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  1. IV. THE THIRD CIRCUIT HAS ENTERED THE CHAT: A NARRATIVE ANALYSIS ON THE COURT’S REFUSAL TO APPLY TINKER TO OFF-CAMPUS STUDENT CYBERSPEECH
    1. A. Uploading New Content: The Majority in B.L. Takes a Different Approach to Off-Campus Student Cyberspeech
    2. B. Snapping Back to the Majority: Judge Ambro’s Concurrence

IV. THE THIRD CIRCUIT HAS ENTERED THE CHAT: A NARRATIVE ANALYSIS ON THE COURT’S REFUSAL TO APPLY TINKER TO OFF-CAMPUS STUDENT CYBERSPEECH

In B.L. ex rel. Levy, the Third Circuit’s majority affirmed the district court’s decision that the First Amendment protected B.L.’s speech.103 In doing so, it rejected approaches taken by other circuits and found that the Tinker exception does not apply to any instances of off-campus student speech.104 Although Judge Ambro agreed with the overarching outcome of the case, he issued a separate concurring opinion to express his concerns with the majority’s broad rejection of the Tinker exception.105

A. Uploading New Content: The Majority in B.L. Takes a Different Approach to Off-Campus Student Cyberspeech

The School District appealed the district court’s decision to the Third Circuit.106 The court first had to determine whether B.L.’s snap was protected speech.107 If the speech was protected, then the court would have to address whether B.L. validly waived that protection by agreeing to the MAHS policies.108

The court began by reviewing the Supreme Court’s four main student speech cases: Tinker, Fraser, Kuhlmeier, and Morse. 109 Overall, it interpreted these four cases to demonstrate that students have limited First Amendment rights on school grounds, but their rights “are coextensive with [those] of an adult” when off of school grounds.110 In the Third Circuit’s view, this implied that school officials cannot constitutionally discipline students for their speech that occurs off of school grounds.111

https://www.pennlive.com/news/2020/06/pa-school-violated-cheerleaders-rightsby-punishing-her-for-profanity-laced-snapchat-post-us-court-says.html [https:// perma.cc/P34M-RRZL].

103 B.L., 964 F.3d at 194 (reasoning that to allow schools to regulate this kind of speech gives schools “the power to quash student expression deemed crude or offensive”).

104. See id. at 187–89 (rejecting Second, Fourth, Fifth, and Eighth Circuit’s approaches in favor of new approach). For an overview of these approaches, see supra notes 61–63, 72–90, and accompanying text.

105. See id. at 194, 197 (Ambro, J., concurring) (agreeing with grant of summary judgment but disagreeing with finding that Tinker exception never applies to off-campus student speech).

106. Id. at 176.

107 *Id. *

108. Id. at 176–77 (noting that inquiry does not end if B.L.’s speech is found to be protected).

109. See id. at 177–78. For a more in-depth discussion of these four Supreme Court cases, see supra Section II.A.

110. Id. at 178 (alteration in original) (internal quotation marks omitted) (quoting J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 932 (3d Cir. 2011)).

111. See id. at 177–78 (emphasizing Morse’s holding was related to speech “during school hours” and “at a school-sanctioned activity” (quoting Morse v. Fred

In light of this observation, the court then looked to where B.L.’s snap occurred.112 It noted that Supreme Court cases “focus[ ] not on physical boundaries [of the school] but on the extent to which schools control or sponsor the forum of the speech.”113 The court acknowledged that at a certain point, the school’s authority comes to an end and cannot “reach into a child’s home and control his/her actions” in the same way that it could control the child’s actions in school.114 While the court recognized that defining this boundary is a difficult task, it ultimately looked to J.S. and Layshock for guidance.115 Based on those cases, the Third Circuit concluded that B.L.’s snap occurred off campus because it was posted while off school grounds on a weekend.116

Next, the court assessed the School District’s defense that it could constitutionally suspend B.L. under Fraser. 117 The School District argued that it had the power “to enforce socially acceptable behavior” by regulating speech that is “vulgar, lewd, obscene, or plainly offensive.”118 The Third Circuit rejected this argument because Fraser applied specifically to vulgar, lewd, or offensive speech on campus. 119 Thus, Fraser did not apply because B.L.’s speech took place off campus.120

erick, 551 U.S. 393, 400–01, 407 (2007))). The court also mentioned that Kuhlmeier found a school’s “editorial authority applies ‘only when a student’s school-sponsored speech could reasonably be viewed as speech of the school itself.’” Id. at 178 (quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 213–14 (3d. Cir. 2001)).

112. See id. (explaining on campus and off campus are terms the court uses “with caution”).

113. Id. at 179. The Third Circuit noted it previously stated that “[i]t is ‘wellestablished’ that the boundary demarcating schools’ heightened authority to regulate student speech ‘is not constructed solely of the bricks and mortar surrounding the school yard.’” Id. at 178 (quoting Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 216 (3d Cir. 2011)).

114. Id. at 179 (quoting Layshock, 650 F.3d at 216). The School District argued that as a member of the cheerleading team, B.L. represented MAHS in a way that is similar to how “government employees represent their employer.” Id. at 183 (quoting Brief of Appellant at 30, B.L., 964 F.3d 170 (No. 19-1842)). The Third Circuit rejected both arguments. *See id. *

115. See id. at 180 (noting that “significant groundwork has been laid”). In both of those cases, the Third Circuit concluded that online student speech is not considered to be on-campus speech even when the communication is shared between students, refers to the school and school faculty, and impacts the school environment. See id. For a more detailed discussion of these cases, see supra notes 64–71 and accompanying text.

116. See id. at 180–81 (concluding that because B.L.’s snap made only a “few points of contact” with MAHS).

117. See id. at 181. For an overview of Fraser, see supra notes 39–44 and accompanying text.

118. Id. (quoting Brief of Appellant at 7–8, B.L., 964 F.3d 170 (No. 19-1842)).

119. Id. at 181. The court also noted that in Morse, the Court explained that if the speech in Fraser occurred “outside the school context, it would have been protected.” Id. (quoting Morse v. Frederick, 551 U.S. 393, 405 (2007)).

120. See id. at 183. The Third Circuit also reasoned that the School District’s argument contradicts precedent. See id. In Layshock, the court declined to apply

Next, the court addressed the School District’s claim that application of the Tinker exception justified B.L.’s punishment.121 The court considered three main approaches applied by other circuits: the Second and Eighth Circuit’s reasonable foreseeability test, the Fourth Circuit’s sufficient nexus test, and the Fifth Circuit’s approach.122 After providing a brief overview of these three approaches, the court outlined criticisms of each.123 First, the court emphasized that “bad facts make bad law.”124 It argued that while it makes sense to allow schools to regulate direct threats of violence or posts that target students, it creates a slippery slope that allows for the regulation of other less threatening kinds of online speech.125 Second, the court felt that these approaches placed too much speech under the authority of the school because of social media’s perva-

Fraser to off-campus speech, reasoning that doing so would otherwise allow schools to control expression that was not within their authority to begin with. See id. at 183 (citing Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 216 (3d Cir. 2011)).

121. See id. (addressing School District’s argument that “B.L.’s snap was likely to substantially disrupt the cheerleading program”). Whether the Tinker exception could apply to off-campus speech was an issue of first impression and one the Third Circuit had avoided answering in the past. Id. In J.S., the court “assume[d], without deciding” that Tinker exception applied to the off-campus speech because the school did not demonstrate that a substantial disruption was foreseeable. Id. at 183–84 (internal quotation marks omitted) (quoting J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 926 (3d. Cir. 2011)). Additionally, the court recognized that when it decided Layshock and J.S., social media just began gaining popularity, and the Tinker exception’s application to electronic speech was a developing issue.* See id.* at 185. But in 2020, the court realized that this issue could no longer be ignored due to “social media[’s] . . . expansion into every corner of modern life.” *Id. *

122 See id. at 185–86. For a more in-depth discussion of the reasonable foreseeability test, the sufficient nexus test, and the Fifth Circuit approach, see Section II.A.

123. See id. at 187–89 (rejecting to follow the various approaches taken by its sister circuits). Nevertheless, the Third Circuit stated that it sympathized with the other circuit courts, recognizing the difficulty in navigating students’ off-campus free speech rights in the context of social media. See id.

124. Id. at 187 (internal quotation marks omitted) (quoting United States v. Joseph, 730 F.3d 336, 337 (3d Cir. 2013)).

125 See id. (noting that “one unmistakable trend from the case law is that the most challenging fact patterns have produced rules untethered from the contexts in which they arose”). To illustrate this point, the court discussed how in Wisniewski, the Second Circuit used the reasonable foreseeability test to understandably allow a school to discipline a student who threatened violence. Id. However, the Second Circuit later applied the same test to uphold a school’s punishment of a student who falsely claimed in a blog post that a school band contest was canceled. Id.

siveness.126 Third, the court did not think that any of these approaches provided sufficient clarity or predictability.127

Overall, the Third Circuit believed that the three tests offer too broad of an approach and alter the meaning of Tinker. 128 It decided to instead “forge [its] own path.”129 Thus, the Third Circuit broadly concluded the *Tinker *exception does not extend to student cyberspeech that occurs outside of school-sponsored activities.130 Ultimately, it affirmed the district court’s finding that B.L.’s suspension was unconstitutional.131

B. Snapping Back to the Majority: Judge Ambro’s Concurrence

Judge Ambro agreed with the overall judgment of the case but dissented from the majority’s finding that the Tinker exception does not extend to off-campus cyberspeech, noting the facts currently at issue do not support such a broad-sweeping conclusion.132 First, Judge Ambro emphasized that the Third Circuit previously declined to limit the Tinker exception to on-campus speech.133 Judge Ambro also noted that no other

126. See id. at 187–88 (explaining that its sister circuits’ tests are overly broad). Specifically, the court found the reasonable foreseeability test too broad because many students follow one another, and it is inevitable that a student’s “message may automatically pop up on the face of classmates’ phones in the form of notifications from Instagram, Facebook, Twitter, Snapchat, or any number of other social platforms.” Id. at 187. Additionally, the court said that the sufficient nexus test was overly broad because it blurs the line between on and off campus. See id. at 188. The test allows for schools to regulate speech anytime it disrupts the schools’ educational mission, which the court fears is a power that can be abused. *See id. *

127. Id. (explaining no approach gives students or teachers “clear guidance” (internal quotation marks omitted) (quoting Longoria Next Friend of M.L. v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258, 265 (5th Cir. 2019)). The court reasoned that the Fifth Circuit approach provides no definitive test. See id. As for the reasonable foreseeability test, the court stated it is difficult to predict how or when off-campus speech will reach on campus. See id. Regarding the sufficient nexus test, the court stated that it is unclear to students what types of speech would sufficiently relate to a school’s “pedagogical interests.” Id. (quoting Kowalski v. Berkeley Cty. Sch., 652 F. 3d 565, 573 (4th Cir. 2011)).

128. See id. at 188–89 (explaining that approaches “sweep in too much speech and distort Tinker’s narrow exception into a vast font of regulatory authority”).

129. Id. at 189.

130. See id. (noting that this approach abides by Tinker and provides school officials and students with clarity). The court did acknowledge that the approach “leaves some vulgar, crude, or offensive speech beyond the power of schools to regulate.” Id. at 191.

131. Id. at 194. Although the Third Circuit concluded the Tinker exception did not apply, if it did, B.L.’s speech likely would have been protected, as it was not reasonably foreseeable the speech would create a substantial disruption in the school. See id. at 195 (Ambro, J., concurring).

132. Id. at 194.

133. Id. (explaining that in Layshock, the Third Circuit declined to “define the precise parameters of when the arm of authority can reach beyond the schoolhouse gate because . . . [the student’s] conduct did not disrupt the school”) (alterations in original) (quoting Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 220 (3d Cir. 2011))). Additionally, Judge Ambro noted that, in J.S., the Third Circuit assumed Tinker applied. Id.

circuit court has rendered such a broad conclusion.134 While other courts have declined to apply Tinker to off-campus speech based on certain facts, Judge Ambro stated those same courts later chose to apply Tinker outside of the geographical school boundary.135

Additionally, Judge Ambro argued that the majority based its s holding on simple facts.136 While Judge Ambro considered the court’s decision logical based on these facts, he worried about how the decision could lead to confusion when applied to more complicated facts.137 For example, Judge Ambro noted that it is unclear whether “a school [can] discipline a student who posts off-campus [s]naps reenacting and mocking the victims of police violence where those [s]naps are not related to school . . . yet provoke significant disruptions within the school.”138

Finally, Judge Ambro concluded by admonishing the majority’s holding that courts must exercise judicial restraint when deciding cases.139 According to Judge Ambro, the Third Circuit’s decision was broader than necessary and “anticipate[d] a question of constitutional law in advance.”140 Judge Ambro emphasized that the majority could have applied the Tinker exception to B.L.’s situation and ruled in B.L.’s favor.141 Thus, it was unnecessary for the majority to go further and analyze whether the Tinker exception applies to off-campus student cyberspeech.142

134. Id. at 196 (“Instead, ours is the first Circuit Court to hold that Tinker categorically does not apply to off-campus speech.”).

135. Id. at 196–97 (first citing Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379, 396 (5th Cir. 2015); then citing Doninger v. Niehoff, 527 F.3d 41, 50–53 (2d Cir. 2008); and then citing Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34, 39–40 (2d Cir. 2007)). Judge Ambro noted that “Circuit Courts facing harder and closer calls have stayed their hand and declined to rule categorically that [the Tinker exception] does not apply to off-campus speech.” Id. at 197.

136. Id. at 195, 197 (describing the case as “straightforward” and one that “is not close to the line of student speech that schools may regulate”). B.L.’s speech was nonviolent and did not mention any specific individuals. See id. *at 195. Although it resulted in a few complaints, the cheerleading coaches testified that “they did not expect the Snap would substantially disrupt any activities in the future.” Id. *

137. Id. at 197.

138. Id. (“We promulgate a new constitutional rule based on facts that do not require us to entertain hard questions such as these.”).

139. Id. (“Do not decide today what can be decided tomorrow, for tomorrow it may not need to be decided.”).

140. Id. at 194 (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008)).

141. Id. at 197.

142. * Id.* (“We promulgate a new constitutional rule based on facts that do not require us to entertain had questions such as these.” (footnote omitted)).

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