Free Speech Tuesday: Tinker on Snapchat

Mahoney Area School District v. B.L. (Supreme Court 2020)

This case is about whether the First Amendment protects high-school students and their Snaps against punishment and regulation by public school officials.

Question Presented by the School: Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.

Competing Question by the kid: Whether the court of appeals correctly held that a public high school violated the First Amendment when it punished a student for her colorful expression of frustration, made in an ephemeral Snapchat on her personal social media, on a weekend, off campus, containing no threat or harassment or mention of her school, and that did not cause or threaten any disruption of her school.

B.L. apparently was a varsity cheerleader during her freshman year, but was relegated to J.V. during her sophomore year.  After receiving that news, B.L. posted a photo of herself and several friends raising their middle fingers and including the following quote: “Fuck school fuck softball fuck cheer fuck everything.”  Although the post was only temporarily on Snapchat, at least one student took a screenshot and provided it to a school official.  In addition, at least one person accessed the vulgarity from a school computer.

B.L. was then kicked-off the team. According to the school, a good cheerleader must have “have respect for the school, coaches, teachers, [and] other cheerleaders” and must also avoid “foul language and inappropriate gestures.”  ACLU sued on B.L.’s behalf and won, including a 3rd Circuit decision limiting School’s control over student off-campus speech.




9 thoughts on “Free Speech Tuesday: Tinker on Snapchat

  1. 4

    While I was in law school, I was disturbed by how readily my fellow law students accepted censorship and had no thought of the long term effects on society, i.e. intelligence on potential threats or challenges. It seems the school administrators were of the same philosophy as the students in my law school class. It is so much easier to turn to your favorite news channel and only hear what you want to hear. The problem with this easy choice is that you are ignorant of the threats around you that may eventually kill you.

    1. 4.1

      It is NOT just the higher education of law school.

      Academia — in general (and for decades now) — has abdicated its higher responsibility of actually teaching critical thinking and instead has opted for the ‘group-think’ NON-meritocracy path of advancing those that best adhere to that type of “hear only what you want to hear.”

  2. 3

    Whatever happened to “no one likes a tattle tail” response from the purported adults in the room. Meh, I guess cheerleading squad is just as catty and mean girl in every generation but the over reaction from the adults ???? That’s the sad and disturbing part of this tail. It’s the enablement of the ‘cancel’ from what are suppose to be the adults — that’s so . . . irresponsible? Is that the right word? I don’t think I could bite my tongue long enough to last in the modern university environment.

  3. 2

    The Supreme Court has not yet ruled on the petition for certiorari in this case, so it may never actually hear this case. I might be wrong, but my prediction here is that the Court will pass on this one.

  4. 1

    OT, but another CAFC misstating the law and burning down more patent claims. link to

    Here, PROST, Chief Judge, CLEVENGER and STOLL, go after narrowing eligibility by narrowing “functionality of a computer” as narrow as the vile trio can. This one is striking at the heart of any “software” eligibility.

    “Simio maintains that claim 1 is not directed to an abstract idea because it “present[s] improvements to computer-implemented simulation, resulting in improvements in the computers’ capabilities.” Appellant’s Br. 33. To be
    sure, “software can make patent-eligible improvements to computer technology, and related claims are eligible as long as they are directed to non-abstract improvements to the functionality of a computer . . . itself.” Uniloc USA, Inc.
    v. LG Elecs. USA, Inc., 957 F.3d 1303, 1309 (Fed. Cir. 2020). But Simio has not shown how claim 1 is directed to improving a computer’s functionality.”

    1. 1.1

      Seriously? “performing an abstract idea”??? How in the world is that possible by an reasonable definition of abstract? Abstract is being used to mean the “invention” and since “abstract” is bad under Alice basically what they are saying is the claims are bad and ineligible unless proven otherwise.

      “Customedia, 951 F.3d at 1364 (quoting Intell. Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1367, 1370 (Fed. Cir. 2015)); see also BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1288 (Fed. Cir. 2018) (“These benefits, however, are not improvements to database functionality. Instead, they are benefits that flow from performing an abstract idea in conjunction with a well-known database structure.”).”

    2. 1.2

      Seriously? “performing an abstract idea”??? How in the world is that possible by an reasonable definition of abstract? Abstract is being used to mean the “invention” and since “abstract” is bad under Alice basically what they are saying is the claims are bad and ineligible unless proven otherwise.

      Exactly. The whole concept of “abstract idea” anymore is just a messy stew of muddled thinking and confused distortion of precedent. We would do better—by this point—simply to abandon the category in our jurisprudence and start over with a new terminology (in the same way that once we replaced “inventive step” with “non-obviousness,” so as not to be dragged down by the unintelligible welter of precedent that had grown up around the older term). Unfortunately, we torpedoed our last, best hope for a fix when the Tillis/Coons hearings torched the last subject-matter eligibility reform bill. By this point, we are basically locked into a trajectory in whcih the present §101 mess is going to persist for another decade at least.

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