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  1. III. SNAPCHAT STORY TO SUSPENSION: THE FACTS OF B.L

III. SNAPCHAT STORY TO SUSPENSION: THE FACTS OF B.L

As a freshman at Mahanoy Area High School (MAHS), B.L. tried out for the school’s cheerleading team and made the junior varsity roster.91 The following year, as a sophomore, B.L. was again placed on the junior varsity team.92 Frustrated about not making the varsity team for the second year in a row, B.L. posted a picture (snap) on Snapchat of B.L. and a

Circuit pointed out that Tinker was decided in a time when cellphones and social media did not exist. See id. at 392. Although the court chose to apply the Tinker exception to these facts, it noted the need for clear guidance regarding the extent to which schools may regulate off-campus student speech, given the significant technological changes since the Tucker exception was established. See id. at 403.

85. See D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 763, 766 (8th Cir. 2011) (applying true threat approach and Tinker exception); see also Doe v. Pulaski Cty. Special Sch. Dist., 306 F.3d 616, 621–22 (8th Cir. 2002) (applying true threat approach).

86. 647 F.3d 754 (2011).

87. Id. at 766. The Eighth Circuit followed Second Circuit’s reasonable foreseeability approach from Wisniewski v. Weedsport Central School District. Id. at 765–66.

88. Id. at 758. The student that D.J.M. messaged saved the conversations and notified the school. See id. at 759.

89. Id. at 762 (finding D.J.M. had intent to communicate their threats). The Eighth Circuit defined a true threat as a “statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another.” Id. at 762 (internal quotation marks omitted) (quoting Doe v. Pulaski Cty. Special Sch. Dist., 306 F.3d 616, 624 (8th Cir. 2002)). Additionally, the speaker must intend to communicate the statement to the “object of the purported threat or to a third party.” Id. (quoting Doe, 306 F.3d at 624). True threats are not protected by the First Amendment. See id. at 764.

90. See id. at 766 (holding First Amendment claim properly dismissed due to the reasonably foreseeable threat).

91. B.L. ex rel. Levy v. Mahanoy Area Sch. Dist., 964 F.3d 170, 175 (3d Cir. 2020).

92. Id. (noting B.L.’s frustrations to advance in cheerleading while incoming freshman made varsity).

friend holding up their middle fingers with the caption “[f]uck school fuck softball fuck cheer fuck everything.”93 Roughly 250 people could view the snap, many of whom attended MAHS or were on the cheerleading team.94 Several students, both cheerleaders and non-cheerleaders, screenshotted the snap and brought it to the attention of B.L.’s cheerleading coaches.95

Prior to joining the team, B.L. signed both team and school rules that required her to avoid “foul language,” “inappropriate gestures,” and sharing “negative information regarding cheerleading, cheerleaders, and coaches . . . on the internet.”96 The cheerleading coaches determined B.L.’s snap violated these rules and subsequently removed B.L. from the team as punishment.97 B.L. unsuccessfully appealed the decision to school authorities.98

In response, B.L. sued the Mahanoy Area School District (School District), claiming the punishment violated their First Amendment right to freedom of speech.99 The district court agreed with B.L. and granted summary judgment in B.L.’s favor.100 The court determined that the school could not punish B.L. because the snap took place off campus and presented no actual or foreseeable disruption to the school environment, thus, failing to meet the Tinker exception.101 The district court also noted that B.L. did not waive the right to free speech by signing the school and team policies.102

93. Id. (internal quotation marks omitted). In addition to cheerleading, other school activities made B.L. unhappy, such as exam anxiety and B.L.’s role on the school softball team. Id. B.L. used Snapchat to vent these frustrations. Id.

94. Id. (explaining these 250 people were B.L.’s “friends” on Snapchat).

95. Id. at 175–76 (noting disgruntled students approached coaches to express concerns about B.L.’s snap being inappropriate).

96. Id. at 176 (alteration in original) (outlining school and team policies). The school also had a rule that required student athletes to “conduct[ ] themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.” Id. (alteration in original) (internal quotation marks omitted).

97. *Id. *

98. Id. (stating B.L. appealed suspension to the athletic director, school principal, district superintendent, and school board). Although they upheld the coaches’ suspension, they said B.L. would be eligible to try out for the team the following year. *Id. *

99. *Id. *

100. Id.; B.L. v. Mahanoy Area Sch. Dist., 376 F. Supp. 3d 429, 445 (M.D. Pa. 2019) (finding First Amendment violation because B.L.’s speech neither “bore the imprimatur of the school or squad” nor caused a substantial disruption), aff’d, 964 F.3d 17 (3d Cir. 2020).

101. B.L., 376 F. Supp. 3d at 443–44.

102 Id. at 437–38 (noting it unnecessary to consider B.L.’s overbreadth, viewpoint discrimination, or vagueness claims because all relief sought by B.L. could be granted solely on First Amendment claim). The court awarded B.L. nominal damages and ordered the School District to expunge the suspension from B.L.’s disciplinary record. See Matt Miller, Pa. School Violated Cheerleader’s Rights by Punishing Her For Profanity-Laced Snapchat Post, U.S. Court Says, PENN LIVE (June 30, 2020),

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