PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 19-1842
__________
B.L., a minor, by and through
her father LAWRENCE LEVY and
her mother BETTY LOU LEVY
v.
MAHANOY AREA SCHOOL DISTRICT,
Appellant
__________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 3:17-cv-01734)
Hon. A. Richard Caputo, United States District Judge
__________
Argued November 12, 2019
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
(Filed: June 30, 2020)
Arleigh P. Helfer, III
Theresa E. Loscalzo
Schnader Harrison Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103
Mary Catherine Roper
American Civil Liberties Union of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19102
Sara J. Rose [Argued]
American Civil Liberties Union
P.O. Box 23058
Pittsburgh, PA 15222
Molly M. Tack-Hooper
American Civil Liberties Union of Washington Foundation
901 Fifth Avenue
Suite 630
Seattle, WA 19102
Counsel for Appellees
David W. Brown
Michael I. Levin [Argued]
Levin Legal Group, P.C.
1800 Byberry Road
1301 Masons Mill Business Park
Huntingdon Valley, PA 19006
John G. Dean
Elliott Greenleaf & Dean
201 Penn Avenue
Suite 202
Scranton, PA 18503
2
Counsel for Appellant
Francisco M. Negrón, Jr.
National School Boards Association
1680 Duke Street
Room 523
Alexandria, VA 22314
Counsel for Amici Curiae National School Boards
Association; Pennsylvania School Boards Association;
Delaware School Boards Association; New Jersey School
Boards Association; Pennsylvania Principals Association;
National Association of Elementary School Principals;
National Association of Secondary School Principals; and
AASA, The School Superintendents Association
Sophia Cope
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
Counsel for Amici Curiae Electronic Frontier Foundation,
Student Press Law Center, Pennsylvania Center for the
First Amendment, and Brechner Center for Freedom of
Information
Marieke T. Beck-Coon
Foundation for Individual Rights in Education
510 Walnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Amicus Curiae Foundation for Individual
Rights in Education
3
__________
OPINION OF THE COURT
__________
KRAUSE, Circuit Judge.
Public school students’ free speech rights have long de-
pended on a vital distinction: We “defer to the school[]” when
its “arm of authority does not reach beyond the schoolhouse
gate,” but when it reaches beyond that gate, it “must answer to
the same constitutional commands that bind all other institu-
tions of government.” Thomas v. Bd. of Educ., 607 F.2d 1043,
1044–45 (2d Cir. 1979). The digital revolution, however, has
complicated that distinction. With new forms of communica-
tion have come new frontiers of regulation, where educators
assert the power to regulate online student speech made off
school grounds, after school hours, and without school re-
sources.
This appeal takes us to one such frontier. Appellee B.L.
failed to make her high school’s varsity cheerleading team and,
over a weekend and away from school, posted a picture of her-
self with the caption “fuck cheer” to Snapchat. J.A. 484. She
was suspended from the junior varsity team for a year and sued
her school in federal court. The District Court granted sum-
mary judgment in B.L.’s favor, ruling that the school had vio-
lated her First Amendment rights. We agree and therefore will
affirm.
I. BACKGROUND
B.L. is a student at Mahanoy Area High School (MAHS).
As a rising freshman, she tried out for cheerleading and made
4
junior varsity. The next year, she was again placed on JV. To
add insult to injury, an incoming freshman made the varsity
team.
B.L. was frustrated: She had not advanced in cheerleading,
was unhappy with her position on a private softball team, and
was anxious about upcoming exams. So one Saturday, while
hanging out with a friend at a local store, she decided to vent
those frustrations. She took a photo of herself and her friend
with their middle fingers raised and posted it to her Snapchat
story.1 The snap was visible to about 250 “friends,” many of
whom were MAHS students and some of whom were cheer-
leaders, and it was accompanied by a puerile caption: “Fuck
school fuck softball fuck cheer fuck everything.” J.A. 484. To
that post, B.L. added a second: “Love how me and [another
student] get told we need a year of jv before we make varsity
but that’s [sic] doesn’t matter to anyone else? .”2 J.A. 485.
One of B.L.’s teammates took a screenshot of her first snap
and sent it to one of MAHS’s two cheerleading coaches. That
coach brought the screenshot to the attention of her co-coach,
1
“Snapchat is a social media application for smartphones
that allows users to send private text, photo, and video mes-
sages to other users.” J.A. 6. Snaps can be viewed only tem-
porarily and “cannot be accessed from the web.” Id.
2
The “upside-down smiley face” emoji “indicate[s] silliness,
sarcasm, irony, passive aggression, or frustrated resignation.”
Upside-Down Face Emoji, Dictionary.com, https://www.dic-
tionary.com/e/emoji/upside-down-face-emoji (last visited
June 25, 2020).
5
who, it turned out, was already in the know: “Several students,
both cheerleaders and non-cheerleaders,” had approached her,
“visibly upset,” to “express their concerns that [B.L.’s] [s]naps
were inappropriate.” J.A. 7 (citations omitted).
The coaches decided B.L.’s snap violated team and school
rules, which B.L. had acknowledged before joining the team,
requiring cheerleaders to “have respect for [their] school,
coaches, . . . [and] other cheerleaders”; avoid “foul language
and inappropriate gestures”; and refrain from sharing “negative
information regarding cheerleading, cheerleaders, or
coaches . . . on the internet.” J.A. 439. They also felt B.L.’s
snap violated a school rule requiring student athletes to “con-
duct[] themselves in such a way that the image of the Mahanoy
School District would not be tarnished in any manner.”
J.A. 486. So the coaches removed B.L. from the JV team. B.L.
and her parents appealed that decision to the athletic director,
school principal, district superintendent, and school board. But
to no avail: Although school authorities agreed B.L. could try
out for the team again the next year, they upheld the coaches’
decision for that year. Thus was born this lawsuit.
B.L. sued the Mahanoy Area School District (School Dis-
trict or District) in the United States District Court for the Mid-
dle District of Pennsylvania. She advanced three claims under
42 U.S.C. § 1983: that her suspension from the team violated
the First Amendment; that the school and team rules she was
said to have broken are overbroad and viewpoint discrimina-
tory; and that those rules are unconstitutionally vague.
The District Court granted summary judgment in B.L.’s fa-
vor. It first ruled that B.L. had not waived her speech rights by
agreeing to the team’s rules and that her suspension from the
6
team implicated the First Amendment even though extracurric-
ular participation is merely a privilege. Turning to the merits,
the Court ruled that B.L.’s snap was off-campus speech and
thus not subject to regulation under Bethel School District
No. 403 v. Fraser, 478 U.S. 675 (1986). And, finding that
B.L.’s snap had not caused any actual or foreseeable substan-
tial disruption of the school environment, the Court ruled her
snap was also not subject to discipline under Tinker v. Des
Moines Independent Community School District, 393 U.S. 503
(1969). The Court therefore concluded that the School District
had violated B.L.’s First Amendment rights, rendering unnec-
essary any consideration of her overbreadth, viewpoint dis-
crimination, or vagueness claims. It entered judgment in
B.L.’s favor, awarding nominal damages and requiring the
school to expunge her disciplinary record. This appeal fol-
lowed.
II. DISCUSSION3
The First Amendment provides that “Congress shall make
no law . . . abridging the freedom of speech.” U.S. Const.
amend. I. Over time, those deceptively simple words have
spun off a complex doctrinal web. The briefs here are a testa-
ment to that complexity, citing a wealth of cases involving not
3
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343(a), and we have jurisdiction under 28 U.S.C.
§ 1291. We review a grant of summary judgment de novo and
apply the same standard as the district court. J.S. ex rel.
Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 925 (3d Cir.
2011) (en banc).
7
only student speech but also public employee speech, obscen-
ity, indecency, and many other doctrines.
At its heart, though, this appeal requires that we answer just
two questions. The first is whether B.L.’s snap was protected
speech. If it was not, our inquiry is at an end. But if it was, we
must then decide whether B.L. validly waived that protection.
Although navigating those questions requires some stopovers
along the way, we ultimately conclude that B.L.’s snap was
protected and that she did not waive her right to post it.
A. B.L.’s Speech Was Entitled to First
Amendment Protection
We must first determine what, if any, protection the First
Amendment affords B.L.’s snap. To do so, we begin by can-
vassing the Supreme Court’s student speech cases. Next, we
turn to a threshold question on which B.L.’s rights depend:
whether her speech took place “on” or “off” campus. Finally,
having found that B.L.’s snap was off-campus speech, we as-
sess the School District’s arguments that it was entitled to pun-
ish B.L. for that speech under Fraser, Tinker, and several other
First Amendment doctrines.
1. Students’ broad free speech rights and the
on- versus off-campus distinction
For over three-quarters of a century, the Supreme Court has
recognized that although schools perform “important, delicate,
and highly discretionary functions,” there are “none that they
may not perform within the limits of the Bill of Rights.” W.
Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943).
And the free speech rights of minors are subject to “scrupulous
protection,” lest we “strangle the free mind at its source and
8
teach youth to discount important principles of our government
as mere platitudes.” Id.
In Tinker v. Des Moines Independent Community School
District, 393 U.S. 503 (1969), the Court reiterated that students
do not “shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.” Id. at 506. Expanding on
Barnette, Tinker also held that student speech rights are “not
confined to the supervised and ordained discussion” of the
classroom; instead, they extend to all aspects of “the process
of attending school,” whether “in the cafeteria, or on the play-
ing field, or on the campus during authorized hours.” Id. at
512–13. Without “a specific showing of constitutionally valid
reasons to regulate their speech,” then, “students are entitled to
freedom of expression,” id. at 511, and cannot be punished for
“expressions of feelings with which [school officials] do not
wish to contend,” id. (quoting Burnside v. Byars, 363 F.2d 744,
749 (5th Cir. 1966)).
To these broad rights, Tinker added a narrow exception “in
light of the special characteristics of the school environment.”
393 U.S. at 506. Some forms of speech, the Court recognized,
can “interfere[] . . . with the rights of other students to be secure
and to be let alone.” Id. at 508. So as part of their obligation
“to prescribe and control conduct in the schools,” id. at 507,
school officials may regulate speech that “would ‘materially
and substantially interfere with the requirements of appropriate
discipline in the operation of the school,’” id. at 509 (quoting
Burnside, 363 F.2d at 749). To exercise that regulatory power,
however, schools must identify “more than a mere desire to
avoid the discomfort and unpleasantness that always
9
accompany an unpopular viewpoint” and more than “undiffer-
entiated fear or apprehension of disturbance.” Id. at 508–09.
Tinker thus struck a balance, reaffirming students’ rights
but recognizing a limited zone of heightened governmental au-
thority. But that authority remains the exception, not the rule.
Where Tinker applies, a school may prohibit student speech
only by showing “a specific and significant fear of disruption,”
J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915,
926 (3d Cir. 2011) (en banc) (quoting Saxe v. State Coll. Area
Sch. Dist., 240 F.3d 200, 211 (3d Cir. 2001)), and where it does
not, a school seeking to regulate student speech “must answer
to the same constitutional commands that bind all other insti-
tutions of government,” Thomas, 607 F.2d at 1045.
In each of three later cases, the Court identified a limited
area in which schools have leeway to regulate student speech
without meeting Tinker’s substantial disruption standard. In
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986),
it held that to “inculcate the habits and manners of civility,”
schools may “prohibit the use of vulgar and offensive terms.”
Id. at 681, 683 (citation omitted). In Hazelwood School Dis-
trict v. Kuhlmeier, 484 U.S. 260 (1988), it held that officials
may regulate student speech in the context of “school-spon-
sored . . . expressive activities that students, parents, and mem-
bers of the public might reasonably perceive to bear the impri-
matur of the school,” provided “their actions are reasonably re-
lated to legitimate pedagogical concerns.” Id. at 271–73. And
in Morse v. Frederick, 551 U.S. 393 (2007), given educators’
“important—indeed, perhaps compelling[—]interest” in “de-
terring drug use by schoolchildren,” id. at 407 (internal quota-
tion marks and citation omitted), the Court held that schools
10
may “restrict student expression that they reasonably regard as
promoting illegal drug use,” id. at 408.
Although each of these cases added a wrinkle, none dis-
turbed the basic framework on which Tinker relied. Fraser
could not have been disciplined had he “delivered the same
speech in a public forum outside the school context.” Morse,
551 U.S. at 405. Kuhlmeier’s editorial authority applies “only
when a student’s school-sponsored speech could reasonably be
viewed as speech of the school itself,” which “is not lightly to
be presumed.” Saxe, 240 F.3d at 213–14. And central to
Morse was not only the speech’s relationship to the school
day—that it was made “during school hours” and “at a school-
sanctioned activity,” 551 U.S. at 400–01 (citation omitted)—
but also that juvenile drug use “cause[s] severe and permanent
damage to the health and well-being of young people,” id. at
407.
The Court’s case law therefore reveals that a student’s First
Amendment rights are subject to narrow limitations when
speaking in the “school context” but “are coextensive with
[those] of an adult” outside that context. J.S., 650 F.3d at 932.
2. B.L.’s snap was “off-campus” speech
To define B.L.’s speech rights with precision, therefore, we
must ask whether her snap was “on-” or “off-campus”
speech—terms we use with caution, for the schoolyard’s phys-
ical boundaries are not necessarily coextensive with the
“school context,” J.S., 650 F.3d at 932. After reviewing the
line separating on- from off-campus speech, we hold B.L.’s
speech falls on the off-campus side.
11
It is “well established” that the boundary demarcating
schools’ heightened authority to regulate student speech “is not
constructed solely of the bricks and mortar surrounding the
school yard.” Layshock ex rel. Layshock v. Hermitage Sch.
Dist., 650 F.3d 205, 216 (3d Cir. 2011) (en banc). That is the
only conclusion to be drawn from the fact that the Supreme
Court, in defining the scope of schools’ authority, has consist-
ently focused not on physical boundaries but on the extent to
which schools control or sponsor the forum or the speech. See
Morse, 551 U.S. at 400–01; Kuhlmeier, 484 U.S. at 270–71;
Fraser, 478 U.S. at 677, 680. And that focus makes sense: Just
as the school context “is not confined to . . . the classroom,”
Tinker, 393 U.S. at 512, neither can it be confined to the
school’s physical grounds because exclusive dependence on
“real property lines,” Layshock, 650 F.3d at 221 (Jordan, J.,
concurring), would exclude “part[s] of the process of attending
school” that occur beyond those lines, Tinker, 393 U.S. at 512.
Equally well established, however, is that “the ‘school
yard’ is not without boundaries and the reach of school author-
ities is not without limits.” Layshock, 650 F.3d at 216. School
officials, in other words, may not “reach into a child’s home
and control his/her actions there to the same extent that it can
control that child when he/she participates in school sponsored
activities.” Id. Permitting such expansive authority would
twist Tinker’s limited accommodation of the “special charac-
teristics of the school environment,” 393 U.S. at 506, into a
broad rule reducing the free speech rights of all young people
who happen to be enrolled in public school.
The courts’ task, then, is to discern and enforce the line sep-
arating “on-” from “off-campus” speech. That task has been
12
tricky from the beginning. See, e.g., Thomas, 607 F.2d at
1045–47, 1050–52 (declining to apply Tinker to a student pub-
lication because, although a few articles were written and
stored at school, the publication was largely “conceived, exe-
cuted, and distributed outside the school”). But the difficulty
has only increased after the digital revolution. Students use
social media and other forms of online communication with
remarkable frequency. Sometimes the conversation online is a
high-minded one, with students “participating in issue- or
cause-focused groups, encouraging other people to take action
on issues they care about, and finding information on protests
or rallies.” Br. of Amici Curiae Electronic Frontier Foundation
et al. 13. Other times, that conversation is mundane or plain
silly. Either way, the “omnipresence” of online communica-
tion poses challenges for school administrators and courts
alike. Layshock, 650 F.3d at 220–21 (Jordan, J., concurring);
see J.S., 650 F.3d at 940 (Smith, J., concurring).
Although the Supreme Court has not addressed the on- and
off-campus divide in the context of online speech, it has laid
down invaluable road markers that guide our way. The Court
first addressed the internet’s “vast democratic forums” in
Reno v. ACLU, 521 U.S. 844, 868 (1997). Reno recognized
that the internet poses unique challenges but also offers unique
advantages, “provid[ing] relatively unlimited, low-cost capac-
ity for communication of all kinds” and content “as diverse as
human thought,” id. at 870 (citation omitted). In applying the
First Amendment to this technology, the Court was careful not
to discard existing doctrines. Instead, it applied those doctrines
faithfully, trusting that even faced with a “new marketplace,”
“[t]he interest in encouraging freedom of expression in a dem-
ocratic society outweighs any theoretical but unproven benefit
13
of censorship.” Id. at 885. It took a similar approach in Pack-
ingham v. North Carolina, 137 S. Ct. 1730 (2017), recognizing
both the “vast potential” and serious risks connected with the
“revolution of historic proportions” wrought by new commu-
nicative technologies. Id. at 1736. As in Reno, in Packingham
the Court met new technologies with settled precedent, “exer-
cis[ing] extreme caution before suggesting that the First
Amendment provides scant protection for access to vast net-
works” in “the modern public square.” Id. at 1736–37.
The lesson from Reno and Packingham is that faced with
new technologies, we must carefully adjust and apply—but not
discard—our existing precedent. The thrust of that lesson is
not unique to the First Amendment context. But it may be of
special importance there because each new communicative
technology provides an opportunity for “unprecedented” regu-
lation. Packingham, 137 S. Ct. at 1737. And even when it is
unclear whether the government will seize upon such an op-
portunity, the lack of clarity itself has a harmful “chilling effect
on free speech.” Reno, 521 U.S. at 872. Updating the line
between on- and off-campus speech may be difficult in the so-
cial media age, but it is a task we must undertake.
Thankfully, significant groundwork has been laid. In 2011,
we decided two appeals as a full Court, J.S. and Layshock, both
of which involved a student’s fake MySpace profile ridiculing
a school official using crude language. Although the profiles
were created away from school, they were not far removed
from the school environment: They attacked school officials,
used photos copied from the schools’ websites, were shared
with students, caused gossip at school and, in Layshock, were
viewed on school computers. J.S., 650 F.3d at 920–23;
14
Layshock, 650 F.3d at 207–09. Even so, in both decisions we
treated the profiles as “off-campus” speech. In J.S., we em-
phasized that the speech occurred “outside the school, during
non-school hours,” and deemed irrelevant that a printout of the
profile had been brought into the school at the principal’s re-
quest. 650 F.3d at 932–33. We went further in Layshock, re-
jecting the arguments that the profile was “on-campus” speech
because the profile was “aimed at the School District Commu-
nity and . . . accessed on campus,” 650 F.3d at 216, and because
the student had “enter[ed]” the school’s website to copy the
principal’s photo, id. at 214–16.
J.S. and Layshock yield the insight that a student’s online
speech is not rendered “on campus” simply because it involves
the school, mentions teachers or administrators, is shared with
or accessible to students, or reaches the school environment.
That was true in the analog era, see, e.g., Thomas, 607 F.2d at
1050–52; see also Porter v. Ascension Parish Sch. Bd., 393
F.3d 608, 611–12, 616–17 (5th Cir. 2004), and it remains true
in the digital age.
Applying these principles to B.L.’s case, we easily con-
clude that her snap falls outside the school context. This is not
a case in which the relevant speech took place in a “school-
sponsored” forum, Fraser, 478 U.S. at 677, or in a context that
“bear[s] the imprimatur of the school,” Kuhlmeier, 484 U.S. at
271. Nor is this a case in which the school owns or operates
an online platform. Cf. Oral Arg. Tr. 25 (discussing a “school
listserv”). Instead, B.L. created the snap away from campus,
over the weekend, and without school resources, and she
shared it on a social media platform unaffiliated with the
school. And while the snap mentioned the school and reached
15
MAHS students and officials, J.S. and Layshock hold that those
few points of contact are not enough. B.L.’s snap, therefore,
took place “off campus.”4
3. The punishment of B.L.’s off-campus speech
violated the First Amendment
We next ask whether the First Amendment allowed the
School District to punish B.L. for her off-campus speech. The
District defends its decision under (i) Fraser, (ii) Tinker, and
4
Our concurring colleague asserts that it is “a fundamental
principle of judicial restraint” that we must avoid analyzing
constitutional issues beyond those implicated by “the precise
facts” before us. Concurr. 1 (quoting Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 450 (2008) (dis-
cussing the disfavored nature of facial challenges)). We take
no issue with that general principle. Indeed, that principle ex-
plains why, although we had to tease out the on- and off-cam-
pus distinction enough to be confident about how to categorize
B.L.’s speech, we have refrained from opining about how that
distinction should be applied in future cases. We fail to see
how our choice not to analyze hypothetical questions—for in-
stance, the exact boundaries of “school-supervised channels”
for “all forms of social media students use that schools moni-
tor,” or which types of speech “constitute[] ‘harassment’ in the
school and social media context,” id. at 3—shows a lack of ju-
dicial restraint. Just as in all areas of constitutional law, future
cases requiring additional analysis will supply the “facts” nec-
essary “to draw . . . clear and administrable line[s].” Id.
16
(iii) a series of First Amendment doctrines beyond the student
speech context. We address each in turn.
i. B.L.’s punishment cannot be justified
under Fraser
The School District principally defends its actions based on
its power “to enforce socially acceptable behavior” by banning
“vulgar, lewd, obscene, or plainly offensive” speech by stu-
dents. Appellant’s Br. 7–8. Under Fraser, such speech re-
ceives “no First Amendment protection . . . in school.” Saxe,
240 F.3d at 213 (emphasis added). But the District’s argument
runs aground on our precedent holding that Fraser does not
apply to off-campus speech. J.S., 650 F.3d at 932–33;
Layshock, 650 F.3d at 216–17, 219. As a panel, we may not
revisit that precedent absent “intervening authority,” Reich v.
D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir. 1996), which neither
party identifies here. See Morse, 551 U.S. at 405 (“Had Fraser
delivered the same speech in a public forum outside the school
context, it would have been protected.”).
To prevail under Fraser, therefore, the School District must
explain why J.S. and Layshock do not supply the decisional
rule. Its attempts to do so come in several varieties but share
the same thrust: that we should apply Fraser to off-campus
speech where the speech or punishment involved an extracur-
ricular activity. We are unpersuaded.
To begin, the argument collides with our precedent. In
Layshock, among several other punishments, the student was
“banned from all extracurricular activities.” 650 F.3d at 210.
But at no point did we suggest any relevant distinction among
the punishments he had received. Quite the opposite:
17
Although we acknowledged the Second Circuit had suggested
a lesser degree of First Amendment protection for punishments
related to extracurricular activities, see Doninger ex rel. Don-
inger v. Niehoff, 527 F.3d 41, 53 (2d Cir. 2008), in Layshock
we declined to follow that analysis and even clarified that our
discussion of Doninger was not a “suggest[ion] that we
agree[d] with that court’s conclusion,” 650 F.3d at 218. All
that mattered to us in Layshock was that the school had “pun-
ish[ed]” the student for his speech, see id. at 214, 216, as B.L.
was undoubtedly punished for hers.5
Even apart from Layshock’s guidance, we see no sound rea-
son why we should graft an extracurricular distinction onto our
case law. Yes, students have “a reduced expectation of pri-
vacy” under the Fourth Amendment when they participate in
extracurricular athletics. Vernonia Sch. Dist. 47J v. Acton,
515 U.S. 646, 657, 661–62, 665 (1995). But the School
5
The District Court assumed without deciding that B.L.’s
claim fell within the First Amendment retaliation framework,
which requires a plaintiff to show that “(1) he engaged in con-
stitutionally protected conduct, (2) the defendant engaged in
retaliatory action sufficient to deter a person of ordinary firm-
ness from exercising his constitutional rights, and (3) a causal
link [existed] between the constitutionally protected conduct
and the retaliatory action.” Baloga v. Pittston Area Sch. Dist.,
927 F.3d 742, 752 (3d Cir. 2019) (alteration in original) (inter-
nal quotation marks and citation omitted). The parties here dis-
pute only whether B.L.’s speech was constitutionally pro-
tected. For the same reasons as the District Court, we conclude
that we need not decide whether the retaliation framework is
appropriate in this context.
18
District’s reliance on that line of cases is misplaced. In the
Fourth Amendment context, “the ultimate measure of the con-
stitutionality of a governmental search is ‘reasonableness,’” a
standard which “is judged by balancing [the search’s] intrusion
on the individual’s Fourth Amendment interests against its pro-
motion of legitimate governmental interests.” Id. at 652–53
(citation omitted). The First Amendment, however, abhors “ad
hoc balancing of relative social costs and benefits.” United
States v. Stevens, 559 U.S. 460, 470 (2010); accord, e.g.,
Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 792 (2011).
That line dividing First from Fourth Amendment doctrine is
foundational, and we will not blur it here.
The same goes for the argument that B.L. had no “constitu-
tionally protected property right to participate in extracurricu-
lar activities,” Appellant’s Br. 17. Be that as it may,6 due pro-
cess case law—which also “depends upon a balancing of the
individual rights and the governmental interests affected,”
Main Rd. v. Aytch, 522 F.2d 1080, 1090 (3d Cir. 1975)—is an
equally poor fit in the First Amendment context. To prevail on
a free speech claim, a plaintiff need not show that his interests
in speaking outweigh the government’s interests in suppress-
ing the speech. Such a rule would “revise the ‘judgment [of]
6
We have suggested that students have no cognizable prop-
erty interest in extracurricular activities, Angstadt v. Midd-W.
Sch. Dist., 377 F.3d 338, 344 (3d Cir. 2004), a suggestion ech-
oed by several other circuits, see, e.g., Lowery v. Euverard,
497 F.3d 584, 588 (6th Cir. 2007); Davenport ex rel. Daven-
port v. Randolph Cty. Bd. of Educ., 730 F.2d 1395, 1397 (11th
Cir. 1984). We take no position here on the wisdom or cor-
rectness of that proposition.
19
the American people,’ embodied in the First Amendment, ‘that
the benefits of its restrictions on the Government outweigh the
costs.’”7 Entm’t Merchants, 564 U.S. at 792 (alteration in orig-
inal) (quoting Stevens, 559 U.S. at 470).
The School District next offers up an analogy: that students
who join extracurriculars “represent their schools much in the
way that government employees represent their employer.”
Appellant’s Br. 30. So by going out for the team, it posits,
students subject their speech rights to coaches’ whims so long
as their speech does not involve “a matter of public concern.”
Id. (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).
This argument, however, depends on dicta from the Sixth Cir-
cuit, which went on to clarify that it was not “grafting a public-
concern requirement onto” student speech doctrine and had in-
voked the Pickering doctrine only to discuss whether “disrup-
tion will occur when a subordinate challenges the authority of
his or her superior.” See Lowery v. Euverard, 497 F.3d 584,
598 n.5 (6th Cir. 2007). And neither “the Supreme Court nor
any other federal court of appeals has held [the personal mat-
ter/public concern] distinction applicable in student speech
cases.” Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 766
(9th Cir. 2006). The reason is simple: As we have recognized,
7
Similarly unavailing is the School District’s argument that
Pennsylvania law permits regulation of students’ “conduct and
deportment” only when they are “under the supervision of the
board of school directors and teachers,” see 24 P.S. § 5-510,
but authorizes regulation of extracurricular activities without
that limitation, see id. § 5-511. Whether or not that is true is
wholly beside the point, as state law cannot excuse a violation
of the federal constitution. See U.S. Const. art. VI, cl. 2.
20
students’ free speech rights are not limited to matters of public
concern. See, e.g., J.S., 650 F.3d at 926 (“Although Tinker
dealt with political speech, the opinion has never been confined
to such speech.”); see also Pinard, 467 F.3d at 766 (“[N]either
Tinker nor its progeny limited students’ rights solely to the ex-
ercise of political speech or speech that touches on a matter of
public concern.”).
Above all, we cannot depart from J.S. and Layshock with-
out undermining the values those cases sought to protect. What
was “unseemly and dangerous” about the efforts to apply Fra-
ser to off-campus speech was not the punishments the students
received, but that those punishments were used to “control”
students’ free expression in an area traditionally beyond regu-
lation. Layshock, 650 F.3d at 216. Those concerns apply with
equal force where a school seeks to control student speech us-
ing even modest measures, much less participation in extracur-
ricular activities, which “are an important part of an overall ed-
ucational program,” Br. of Amicus Curiae Foundation for In-
dividual Rights in Education 7–8 (citation omitted). Thus,
whatever the school’s preferred mode of discipline, it impli-
cates the First Amendment so long as it comes in response to
the student’s exercise of free speech rights.
No one challenges that is exactly what happened to B.L. As
a result, we can no more hold that B.L. abdicated her First
Amendment right to speak as a cheerleader than we could re-
turn to bygone days in which a police officer was thought to
have a “right to talk politics . . . [but not] to be a policeman.”
See O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S.
712, 716–17 (1996) (quoting McAuliffe v. Mayor, 29 N.E. 517,
517 (Mass. 1892)). Instead, we conclude, Fraser did not
21
authorize the School District’s punishment of B.L. for her off-
campus speech.
ii. Nor can B.L.’s punishment be justified
under Tinker
The School District falls back on Tinker, arguing that
B.L.’s snap was likely to substantially disrupt the cheerleading
program. But as we have explained, although B.L.’s snap in-
volved the school and was accessible to MAHS students, it
took place beyond the “school context,” J.S., 650 F.3d at 932.
We therefore confront the question whether Tinker applies to
off-campus speech.
That is a question we have avoided answering to date. In
Layshock, the school defended its decision to punish the stu-
dent only under Fraser. See 650 F.3d at 216. And in J.S., we
were able to “assume, without deciding,” that Tinker applied
to speech like J.S.’s, 650 F.3d at 926, because we held that the
school had not “reasonably forecast[] a substantial disruption
of or material interference with the school,” id. at 931. But the
question is once again squarely before us,8 and for three rea-
sons we conclude we must answer it today.
8
One of the amici supporting B.L. suggests we follow J.S.
by assuming Tinker applies and holding that her snap did not
satisfy the substantial disruption standard. Br. of Amicus Cu-
riae Foundation for Individual Rights in Education 17. An-
other set of amici on B.L.’s side takes a different view, con-
tending that Tinker’s substantial disruption standard “should
not apply to off-campus speech.” Br. of Amici Curiae Elec-
tronic Frontier Foundation et al. 4 (capitalization altered). For
22
First, our choice to sidestep the issue in J.S. adhered to the
maxim that, where possible, we should avoid difficult consti-
tutional questions in favor of simpler resolutions. There, it was
sensible to avoid the issue because we could resolve the case
by applying well-settled precedent addressing the substantial
disruption standard in the context of the school environment.
See, e.g., Sypniewski v. Warren Hills Reg’l Bd. of Educ.,
307 F.3d 243, 254–57 (3d Cir. 2002); Saxe, 240 F.3d at 211–
12. But that is not the case here. The School District’s defense
of its decision to punish B.L. focuses not on disruption of the
school environment at large, but on disruption in the extracur-
ricular context—specifically, the cheerleading program B.L.
decried in her snap. And, as the parties’ and amici’s dueling
citations reveal, the question of how to measure the potentially
disruptive effect of student speech on particular extracurricular
activities has bedeviled our sister circuits,9 and it is not one we
her part, B.L. takes a middle path: She argues that “[f]un-
damental First Amendment principles plainly forbid giving
schools the power to censor student speech outside of school,”
Appellee’s Br. 12, but as the appellee, she unsurprisingly adds
we “need not answer that question in this case” because “even
if it were clear that schools may punish offensive, off-campus
speech under Tinker (which it is not),” the substantial disrup-
tion standard was not met here, id. at 12, 22. And on the other
side of the “v.,” both the School District and the amici that sup-
port it argue that Tinker applies to off-campus speech like
B.L.’s. See, e.g., Appellant’s Br. 23 & n.1, 41; Br. of Amici
Curiae National School Boards Association et al. 18–23.
9
Compare, e.g., Pinard, 467 F.3d at 760–61, 768–69 (hold-
ing that students’ distribution of a petition seeking their
23
have addressed to date. So were we to leapfrog Tinker’s ap-
plicability in favor of substantial disruption analysis, we would
still face complex and unresolved constitutional questions.10
coach’s resignation did not give rise to a reasonable forecast of
substantial disruption, in part because the students had reported
the coach’s misbehavior in a “responsibly tailored” way (cita-
tion omitted)), with, e.g., id. at 769–70 (holding that the ath-
letes’ refusal to board a bus before a game “substantially dis-
rupted and materially interfered with a school activity”), Low-
ery, 497 F.3d at 593–94 (holding that a similar petition request-
ing a coach’s termination qualifies as substantially disruptive
because of its effect on “team morale and unity”), and Wildman
ex rel. Wildman v. Marshalltown Sch. Dist., 249 F.3d 768,
769–72 (8th Cir. 2001) (holding that a student athlete’s letter
calling for teammates to criticize their coach disturbed the goal
of providing “an educational environment conducive to learn-
ing team unity and sportsmanship and free from disruptions
and distractions that could hurt or stray the cohesiveness of the
team”).
10
Our concurring colleague argues that this case is
“straightforward” under Tinker’s substantial disruption stand-
ard, Concurr. 3, because school authorities conceded there was
“no reason to believe that the Snap would disrupt classroom or
school activities,” e.g., Appellee’s Br. 8. But that is not the
School District’s argument. Rather, the District contends that
B.L.’s snap was disruptive because it undercut the “team mo-
rale” and “chemistry” on which the cheerleading program de-
pends and because, in the unique context of extracurricular ac-
tivities, this is enough to satisfy Tinker. Appellant’s Br. 41.
That contention finds some grounding in opinions from other
24
Second, when we decided J.S., the social media revolution
was still in its infancy, and few appellate courts had grappled
with Tinker’s application to off-campus online speech. In
avoiding the issue, we afforded our sister circuits the chance to
Courts of Appeals holding that because school athletics pro-
grams rely heavily on “team unity,” “cohesiveness,” and
“sportsmanship,” Wildman, 249 F.3d at 771, and advance a
“narrower” set of goals than does the education system as a
whole, Lowery, 497 F.3d at 589, student speech that under-
mines those values satisfies Tinker’s substantial disruption
standard. See Lowery, 497 F.3d at 593–94; Wildman, 249 F.3d
at 769–72. But see Pinard, 467 F.3d at 768–69. Here, B.L.
does not dispute that her speech would undermine team morale
and chemistry: She openly criticized the program and ques-
tioned her coaches’ decisionmaking, causing a number of
teammates and fellow students to be “visibly upset” and to ap-
proach the coaches with their “concerns,” J.A. 7 (citations
omitted). She did so, moreover, in the context of a sport in
which team members rely on each other for not only emotional
and moral support, but also physical safety. In this context, we
cannot so comfortably conclude that assuming Tinker’s ap-
plicability and analyzing substantial disruption would yield a
ready answer or a rule we could cogently explain for the benefit
of future cases. And while our colleague makes some refer-
ence to these issues in a footnote, we do not think they can be
swept aside under the umbrella “that courts may consider all
the ways in which student speech may be disruptive,” Con-
curr. 4 n.1. At bottom, we think it unwise to explore these un-
resolved questions without assessing the threshold question
whether Tinker applies to B.L.’s speech in the first place.
25
coalesce around an approach and the Supreme Court the
chance to resolve the issue. Nearly a decade later, however,
we see not only that social media has continued its expansion
into every corner of modern life, but also that no dominant ap-
proach has developed. All the while, we have relegated district
courts in this Circuit to confronting this issue without clear
guidance, prompting them to turn elsewhere for support, see,
e.g., Dunkley v. Bd. of Educ., 216 F. Supp. 3d 485, 492–94
(D.N.J. 2016), and to voice their growing frustration. As one
of our district judges put it, “a district court in this Circuit takes
up a student off-campus speech case for review with consider-
able apprehension and anxiety.” R.L. ex rel. Lordan v. Cent.
York Sch. Dist., 183 F. Supp. 3d 625, 635 (M.D. Pa. 2016).
Finally, while legal uncertainty of any kind is undesirable,
uncertainty in this context creates unique problems. Obscure
lines between permissible and impermissible speech have an
independent chilling effect on speech. See, e.g., Ashcroft v.
Free Speech Coal., 535 U.S. 234, 244 (2002) (reasoning that
the “uncertain reach” of a law punishing speech would “chill
speech within the First Amendment’s vast and privileged
sphere”). And because local officials are liable for constitu-
tional violations only where “every reasonable official would
understand that what he is doing is unlawful,” Russell v. Rich-
ardson, 905 F.3d 239, 251 (3d Cir. 2018) (internal quotation
marks and citation omitted), the unresolved issue of Tinker’s
scope has left a significant obstacle in the path of any student
seeking to vindicate her free speech rights through a § 1983
suit. See, e.g., Longoria ex rel. M.L. v. San Benito Indep. Con-
sol. Sch. Dist., 942 F.3d 258, 267 (5th Cir. 2019) (holding that
because the court had “declin[ed] to adopt a ‘specific rule,’” its
case law applying Tinker to off-campus speech “does not
26
constitute clearly-established binding law that should have
placed the defendants on notice about the constitutionality of
their actions”).
The time has come for us to answer the question. We begin
by canvassing the decisions of our sister circuits. We then con-
sider the wisdom of their various approaches, tested against
Tinker’s precepts. Finally, we adopt and explain our own, con-
cluding that Tinker does not apply to off-campus speech and
reserving for another day the First Amendment implications of
off-campus student speech that threatens violence or harasses
others.
a. Other courts’ approaches
Our sister circuits have approached this issue in three ways.
One group applies Tinker where it was reasonably foreseeable
that a student’s off-campus speech would reach the school en-
vironment. That test sprung from trying circumstances: In
Wisniewski ex rel. Wisniewski v. Board of Education, 494 F.3d
34 (2d Cir. 2007), a student created an instant messaging icon
showing “a pistol firing a bullet at a person’s head, above
which were dots representing splattered blood,” and beneath
which were the words “Kill Mr. VanderMolen,” the student’s
teacher. Id. at 35–36. That icon was visible to the student’s
“buddies,” and he sent messages displaying it to fellow stu-
dents. Id. at 36. In upholding his suspension, the Second Cir-
cuit held that it was appropriate to apply Tinker because “it was
reasonably foreseeable that the IM icon would come to the at-
tention of school authorities,” id. at 39, and that the violence-
threatening speech satisfied Tinker’s substantial disruption
standard, id. at 38–39. The Eighth Circuit, in another case in-
volving a threat of violence, took the same approach. See
27
D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647
F.3d 754, 757–59, 765–67 (8th Cir. 2011) (emphasizing that
“student creativity and . . . ability . . . can[not] flourish if vio-
lence threatens the school environment”).
But from those cases involving threats of violence, the “rea-
sonable foreseeability” standard spread far and wide. Multiple
circuits have applied it in cases involving sexual or racial har-
assment. See C.R. ex rel. Rainville v. Eugene Sch. Dist. 4J,
835 F.3d 1142, 1146, 1151 (9th Cir. 2016); S.J.W. ex rel. Wil-
son v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 773, 777–78
(8th Cir. 2012). And the Second Circuit has applied it in a case
involving neither violence nor harassment: In Doninger, the
court used it to assess the punishment of a student who urged
others to contact a school official to protest a concert’s post-
ponement. 527 F.3d at 44–45, 48–52. The Eighth Circuit has
likewise suggested that the standard governs all forms of off-
campus speech, not just violent threats and harassment. S.J.W.,
696 F.3d at 777.
Another group of circuits applies Tinker to off-campus
speech with a sufficient “nexus” to the school’s “pedagogical
interests.” Kowalski v. Berkeley Cty. Schs., 652 F.3d 565, 573
(4th Cir. 2011). Kowalski involved a student who created a
MySpace page harassing a fellow student. Id. at 567–68. In
assessing the student’s suspension, the Fourth Circuit empha-
sized that student-on-student harassment “can cause victims to
become depressed and anxious, to be afraid to go to school, and
to have thoughts of suicide.” Id. at 572 (citation omitted).
Concluding that schools “must be able to prevent and punish
harassment and bullying in order to provide a safe school en-
vironment,” id., the court held that the speech bore a “sufficient
28
nexus with the school” justifying Tinker’s application, id. at
577. The Ninth Circuit has also applied the nexus test in a case
involving off-campus sexual harassment. C.R., 835 F.3d at
1150–51.
Finally, some circuits have applied Tinker to off-campus
speech without articulating a governing test or standard. See,
e.g., Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379, 394 (5th
Cir. 2015) (en banc) (declining to “adopt a specific rule” but
applying Tinker to a student who “intentionally direct[ed] at
the school community [a] rap recording containing threats to,
and harassment and intimidation of, two teachers”); Wynar v.
Douglas Cty. Sch. Dist., 728 F.3d 1062, 1069 (9th Cir. 2013)
(declining to “divine and impose a global standard for . . . off-
campus speech” but holding that Tinker reaches off-campus
speech presenting “an identifiable threat of school violence”).
b. Issues with these approaches
We sympathize with our sister circuits, which have faced
the unenviable task of assessing students’ free speech rights
against the backdrop of “school officials’ need to provide a safe
school environment,” LaVine v. Blaine Sch. Dist., 257 F.3d
981, 983 (9th Cir. 2001), and find much to commend in their
thoughtful opinions. Ultimately, however, we find their ap-
proaches unsatisfying in three respects.
First, “bad facts make bad law,” United States v. Joseph,
730 F.3d 336, 337 (3d Cir. 2013), and 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. The Second Circuit provides a case in point. It is un-
derstandable that the court in Wisniewski, focusing on the
29
threat of violence bound up in the student’s speech, upheld the
school’s authority to discipline him. See 494 F.3d at 39–40.
As other courts have recognized, “we live in a time when
school violence is an unfortunate reality that educators must
confront on an all too frequent basis,” LaVine, 257 F.3d at 987,
and in doing so, they “must be vigilant” and “react to potential
threats before violence erupts,” Bell, 799 F.3d at 393. But in
Doninger, the Second Circuit reflexively applied Wisniewski’s
reasonable foreseeability test to a fact pattern of a very differ-
ent sort: a student’s protest of a school’s decision to postpone
an event. What began as a narrow accommodation of unusu-
ally strong interests on the school’s side, cf. Wynar, 728 F.3d
at 1069 (distinguishing “an identifiable threat of school vio-
lence” from “myriad” other fact patterns), became a broad rule
governing all off-campus expression. A similar dynamic took
place with the “nexus” test, in that specialized concerns related
to “harassment and bullying in the school environment,” Kow-
alski, 652 F.3d at 572, produced a rule making off-campus free
speech rights depend on the speech’s connection to a school’s
“pedagogical interests,” id. at 573.
Second, and as a result of this expansionary dynamic, our
sister circuits have adopted tests that sweep far too much
speech into the realm of schools’ authority. Start with reason-
able foreseeability. Technology has brought unprecedented in-
terconnectivity and access to diverse forms of speech. In the
past, it was merely a possibility, and often a remote one, that
the speech of a student who expressed herself in the public
square would “reach” the school. But today, when a student
speaks in the “modern public square” of the internet, Packing-
ham, 137 S. Ct. at 1737, it is highly possible that her speech
will be viewed by fellow students and accessible from school.
30
And in some situations, it is a virtual certainty: Depending on
the settings favored by that student’s “friends” or “followers,”
her message may automatically pop up on the face of class-
mates’ phones in the form of notifications from Instagram, Fa-
cebook, Twitter, Snapchat, or any number of other social plat-
forms. Implicit in the reasonable foreseeability test, therefore,
is the assumption that the internet and social media have ex-
panded Tinker’s schoolhouse gate to encompass the public
square. That assumption is not one we can accept, though, be-
cause it subverts the longstanding principle that heightened au-
thority over student speech is the exception rather than the rule.
And it contradicts the Supreme Court’s instruction, in cases
like Packingham and Reno, to apply legal precedent faithfully
even when confronted with new technologies.11
11
By way of example, imagine a student who, off campus
and over the weekend, writes a blog post identifying every
teacher he thinks is incompetent. Imagine that he then shares
the post on a social media platform where it is visible to many
fellow students. It is a near certainty that the post will “reach
campus,” Doninger, 527 F.3d at 48: Students are likely to chat
about it in the lunchroom, view it surreptitiously in class, or
even share it with school officials. But that type of downstream
“reach[ing]” the “campus,” id., is “different in kind” from a
student’s choice to “stand[] up during a lecture” and share sim-
ilar thoughts about the teacher’s incompetence. See Lee Gold-
man, Student Speech and the First Amendment: A Comprehen-
sive Approach, 63 Fla. L. Rev. 395, 407 n.92 (2011) (citation
omitted). If it is to remain a limited carveout from students’
general “free speech rights,” see J.S., 650 F.3d at 932, Tinker
must apply only to the latter. See also id. at 939 (Smith, J.,
31
The nexus test suffers from similar overbreadth. In holding
that schools have regulatory authority over any speech,
whether on or off campus, that “interfere[s] with the work and
discipline of the school,” Kowalski, 652 F.3d at 574, it col-
lapses Tinker’s scope of application and rule into one analytical
step. The result is tautological: Schools can regulate off-cam-
pus speech under Tinker when the speech would satisfy Tinker.
And the effect is to erase the dividing line between speech in
“the school context” and beyond it, J.S., 650 F.3d at 927, a line
which is vital to young people’s free speech rights. Worse, in
extending Tinker wherever there is a “nexus” to “pedagogical
interests,” Kowalski, 652 F.3d at 573, the test raises the specter
of officials’ asserting the power to regulate “any student speech
that interferes with [the] school’s educational mission,” a
power that “can easily be manipulated in dangerous ways.”
J.S., 650 F.3d at 927 (internal quotation marks omitted) (quot-
ing Morse, 551 U.S. at 423 (Alito, J., concurring)). Such an
expansion of schools’ regulatory power would have “ominous
implications” indeed. J.S., 650 F.3d at 939–40 (Smith, J., con-
curring) (exploring the consequences not only for students, but
also for adults, of extending Tinker to off-campus speech).
Third, other circuits’ approaches have failed to provide
clarity and predictability. This is true for those that have “de-
clined to adopt a rule,” e.g., Bell, 799 F.3d at 394, leaving “stu-
dents, teachers, and school administrators” without “clear
guidance,” Longoria, 942 F.3d at 265 (citation omitted). But
it is also true for those that have crafted a rule. In layering a
concurring) (discussing the hypothetical of a student who
writes an off-campus blog post taking a position that causes
fellow students to react on campus).
32
foreseeability requirement on top of Tinker, the Second and
Eighth Circuits have made it difficult for students speaking off
campus to predict when they enjoy full or limited free speech
rights. After all, a student can control how and where she
speaks but exercises little to no control over how her speech
may “come to the attention of the school authorities,” D.J.M.,
647 F.3d at 766 (quoting Wisniewski, 494 F.3d at 39). The
nexus test, too, affords little clarity, leaving students to wonder
what types of speech might implicate a school’s “pedagogical
interests,” Kowalski, 652 F.3d at 573. And in the First Amend-
ment context, courts must pursue ex ante clarity not for clar-
ity’s own sake, but to avoid chilling potential speech and to
give government officials notice of the constitutional bounda-
ries they may not cross.
In the end, although the courts to address this issue have
done so thoughtfully, we conclude that their approaches sweep
in too much speech and distort Tinker’s narrow exception into
a vast font of regulatory authority. We must forge our own
path.
c. Our approach
We hold today that Tinker does not apply to off-campus
speech—that is, speech that is outside school-owned, -oper-
ated, or -supervised channels and that is not reasonably inter-
preted as bearing the school’s imprimatur. In so holding, we
build on a solid foundation, for in his concurrence in J.S., now-
Chief Judge Smith, joined by four colleagues, embraced this
rule, explaining “that the First Amendment protects students
engaging in off-campus speech to the same extent it protects
speech by citizens in the community at large.” 650 F.3d at 936.
That rule is true to the spirit of Tinker, respects students’ rights,
33
and provides much-needed clarity to students and officials
alike.
From the outset, Tinker has been a narrow accommodation:
Student speech within the school context that would “materi-
ally and substantially interfere[] with the requirements of ap-
propriate discipline,” Tinker, 393 U.S. at 505 (citation omit-
ted), is stripped of the constitutional shield it enjoys “outside
[that] context,” Morse, 551 U.S. at 405. Tinker’s focus on dis-
ruption makes sense when a student stands in the school con-
text, amid the “captive audience” of his peers. Fraser, 478
U.S. at 684. But it makes little sense where the student stands
outside that context, given that any effect on the school envi-
ronment will depend on others’ choices and reactions.
Recent technological changes reinforce, not weaken, this
conclusion. Like all who have approached these issues, we are
“mindful of the challenges school administrators face,” includ-
ing the need to manage the school environment in the digital
age. Layshock, 650 F.3d at 222 (Jordan, J., concurring). We
are equally mindful, however, that new communicative tech-
nologies open new territories where regulators might seek to
suppress speech they consider inappropriate, uncouth, or pro-
vocative. And we cannot permit such efforts, no matter how
well intentioned, without sacrificing precious freedoms that the
First Amendment protects. The consensus in the analog era
was that controversial off-campus speech was not subject to
school regulation, see, e.g., Porter, 393 F.3d at 611–12, 615–
16; Thomas, 607 F.2d at 1050–52, and Reno and Packingham
34
require that we adhere to that principle even as the speech
moves online.12
Holding Tinker inapplicable to off-campus speech also of-
fers the distinct advantage of offering up-front clarity to stu-
dents and school officials. To enjoy the free speech rights to
which they are entitled, students must be able to determine
when they are subject to schools’ authority and when not. A
test based on the likelihood that speech will reach the school
environment—even leaving aside doubts about what it means
to “reach” the “school environment”—fails to provide that
clarity. The same is true for a test dependent on whether the
student’s speech has a sufficient “nexus” to unspecified peda-
gogical interests or would substantially disrupt the school
12
Several circuits have applied Tinker to speech that the
speaker brought into the campus environment. See, e.g.,
Boim v. Fulton Cty. Sch. Dist., 494 F.3d 978, 980–85 (11th Cir.
2007) (upholding a suspension of a student who, in class,
showed another student a violent story she had written at
home); Boucher v. Sch. Bd., 134 F.3d 821, 822, 827–29 (7th
Cir. 1998) (applying Tinker to a student newspaper written out-
side school but distributed “in bathrooms, in lockers and in the
cafeteria”). Our holding tracks those cases because they do not
involve “off-campus” speech at all. A student who brings a
printed story into campus and shows it to fellow students has
expressed herself inside the school context regardless whether
she wrote the story at home or in class. So too with a student
who opens his cellphone and shows a classmate a Facebook
post from the night before.
35
environment.13 But a test based on whether the speech occurs
in a context owned, controlled, or sponsored by the school is
much more easily applied and understood. That clarity bene-
fits students, who can better understand their rights, but it also
benefits school administrators, who can better understand the
limits of their authority and channel their regulatory energies
in productive but lawful ways.
Nothing in this opinion questions school officials’ “com-
prehensive authority” to regulate students when they act or
speak within the school environment. J.S., 650 F.3d at 925
(quoting Tinker, 393 U.S. at 507). Tinker applies, as it always
has, to any student who, on campus, shares or reacts to contro-
versial off-campus speech in a disruptive manner. That author-
ity is not insignificant, and it goes a long way toward address-
ing the concern, voiced by the School District and our concur-
ring colleague, that holding Tinker is limited to on-campus
speech will “sow . . . confusion” about what to do when a stu-
dent’s controversial off-campus speech “provoke[s] significant
disruptions within the school,” Concurr. 6. The answer is
straightforward: The school can punish any disruptive speech
or expressive conduct within the school context that meets
Tinker’s standards—no matter how that disruption was “pro-
voke[d].” It is the off-campus statement itself that is not sub-
ject to Tinker’s narrow recognition of school authority. But at
least in the physical world, that is nothing new, and no one,
including our colleague, has second-guessed that longstanding
13
Our divided precedent shows it is often not easy to pre-
dict whether speech will satisfy Tinker’s substantial disruption
standard. Compare, e.g., J.S., 650 F.3d at 928–31, with, e.g.,
id. at 943–50 (Fisher, J., dissenting).
36
principle or suggested that a student who advocated a contro-
versial position on a placard in a public park one Saturday
would be subject to school discipline. We simply hold today
that the “online” nature of that off-campus speech makes no
constitutional difference. See supra pages 11–16.
Nor are we confronted here with off-campus student speech
threatening violence or harassing particular students or teach-
ers. A future case in the line of Wisniewski, D.J.M., Kowalski,
or S.J.W., involving speech that is reasonably understood as a
threat of violence or harassment targeted at specific students or
teachers, would no doubt raise different concerns and require
consideration of other lines of First Amendment law. Cf.
Layshock, 650 F.3d at 209–10, 219 (holding that the student’s
parody MySpace page was protected speech even though the
school had deemed it “[h]arassment of a school administra-
tor”); J.S., 650 F.3d at 922, 933 (holding the same even though
the school’s principal had contacted the police to press harass-
ment charges). And while we disagree with the Tinker-based
theoretical approach that many of our sister circuits have taken
in cases involving students who threaten violence or harass
others, our opinion takes no position on schools’ bottom-line
power to discipline speech in that category. After all, student
speech falling into one of the well-recognized exceptions to the
First Amendment is not protected, cf. Doe v. Pulaski Cty. Spe-
cial Sch. Dist., 306 F.3d 616, 619, 621–27 (8th Cir. 2002) (en
banc) (upholding a school’s punishment of a student who wrote
a threatening letter under the “true threat” doctrine); speech
outside those exceptions may be regulated if the government
can satisfy the appropriate level of scrutiny, see, e.g., Williams-
Yulee v. Fla. Bar, 135 S. Ct. 1656, 1665–72 (2015); cf. Oral
Arg. Tr. 28 (exploring whether actions taken to prevent
37
student-on-student harassment could satisfy strict scrutiny);
and, perhaps most relevant, the Supreme Court has recognized
that a sufficiently weighty interest on the part of educators can
justify a narrow exception to students’ broader speech rights,
see Morse, 551 U.S. at 407–08. We hold only that off-campus
speech not implicating that class of interests lies beyond the
school’s regulatory authority.
True, our rule leaves some vulgar, crude, or offensive
speech beyond the power of schools to regulate. Yet we return
to Tinker and find in its pages wisdom and comfort:
[O]ur Constitution says we must take this risk, and our
history says that it is this sort of hazardous freedom—
this kind of openness—that is the basis of our national
strength and of the independence and vigor of Ameri-
cans who grow up and live in this relatively permissive,
often disputatious, society.
393 U.S. at 508–09 (internal citation omitted); see Barnette,
319 U.S. at 641 (encouraging courts to “apply the limitations
of the Constitution with no fear that freedom to be intellectu-
ally and spiritually diverse or even contrary will disintegrate
the social organization”).
Tinker’s careful delineation of schools’ authority, like these
principles, is no less vital even in today’s digital age to ensure
“adequate breathing room for valuable, robust speech.” J.S.,
650 F.3d at 941 (Smith, J., concurring). For these reasons, we
hold that Tinker does not apply to off-campus speech and thus
cannot justify the decision to punish B.L.
38
iii. None of the School District’s remaining
arguments justifies its punishment of B.L.
Moving beyond student speech,14 the School District ad-
vances a few arguments for why B.L.’s snap enjoyed no First
Amendment protection at all. Each is unsuccessful.
First, the School District contends that “vulgar language
[i]s ‘low-value speech’ that c[an] be restricted ‘to a greater ex-
tent than would otherwise be permissible.’” Appellant’s Br. 35
(quoting C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 211 (3d Cir.
2000) (Alito, J., dissenting)). But in doing, the District relies
on a dissenting opinion, and in any event its selective quotation
omits the prepositional phrase “[i]n the public schools” and our
citation of Fraser, see C.H., 226 F.3d at 211 (Alito, J., dissent-
ing), both of which make clear we were not making a broad
statement that non-obscene profanity enjoys reduced First
Amendment protection. Had we made such a statement, it
would have defied decades of settled law. See, e.g., Cohen v.
California, 403 U.S. 15, 20 (1971).
Second, the School District argues B.L.’s snap was unpro-
tected because it “expressed no opinion.” Appellant’s Br. 34–
35. In support, it quotes B.L., who, when asked whether she
was “trying to send a message,” replied she “was just mad
14
The School District does not suggest it had a right to reg-
ulate B.L.’s snap under Kuhlmeier or Morse. Nor could it: No
reasonable listener could have concluded that B.L.’s snap
amounted to “speech of the school itself,” Saxe, 240 F.3d at
213–14, or speech “promoting illegal drug use,” Morse,
551 U.S. at 403.
39
about everything.” Id. at 34 (quoting J.A. 65). This argument
borders on the frivolous. The “particular four-letter word”
B.L. used “is perhaps more distasteful than most others of its
genre,” but “one man’s vulgarity is another’s lyric,” Cohen,
403 U.S. at 25, and here, B.L. used it to vent her frustrations
with the cheerleading program. There is no doubt B.L.’s snap
was “imbued with elements of communication,” Troster v. Pa.
State Dep’t of Corr., 65 F.3d 1086, 1090 (3d Cir. 1995) (cita-
tion omitted), and thus deserving of First Amendment protec-
tion.
Finally, the School District argues that “profane speech is
not protected when aimed at minors.” Appellant’s Reply 2
(capitalization altered). Again, the District misses the mark.
Its argument relies on FCC v. Pacifica Foundation, 438 U.S.
726 (1978), a case involving the sui generis context of radio
broadcasting, which is “uniquely accessible to children,” id. at
749. But nowhere did Pacifica suggest that indecent speech
falls outside the First Amendment. Moreover, B.L.’s snap was
no more indecent, or targeted at an “intended audience [of] mi-
nors,” Appellant’s Reply 3, than the MySpace profiles we held
were entitled to First Amendment protection in J.S. and
Layshock.
For these reasons, we hold that B.L.’s snap was not subject
to regulation under Tinker or Fraser and instead enjoyed the
full scope of First Amendment protections.
B. B.L. Did Not Waive Her Free Speech Rights
The School District next argues that by agreeing to certain
school and team rules, B.L. waived her First Amendment right
to post the “fuck cheer” snap. We disagree.
40
To begin, we note that the District Court ruled that requir-
ing B.L. to waive her First Amendment rights as a condition of
joining the team violated the unconstitutional conditions doc-
trine, see Koontz v. St. Johns River Water Mgmt. Dist.,
570 U.S. 595, 604–06 (2013), and that both B.L. and an amicus
urge us to affirm that ruling. No doubt, for the government to
condition participation in a beneficial program on a waiver of
First Amendment rights raises serious constitutional concerns,
particularly where the government “seek[s] to leverage [bene-
fits] to regulate speech outside the contours of the program it-
self.” Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,
570 U.S. 205, 214–15 (2013); see also, e.g., FCC v. League of
Women Voters of Cal., 468 U.S. 364, 399–401 (1984). At the
same time, however, the line between constitutional and un-
constitutional conditions “is hardly clear,” Agency for Int’l
Dev., 570 U.S. at 215, and there are a wide range of extracur-
ricular activities and student roles that may make conditions on
speech more or less connected to the needs of the program.
Fortunately, we need not decide on which side of the line this
case falls because we conclude that B.L. did not waive her right
to the speech at issue here.
All rights, including free speech rights, can be waived.
Curtis Publ’g Co. v. Butts, 388 U.S. 130, 142–43 (1967). But
waivers “must be voluntary, knowing, . . . intelligent, . . . [and]
established by ‘clear’ and ‘compelling’ evidence,” Erie Tele-
comms., Inc. v. City of Erie, 853 F.2d 1084, 1094 (3d Cir. 1988)
(citation omitted), and courts must “indulge in every reasona-
ble presumption against waiver,” id. at 1095 (quoting John-
son v. Zerbst, 304 U.S. 458, 464 (1938)). Applying those
standards, we conclude that B.L.’s snap does not clearly “fall
within the scope,” United States v. Wilson, 707 F.3d 412, 414
41
(3d Cir. 2013) (citation omitted), of any of the rules on which
the School District relies.
We begin with the “Respect Rule” governing MAHS cheer-
leaders:
Please have respect for your school, coaches, teachers,
other cheerleaders and teams. Remember, you are rep-
resenting your school when at games, fundraisers, and
other events. Good sportsmanship will be enforced[;]
this includes foul language and inappropriate gestures.
J.A. 439. B.L.’s snap contained foul language and disrespected
her school and team. But the rule’s language suggests it applies
only “at games, fundraisers, and other events,” a suggestion
echoed by its invocation of “[g]ood sportsmanship.” Id. That
would not cover a weekend post to Snapchat unconnected with
any game or school event and before the cheerleading season
had even begun. And common sense supports this reading: It
is hard to believe a reasonable student would understand that
by agreeing to the Respect Rule, she was waiving all rights to
malign the school once safely off campus and in the world at
large. Indeed, one of the cheerleading coaches recognized that
the rule “doesn’t say anything about not being able to use foul
language or inappropriate gestures . . . away from school.”
J.A. 90. So this rule is of no help to the School District.
The “Negative Information Rule” is likewise inapplicable.
It states “[t]here will be no toleration of any negative infor-
mation regarding cheerleading, cheerleaders, or coaches
placed on the internet.” J.A. 439. Unlike the Respect Rule,
this rule by its terms reaches off-campus speech. But it reaches
only “information,” id., a term denoting matters of fact, see,
e.g., Information, Merriam Webster’s Collegiate Dictionary
42
(10th ed. 1997) (“the communication or reception of
knowledge or intelligence”; “knowledge obtained from inves-
tigation, study, or instruction”), not mere expressions of opin-
ion or emotion. We are hard pressed to find in the words “fuck
cheer” any discernable negative information about the cheer-
leading program. And although B.L.’s second snap contains
information about the varsity team’s acceptance of an incom-
ing freshman, nothing in the record suggests B.L.’s punishment
was based on that snap or the information it revealed. So this
rule, too, provides no basis for a finding of waiver.
The School District’s last recourse is the “Personal Conduct
Rule” in MAHS’s student handbook. It provides:
Participation on an athletic team or cheerleading squad
in the Mahanoy Area School District is a privilege and
the participants must earn the right to represent Maha-
noy Schools by conducting themselves in such a way
that the image of the Mahanoy School District would
not be tarnished in any manner. Any participant whose
conduct is judged to reflect a discredit upon him-
self/herself, the team, or the Mahanoy Schools, whether
or not such activity takes place during or outside school
hours during the sports season, will be subject to disci-
plinary action as determined by the coach, the athletic
director and/or the school principal.
J.A. 486. This rule does not lend itself to a finding of waiver
for two reasons. First, it applies only “during the sports sea-
son,” id., but B.L. posted her snap after the previous season had
ended and before practices for the next season had begun. Sec-
ond, the rule’s language gives few clear markers, applying
wherever a student’s behavior would “tarnish[]” the school’s
“image” in “any manner,” J.A. 486. That language is too
43
obscure, and too dependent on the whims of school officials,
to give rise to a knowing and voluntary waiver of B.L.’s rights
to speak as she did.
We therefore hold that B.L.’s snap was not covered by any
of the rules on which the School District relies and reject its
contention that B.L. waived her First Amendment rights.
* * *
The heart of the School District’s arguments is that it has a
duty to “inculcate the habits and manners of civility” in its stu-
dents. Appellant’s Br. 24 (citation omitted). 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 ci-
vility 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 adminis-
trators 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. Instead, by
enforcing the Constitution’s limits and upholding free speech
rights, we teach a deeper and more enduring version of respect
for civility and the “hazardous freedom” that is our national
treasure and “the basis of our national strength.” Tinker,
393 U.S. at 508–09.
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the District Court.
44
AMBRO, Circuit Judge, concurring in the judgment
I concur in the judgment affirming the District Court’s
grant of summary judgment to B.L. on the narrow ground that
our holdings in Layshock ex rel. Layshock v. Hermitage
School District, 650 F.3d 205 (3d Cir. 2011) (en banc), and
J.S. ex rel. Snyder v. Blue Mountain School District, 650 F.3d
915 (3d Cir. 2011) (en banc), mandate that outcome. I dissent
from the majority’s holding that, on the facts before us, the
holding in Tinker v. Des Moines Independent Community
School District, 393 U.S. 503 (1969)—that schools may
regulate student speech only if it “substantially disrupt[s] the
work and discipline of the school,” id. at 513—does not apply
to “off-campus” speech.
I dissent because it is a fundamental principle of
judicial restraint that courts should “neither anticipate a
question of constitutional law in advance of the necessity of
deciding it nor formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be
applied.” Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 450 (2008) (citing Ashwander v. Tenn.
Valley Auth., 297 U.S. 288, 346–47 (1936)) (quotation marks
omitted). Cf. Golden v. Zwickler, 394 U.S. 103, 108 (1969)
(“For adjudication of constitutional issues[,] concrete legal
issues[] presented in actual cases, not abstractions[,] are
requisite.”) (citation and quotation marks omitted).
In Tinker the Supreme Court held that public school
students do not shed their freedom of speech at the
“schoolhouse gate,” 393 U.S. at 506, and their expression
may not be suppressed unless, to repeat, school officials
reasonably conclude that it will “materially and substantially
disrupt the work and discipline of the school,” id. at 513. Our
Court in two en banc rulings expressly declined to hold that
Tinker does not apply to off-campus speech and applied
1
Tinker’s reasoning to those cases. See Layshock, 650 F.3d at
219 (“We need not now define the precise parameters of
when the arm of authority can reach beyond the schoolhouse
gate because . . . the district court found that [the student’s]
conduct did not disrupt the school.”); id. at 220 (Jordan, J.,
concurring) (stating that the majority did not decide whether
Tinker applies off campus and arguing that it does); J.S., 650
F.3d at 928–31, 933 (assuming Tinker governs and applying
it; “[n]either the Supreme Court nor this Court has ever
allowed schools to punish students for off-campus speech that
is not school-sponsored or at a school-sponsored event and
that caused no substantial disruption at school”). In both en
banc cases we held in favor of students who had been
suspended from school, and disciplined in other ways, for
creating websites, while not on school property and not using
school computers, mocking in appalling terms school
officials. We concluded that the schools could not “punish a
student for expressive conduct that originated outside of the
schoolhouse, did not disturb the school environment and was
not related to any school sponsored event.” Layshock, 650
F.3d at 207.
B.L. concedes we need not decide whether Tinker’s
test applies off campus. See, e.g., Appellee’s Br. 22 (“It is an
open question whether public schools can ever punish
students’ out-of-school speech—even if the Tinker standard is
satisfied. . . . The Court need not answer that question in this
case.”). Nonetheless, my colleagues in the majority hold that
“Tinker does not apply to off-campus speech—that is, speech
that is outside school-owned, -operated, or -supervised
channels and that is not reasonably interpreted as bearing the
school’s imprimatur[,]” Maj. Op. 33, and leave open the door
for schools to regulate off-campus student speech if it
threatens violence or harasses particular students or teachers,
id. at 37. However, the case before us does not involve
“school-supervised channels,” nor does it concern speech that
2
carried the school imprimatur, or was violent or threatening.
So it comes as no surprise that the majority does not give
guidance on how its new rule is to be applied. How do we
define school-supervised channels? Do these channels
include all forms of social media students use that schools
monitor? What type of speech constitutes “harassment” in
the school and social media context? Indeed there are no
facts before us to draw a clear and administrable line for this
new rule that Tinker does not apply to off-campus speech.
The case before us is straightforward—B.L.’s Snap is
not close to the line of student speech that schools may
regulate. B.L. was suspended from her school’s cheerleading
team as punishment for a Snap that said “fuck cheer,” which
she created on her own smartphone, on her own time on a
weekend, while off-campus, and not participating in any
school-sponsored activity. The Snap did not mention the
School District, the school, or any individuals, and did not
feature any team uniforms, school logos, or school property.
It caused complaints by a few other cheerleaders but no
“substantial disruptions,” and the coaches testified that they
did not expect the Snap would substantially disrupt any
activities in the future.1
1
My colleagues cite Lowery v. Euverard, 497 F.3d
584 (6th Cir. 2007), and Wildman ex rel. Wildman v.
Marshalltown School District, 249 F.3d 768 (8th Cir. 2001),
among other cases, to argue that B.L.’s case is actually a
nuanced one because it involves student athletics. However,
both Lowery, 497 F.3d at 593–94, and Wildman, 249 F.3d at
771, expressly applied Tinker’s “substantial disruption” test
and considered the effect of the students’ speech on team
morale in deciding whether it caused a disruption. In my
view, there is nothing controversial about the notion that
3
We have already rejected the School District’s
principal argument, specifically that Bethel School District
Number 403 v. Fraser, 478 U.S. 675 (1986), allows schools
to punish students for their offensive or profane speech when
the speech takes place off campus, outside of school
activities, and without the use of school resources. J.S., 650
F.3d at 920, 923, 925, 932–33 & n.12; Layshock, 650 F.3d at
209, 219. And none of the other narrow exceptions to Tinker
apply. B.L.’s Snap did not bear the imprimatur of the school
in the way a school-sponsored newspaper does, see
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 262
(1988), and she did not send her Snap from a school-
supervised or -sanctioned event nor to anyone at such an
event, see Morse v. Frederick, 551 U.S. 393, 396–97 (2007).
My colleagues correctly point out that the School
District’s remaining arguments also are unavailing. That
students have a reduced expectation of privacy under the
Fourth Amendment when they participate in extracurricular
athletics, see Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646,
657, 661–62, 665 (1995), has no bearing on our First
Amendment jurisprudence. We have never and decline now
to “graft an extracurricular distinction onto our [First
Amendment] case law.” Maj. Op. 18. I agree. Nor am I
aware of any other circuit court that has adopted such a
distinction.
courts may consider all the ways in which student speech may
be disruptive, including its effect on student activities such as
sports and sportsmanship. That is indeed what the District
Court did here; it considered all the alleged disruptive effects
of B.L.’s speech and concluded that
under Tinker, J.S., and Layshock, B.L.’s speech was not
disruptive. I agree with the District Court and would affirm
on the same ground.
4
Thus Tinker and its progeny, and our en banc decisions
in Layshock and J.S., dictate that the School District violated
B.L.’s First Amendment rights. That is all we had to say.
Instead, ours is the first Circuit Court to hold that
Tinker categorically does not apply to off-campus speech. A
few Circuits have flirted with such a holding and have
declined to apply Tinker to off-campus speech on a case-by-
case basis. See, e.g., Porter v. Ascension Par. Sch. Bd., 393
F.3d 608, 615, 619–20 (5th Cir. 2004) (declining to apply
Tinker where student at home drew a picture of school being
attacked, and that picture inadvertently ended up on campus,
because it was off-campus speech not directed at the school
and the student took no step to bring the speech on campus);
Thomas v. Bd. of Educ., 607 F.2d 1043, 1051 (2d Cir. 1979)
(holding that school violated students’ speech rights by
suspending them for publishing an underground lewd
newspaper that was printed and distributed off campus, even
if an occasional article was composed on campus, because the
newspaper was “off-campus expression”). However, those
same Circuit Courts have subsequently applied Tinker to off-
campus speech. See, e.g., Wisniewski v. Bd. of Educ. of
Weedsport Cent. Sch. Dist., 494 F.3d 34, 39–40 (2d Cir.
2007) (applying Tinker to uphold punishment of student who
sent instant messages to fellow students from home computer
during non-school hours depicting teacher being shot because
the student’s hostile off-campus speech posed a reasonably
foreseeable threat of disruption in school); Bell v. Itawamba
Cty. Sch. Bd., 799 F.3d 379, 396 (5th Cir. 2015) (en
banc), cert. denied, 136 S. Ct. 1166 (2016) (declining to
“adopt any rigid standard,” but applying Tinker to a student
who posted off site a song recording that threatened and
harassed two teachers); see also Doninger v. Niehoff, 527
F.3d 41, 50–53 (2d Cir. 2008) (applying Tinker to uphold
punishment of student whose blog demeaned school
administrators for cancelling a school concert, and clarifying
5
that Thomas v. Board of Education did not stand for the
proposition that off-campus speech may never be punished).
The bottom line is that Circuit Courts facing harder
and closer calls have stayed their hand and declined to rule
categorically that Tinker does not apply to off-campus speech.
Yet we do so here in a case bereft of substantial disruptions
within the school. I fear that our decision will sow further
confusion. For example, how does our holding apply to off-
campus racially tinged student speech? Can a school
discipline a student who posts off-campus Snaps reenacting
and mocking the victims of police violence where those
Snaps are not related to school, not taken or posted on
campus, do not overtly threaten violence and do not target
any specific individual, yet provoke significant disruptions
within the school? Hard to tell. We promulgate a new
constitutional rule based on facts that do not require us to
entertain hard questions such as these.
The craft of judging has a restraining principle: Do not
decide today what can be decided tomorrow, for tomorrow it
may not need to be decided. We twist that tenet today by a
wide-reaching holding for facts outside the question my
colleagues call. In J.S., despite a well-reasoned concurrence
urging that Tinker not apply to off-campus student speech,
J.S., 650 F.3d at 936–41 (Smith, J.), our en banc decisions in
both it and Layshock declined to go that far. Yet a panel does
so today with no more compelling context than either en banc
case. Our task is to balance tolerance for expressive conduct
with the need for order in our schools. The test in Tinker—
whether student speech reasonably “forecast[s] substantial
disruption of or material interference with school activities,”
393 U.S. at 514—is the law we applied en banc, and it no
doubt works here to rule in B.L.’s favor. Why go further until
it is needed?
6
Hence, while I join the judgment in today’s case, I
dissent from its holding.
7