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posted by Fnord666 on Sunday August 02 2020, @02:32AM   Printer-friendly
from the important-decisions dept.

In Historic Opinion, Third Circuit Protects Public School Students' Off-Campus Social Media Speech:

The U.S. Court of Appeals for the Third Circuit issued an historic opinion in B.L. v. Mahanoy Area School District, upholding the free speech rights of public school students. The court adopted the position EFF urged in our amicus brief that the First Amendment prohibits disciplining public school students for off-campus social media speech.

B.L. was a high school student who had failed to make the varsity cheerleading squad and was placed on junior varsity instead. Out of frustration, she posted—over the weekend and off school grounds—a Snapchat selfie with text that said, among other things, "fuck cheer." One of her Snapchat connections took a screen shot of the "snap" and shared it with the cheerleading coaches, who suspended B.L. from the J.V. squad for one year. She and her parents sought administrative relief to no avail, and eventually sued the school district with the help of the ACLU of Pennsylvania.

In its opinion protecting B.L.'s social media speech under the First Amendment, the Third Circuit issued three key holdings.

  • Social Media Post Was "Off-Campus" Speech
  • Vulgar Off-Campus Social Media Speech is Not Punishable
  • Off-Campus Social Media Speech That "Substantially Disrupts" the On-Campus Environment is Not Punishable

[...] The Third Circuit's opinion is historic because it is the first federal appellate court to affirm that the substantial disruption exception from Tinker does not apply to off-campus speech.

Other circuits have upheld regulating off-campus speech citing Tinker in various contexts and under different specific rules, such as when it is "reasonably foreseeable" that off-campus speech will reach the school environment, or when off-campus speech has a sufficient "nexus" to the school's "pedagogical interests."

The Third Circuit rejected all these approaches. The court argued that its "sister circuits have adopted tests that sweep far too much speech into the realm of schools' authority." The court was critical of these approaches because they "subvert[] the longstanding principle that heightened authority over student speech is the exception rather than the rule."

Because there is a circuit split on this important First Amendment student speech issue, it is possible that the school district will seek certiorari and that the Supreme Court will grant review. Until then, we can celebrate this historic win for public school students' free speech rights.


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  • (Score: 5, Insightful) by Anonymous Coward on Sunday August 02 2020, @02:54AM (17 children)

    by Anonymous Coward on Sunday August 02 2020, @02:54AM (#1030134)

    I agree, schools and universities have no place regulating off-campus speech by students. This should also extend to faculty. More generally, schools have no business regulating what students and faculty do off-campus. There are plenty of horror stories like this one [dailymail.co.uk] where a teacher is photographed with alcohol off-campus and is then penalized by the school. This is very wrong. It's great that students have free speech but it's inexcusable that faculty don't also have free speech.

    • (Score: 2, Interesting) by fustakrakich on Sunday August 02 2020, @03:41AM (14 children)

      by fustakrakich (6150) on Sunday August 02 2020, @03:41AM (#1030143) Journal

      I'm afraid we have to apply this to all employers. Or should they be allowed to regulate what employees say on facebook when they are off the clock?

      --
      La politica e i criminali sono la stessa cosa..
      • (Score: 0) by Anonymous Coward on Sunday August 02 2020, @03:50AM (1 child)

        by Anonymous Coward on Sunday August 02 2020, @03:50AM (#1030149)

        Does this go as far as I read it? If an employer uses Social Media or any other outside-of-work thing to fire a person or discriminate in any way to affect their career - its illegal? What about the recent cases where people off the clock did something and got fired? Do they all line up for huge compensation lawsuits now? In the current climate say someone is just really tired and frustrated and posts "I am just tired of _insert_PC_agenda_of_the_week_", and their boss fires them because of some outcry, now they have a 3rd Circuit decision that says "No, you can't do that. Outside of work is outside of work."

        • (Score: 1) by hemocyanin on Sunday August 02 2020, @08:21AM

          by hemocyanin (186) on Sunday August 02 2020, @08:21AM (#1030200) Journal

          One would hope though technically, this case does not address that issue.

      • (Score: 0) by Anonymous Coward on Sunday August 02 2020, @03:52AM (4 children)

        by Anonymous Coward on Sunday August 02 2020, @03:52AM (#1030151)

        That is a little trickier unless employment contracts can add stipulations. Some employees become the public faces of companies and if their private life becomes a scandal it can really hurt the business.

        • (Score: 3, Interesting) by Runaway1956 on Sunday August 02 2020, @04:45AM (3 children)

          by Runaway1956 (2926) Subscriber Badge on Sunday August 02 2020, @04:45AM (#1030159) Journal

          Salaried employees might be subject to some stipulations. That takes care of your PR people, probably your top sales people, and top company officers. Hourly workers should never be bound by company rules about social media - or much of anything else.

          • (Score: 0) by Anonymous Coward on Sunday August 02 2020, @01:27PM (2 children)

            by Anonymous Coward on Sunday August 02 2020, @01:27PM (#1030238)

            Unfortunately, what hourly employees do off the clock definitely can affect a business. Just look at all the people getting fired when the online lynch mobs get offended about things. Sometimes, it does appear justified, but other times it's a case of mistaken identity or there's no real proof to evaluate.

            I'm not really sure what a business should do with somebody who becomes the face of a particularly noxious point of view. People are going to avoid businesses that employ high profile neo-Nazis in customer facing positions.

            • (Score: 3, Insightful) by Runaway1956 on Sunday August 02 2020, @03:18PM (1 child)

              by Runaway1956 (2926) Subscriber Badge on Sunday August 02 2020, @03:18PM (#1030288) Journal

              customer facing positions

              That is an important factor. If Tom sees customers all day, every day, and the customers begin to avoid him, or even to ask for someone else to serve them, then Tom is quickly out of a job. He won't be fired for his noxious political views, though. Instead he will be laid off or fired for his lack of performance - that is, he no longer makes sales quotas.

              You, the customer, have the right to vote with your wallet. Tom posts his white supremacist ideas all over social media, you don't like it, you don't have to deal with Tom at all. When you walk into the dealership (McDonalds?) where Tom works, you ask that Sally or Phil serve your needs, and avoid Tom.

              However, I don't think you have the right to seek Tom out if he works out back in the stockroom, just to create a scene.

              • (Score: 2) by Joe Desertrat on Sunday August 02 2020, @09:10PM

                by Joe Desertrat (2454) on Sunday August 02 2020, @09:10PM (#1030435)

                You, the customer, have the right to vote with your wallet. Tom posts his white supremacist ideas all over social media, you don't like it, you don't have to deal with Tom at all. When you walk into the dealership (McDonalds?) where Tom works, you ask that Sally or Phil serve your needs, and avoid Tom.

                Nice in theory, but in reality someone that recognizes Tom at a place of business as someone with personal views abhorrent to them is going to avoid that business entirely, probably for far longer than Tom is employed there.

      • (Score: 0, Troll) by Anonymous Coward on Sunday August 02 2020, @04:05AM (1 child)

        by Anonymous Coward on Sunday August 02 2020, @04:05AM (#1030153)

        Here at UCLA, section 3 on our promotion packets asks what our contributions are to the local community. So yea, #fuckcheer.

        Of course, section 2 is the diversity statement - how exactly do you promote diversity? Well shit, I'm the only white guy in a perfectly diverse department of Chinese males between age 25 and 35. My contribution to diversity is apologizing every day for oppressing them.

        If you want promotion here, you better be a good corporate citizen, uhhh I mean independent thinking academic.

        • (Score: -1, Flamebait) by Anonymous Coward on Sunday August 02 2020, @01:15PM

          by Anonymous Coward on Sunday August 02 2020, @01:15PM (#1030234)

          Become a cervical individual.

      • (Score: 4, Insightful) by mhajicek on Sunday August 02 2020, @05:02AM (3 children)

        by mhajicek (51) on Sunday August 02 2020, @05:02AM (#1030165)

        The amendments limit the power of the government, of which a public school is part. They do not limit non-government entities. Private employment is at will, and one can be let go for no reason at all.

        --
        The spacelike surfaces of time foliations can have a cusp at the surface of discontinuity. - P. Hajicek
        • (Score: 1) by fustakrakich on Sunday August 02 2020, @05:09AM (1 child)

          by fustakrakich (6150) on Sunday August 02 2020, @05:09AM (#1030166) Journal

          So private schools can can give them the boot?

          --
          La politica e i criminali sono la stessa cosa..
          • (Score: 0) by Anonymous Coward on Sunday August 02 2020, @05:29AM

            by Anonymous Coward on Sunday August 02 2020, @05:29AM (#1030172)

            Of course! And fire dissenting teachers. To protect the purity of the teachings.

        • (Score: 3, Insightful) by hemocyanin on Sunday August 02 2020, @08:25AM

          by hemocyanin (186) on Sunday August 02 2020, @08:25AM (#1030202) Journal

          Yeah -- maybe it's time for a constitutional amendment incorporating all the bill of rights against private business because anything else is a massive loophole through which the enlightenment values underpinning the BoR are destroyed, the 4A and the third party doctrine being the most egregious example.

      • (Score: 1) by hemocyanin on Sunday August 02 2020, @08:30AM

        by hemocyanin (186) on Sunday August 02 2020, @08:30AM (#1030203) Journal

        I don't understand the "afraid" part. No employer should be allowed violate rights in the ways government can't. I don't work for anyone but I have worked jobs before starting my own business, and trading hours for dollars is not supposed to be enslavement.

    • (Score: 2) by PartTimeZombie on Sunday August 02 2020, @11:17PM

      by PartTimeZombie (4827) on Sunday August 02 2020, @11:17PM (#1030482)

      Why would this even need to be a conversation?

      That link you posted about some young woman having to choose between resigning or being suspended is just Orwellian nonsense. What she should have said to the idiot who offered her the choice was "fuck you". (Easy for me to say, I know).

      If some kid doesn't get picked for the team and reacts surely it is just a kid expressing disappointment. Don't people talk to each other any more? Why wouldn't the coach take her aside for a quiet word? Weirdos, the lot of them, wasting the court's time.

    • (Score: 0) by Anonymous Coward on Monday August 03 2020, @03:00AM

      by Anonymous Coward on Monday August 03 2020, @03:00AM (#1030562)

      If a teacher says, "The principal is an asshole" on their personal website, or on their own social media account, that's fine. But if the teacher says, "fuck n_____" or "women are too stupid to learn calculus", I think it's reasonable evidence they will not make a good faith attempt to educate blacks or women, respectively and will not treat them fairly.

      Where and how do you draw the line?

  • (Score: 4, Insightful) by Runaway1956 on Sunday August 02 2020, @03:19AM (8 children)

    by Runaway1956 (2926) Subscriber Badge on Sunday August 02 2020, @03:19AM (#1030139) Journal

    Off-campus is off-campus. Nothing that a student does off campus falls under the authority of the school. Nothing. The school has a duty to educate - nothing more, nothing less. The police, and the court systems have authority off-campus and on. If a crime is committed, the cops need to get involved. If only a thought crime has been committed, then no one need be involved.

    • (Score: 3, Funny) by Anonymous Coward on Sunday August 02 2020, @03:24AM

      by Anonymous Coward on Sunday August 02 2020, @03:24AM (#1030140)

      Well they're not managing the education part so I guess they try to feel competent and important in other ways

    • (Score: 1, Interesting) by Anonymous Coward on Sunday August 02 2020, @03:33AM

      by Anonymous Coward on Sunday August 02 2020, @03:33AM (#1030141)

      This is a ruling more in kind with the 1960s Supreme Court decisions that we discussed in Civics, while by the 1980s and on the "disrupting the educational environment" excuse had stripped students of most of their newfound rights.

      I couldn't see a date for when this happened, as slow as American justice moves, she may be 25 already?

    • (Score: 1, Touché) by Anonymous Coward on Sunday August 02 2020, @05:09AM (5 children)

      by Anonymous Coward on Sunday August 02 2020, @05:09AM (#1030167)

      The ACLU have gone full woketard, I'm surprised they were involved in a 2020 free speech case.

      • (Score: 1, Insightful) by Anonymous Coward on Sunday August 02 2020, @05:57AM (4 children)

        by Anonymous Coward on Sunday August 02 2020, @05:57AM (#1030176)

        I am too, considering their silence when conservatives are being deplatformed all around, religious services are outlawed and the national agora is essentially shut down.

        I used to contribute to the national ACLU, but stopped after their beg letters became repetitions of "You won't believe what Trump is trying to do!", "Trump this", "Trump that" - I get that their consultants are trying to draft the appeal that will get them the most revenue, but the constant harping against our elected president got me to give all I budgeted in the "donations to guardians of freedom" category to the EFF instead, with a bit going to the state ACLU. I have hope that the state sections are still active in civil rights defense, and in this case it was ACLU Washington and ACLU Pennsylvania that worked on the case.

        • (Score: 3, Insightful) by Anonymous Coward on Sunday August 02 2020, @06:29AM (1 child)

          by Anonymous Coward on Sunday August 02 2020, @06:29AM (#1030182)

          Waaaaaaaaaaaaaaaaaah!

          If your "religious freedom" didn't require imposing The 10 Commandments on everyone, I could almost weep for you poor victims.

          • (Score: 0, Touché) by Anonymous Coward on Sunday August 02 2020, @06:47AM

            by Anonymous Coward on Sunday August 02 2020, @06:47AM (#1030186)

            I'm happy I'm causing you heartburn by holding opinions different to yours.

        • (Score: -1, Troll) by Anonymous Coward on Sunday August 02 2020, @06:31PM (1 child)

          by Anonymous Coward on Sunday August 02 2020, @06:31PM (#1030377)

          Or Trump is a criminal conman enacting racist policies that hurt people and violate constirutional rights. You overly sensitive white folk invested everything in the wrong guy, and being stubborn patriarchal fools you are incapable of admitting wrong so you gladly wolf down the most ridiculous propaganda that you could fact check in a few minutes.

          Thanks for becoming traitors, super A+ job!

          • (Score: 0) by Anonymous Coward on Sunday August 02 2020, @07:19PM

            by Anonymous Coward on Sunday August 02 2020, @07:19PM (#1030394)

            If White People weren't so ridiculously nice, you brown fucks wouldn't be here. Nor would you have electricity or running water in your home countries. You'd still be shitting in the street and carrying water on your heads.

  • (Score: -1, Troll) by Anonymous Coward on Sunday August 02 2020, @03:56AM (1 child)

    by Anonymous Coward on Sunday August 02 2020, @03:56AM (#1030152)

    Didn't get what they want... Didn't behave like a teammate... Got deeper into trouble for his/her/it's own attitude... Whines to a Judge...
    We found apk!

    • (Score: 0) by Anonymous Coward on Sunday August 02 2020, @10:28AM

      by Anonymous Coward on Sunday August 02 2020, @10:28AM (#1030209)

      Lets put this in perspective...
      Would you hire someone like this?
      Fuck no.

  • (Score: 0) by Anonymous Coward on Monday August 03 2020, @12:52AM

    by Anonymous Coward on Monday August 03 2020, @12:52AM (#1030511)

    The court did not provide an opinion on whether she was hot or not.

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