is now that high.

              The republican CPAC best known for the golden Trump statue sent a dogwhistle (or bullhorn) in their design of the speaker's podium - the winged odal rune commonly used by US white supremacists in lieu of the swastika. From which the speakers belted out a very familiar old message of scapegoat rants, fearmongering, and calls to defend the blood and soil.

              The base on which much of the GOP now relies on for votes is the "unite the right" mob of Charlottesville. The Very Fine People. The ones republicans today find hard to condemn or even criticize out of fear of losing their seat.

              Don't kid yourself. What you have today is already just one party still engaged in politics. The other side of the aisle has abandoned any semblance of participation and is now all-in on exculpating an attempted coup, stripping the vote away from as many people as possible, and playing a game of obstructionism only.

              For as obnoxious as Trump is, he's at least inept. Cadet Bonespur is no Bohemian Corporal. All we can do is hope that the GOP never manages to find an actually competent strongman with the backbone and aptitudes of a Hitler.

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

  • identicon
    Anonymous Coward, 24 Jun 2021 @ 1:02pm

    At least "unpopular ideas" need no protection at private schools or on privately-owned social-media sites.

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

  • icon
    ECA (profile), 24 Jun 2021 @ 1:11pm

    This is strrange.

    "Clarence Thomas that should be read in a Principal Skinner "No, it's the children who are wrong""

    Dear Clarence.
    So you didnt stand up and declare yourself in school?
    You sat there and suffered threw all the BS being taught? WOW. NERD to the end?
    The odds say you have never contested ANYTHING in your life.
    And I will bet that 90% of the kids never saw her post or if they did, DIDNT give a Finklestean(what ever that is).
    IF the kids she may have been insulting had a problem, DO you think the KIDS at school would have dealt with it? The KIDS themselves, like in Cheer, would have suggested they NOT deal with her and Shunned Her. THATS how you learn to be social or become an outcast in school.

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

  • icon
    Darkness Of Course (profile), 24 Jun 2021 @ 2:09pm

    Butt our precious feelings

    Dude, move on. Let her go, she's just not into letting you violate her 1st Amend rights.

    I am so glad the voters in their district are willfully spending money on anti-fuck speech than supporting the 1st Amend in all its cuts both ways tendencies.

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

  • icon
    That Anonymous Coward (profile), 24 Jun 2021 @ 2:50pm

    "Thomas repeated his view that “schools historically could discipline students in circumstances like those presented here.”

    Historically we could lynch you and face no charges genius.

    He also went off before about gay marriage how it offended people blah blah... one notices he manages to miss the offense people felt over Loving v Virginia & we should repeal that and let the state where he and his white wife live prosecute them.

    Also something about the historical rules about him not talking in public.

    Whats the phrase again... oh yes...
    Christ what an asshole.

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

    • icon
      Samuel Abram (profile), 24 Jun 2021 @ 2:57pm

      Re:

      It's as if as time marches on, Thomas goes further to the right and/or gets less and less self-aware. Ironically, methinks he's the only Trumpist on the court, even though three justices were appointed by Trump and he ain't one of 'em.

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

      • icon
        Scary Devil Monastery (profile), 25 Jun 2021 @ 2:05am

        Re: Re:

        "Ironically, methinks he's the only Trumpist on the court, even though three justices were appointed by Trump and he ain't one of 'em."

        It's somehow telling that "Trump appointees" turn out to be windsocks willing to turn their back on their benefactor the very second they don't need him anymore.
        It may turn out that Trump's SCOTUS appointees are simply judges who may have an issue with personal integrity but other than that aren't that much worse off than the regular cast. They did at least get picked off a list of candidates who all knew constitutional law at least.

        Thomas is a clear example of a hypocritical arch-conservative who keeps exculpating himself from the standards he sets on everyone else. In the era from which he draws his inspirations of decency and morals he would still have a dedicated seat at the back of the bus and would have been quietly hung for marrying a white woman. Yet he keeps using the moral codes from way back then to justify all his legal output.

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

  • identicon
    Bobvious, 24 Jun 2021 @ 5:11pm

    Simpsons did it

    1 for Skinner https://www.youtube.com/watch?v=HMqZ2PPOLik

    and 1 for Bart https://www.youtube.com/watch?v=5MLa7WWwskg

    Also, why didn't they talk to the student about her concerns instead of just epic failing?

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

    • icon
      ECA (profile), 25 Jun 2021 @ 12:05pm

      Re: Simpsons did it

      because schools are DIGITAL NOW, not analog.
      DIGITAL= yes or no.
      Analog is variable, where the school can do many things BESIDES, yes/no.

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

  • identicon
    Anonymous Coward, 25 Jun 2021 @ 3:43am

    The decision is right of course but her rant would have been a tad more believeable hadn't she been doing tryouts to make varsity squad.

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

    • icon
      R.H. (profile), 25 Jun 2021 @ 12:19pm

      Re:

      I don't know how much of her situation you've read about but, she'd been told in her freshman year that, if she spent a year on the freshman squad she'd be able to get on the varsity squad. Then, in her sophomore year, she was told that she'd have to spend a year in the junior varsity squad even though there were incoming freshmen being allowed on the varsity squad. She was annoyed at this and made her statements on Snapchat. Please note that she was only seeking damages of $1, this wasn't an attempt to get paid. She (and her parents) decided to fight this because they believed that it was a misdeed on the part of the school.

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

      • icon
        ECA (profile), 25 Jun 2021 @ 9:29pm

        Re: Re:

        IF she was good, then the past should not matter.
        Part of the problem is thinking she was better then those below her.

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

      • icon
        BernardoVerda (profile), 26 Jun 2021 @ 3:18pm

        Re: Re:

        It sounds like this whole case was much less about some student's alleged "bad language" and "improper behaviour", than about those in authority being called out on their own behaviour -- and wanting to simply squelch such criticism, hard.

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

    • icon
      Stephen T. Stone (profile), 25 Jun 2021 @ 1:04pm

      The decision is right of course but

      Every time you open a “but”, you expose an asshole.

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

  • identicon
    me, 25 Jun 2021 @ 5:40am

    "School is teh cradle of Democracy" WHAT A LOAD...

    School is about indoctrination, cases like this prove. This happened off campus, and is none of anyone's business but the girl's. Yes she f-bombed when she expressed her thoughts, many teens do. If her parents had stepped in to say no to the f-bomb, thats one thing, the school should stick to education.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Portent, 25 Jun 2021 @ 8:47am

    The schools logic. Looking at the case it seems the schools logic was what I have come to call Mike logic recently. The school believed that since Tinker v. Des Moines only dealt with speech in school there was not controlling legal authority on speech outside of school. Of course any thinking person can conclude that if you lack the authority in school where your powers are at their greatest you most certainly lack the authority outside of school where you powers are at their least. But not according to the school. According to the school Tinker v. Des Moines was only about in school so they could do what ever they wanted outside of school.

    This kind of 'the cases have to match exactly' is what I have come to call Mike logic as that is how Mike engages in legal arguments with precedence he doesn't like.

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

    • icon
      Toom1275 (profile), 26 Jun 2021 @ 12:07pm

      Re:

      that is how Mike engages in legal arguments with precedence he doesn't like.

      [Portent, who has never knce made a factually-or legally-supported argument, Projects facts not in evidence]

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

      • icon
        Scary Devil Monastery (profile), 28 Jun 2021 @ 1:47am

        Re: Re:

        Say, doesn't the way "Portent" tries to reverse Mike's arguments into the complete opposite and then use that false analogy to jump down his throat remind you of someone else we know whose only argumental expertise is the false analogy, flawed assumption and the straw man?

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

        • icon
          Toom1275 (profile), 28 Jun 2021 @ 11:14am

          Re: Re: Re:

          Do you have any idea how little that narrows it down?

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

          • icon
            Scary Devil Monastery (profile), 30 Jun 2021 @ 8:27am

            Re: Re: Re: Re:

            "Do you have any idea how little that narrows it down?"

            Yeah, to one particular shitwit who's spent some ten years trolling Techdirt under dozens of different nicknames - and Torrentfreak until they switched to 3rd-party account verification at which point he left once his one-man-army schtick was revealed.

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

      • icon
        Chozen (profile), 28 Jun 2021 @ 7:19am

        Re: Re: "Not A Court of Law"

        This isn't a court of law. We don't submit all or evidence to the court before writing a post.

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

    • identicon
      Anonymous Coward, 27 Jun 2021 @ 4:07pm

      Re:

      How long it take you to come up with “Mike Logic?”

      You up all night or did you get to bed by 2?

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

    • icon
      Scary Devil Monastery (profile), 28 Jun 2021 @ 1:43am

      Re:

      "Looking at the case it seems the schools logic was what I have come to call Mike logic recently."

      You ought to know by now that coming up with a consistent nick to use still doesn't free your usual commentary from the tells, Baghdad Bob.

      Mike is usually big on context. You, as usual, haul out the broken logic you keep using in your bad faith arguments and claim that's what Mike keeps using.

      How else can we interpret the fact that Techdirt OP's have consistently come down hard on the referenced school but you jump in and imply the complete opposite?

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


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