Social media has become a pit for the unwary.  Pretty well every comment or ‘like’ you hand out has the potential to come back and bite you, either in your career or in the form of a headline.  Or in the case of a cheerleader, in a captaincy.

San Benito High School in Texas seems to have a strong and successful cheer team.  In early 2017 a young lady identified as “ML” was appointed as head varsity cheerleader.  A few weeks later, she was called to a meeting with the team coaches where she was stripped of her post and dropped from the team.  The coaches had found her Twitter feed, which they considered to have been “inappropriate”.  In particular, they were alarmed that she had liked posts created by others saying –

• “Imma show my mom all the snaps2 from girls partying for spring break so she can appreciate her lame ass daughter some more,”
• a tweet about braiding hair containing the acronym “lmao,”
• a tweet containing an image of a text-message conversation between a mother and a daughter, in which the word “fuck” is used twice
• “I love kissing lmao,”
• “i [sic] don’t fuck with people who lowkey try to compete with/ out do me,”
• “I fucking love texas [sic] man, it’s so beautiful and just overall great! Why would anyone want to leave Texas[?],”
• “I love her [third-party Twitter user] I FUCKING LOVE YOU SO MUCH AND YOU DONT [sic] EVEN KNOW IT LIKE BITCH I HOPE YOU DO GREAT SHIT IN LIFE I BELIEVE IN YOU,”
• a tweet from a Twitter account entitled “Horny Facts™,” which states, “bitch don’t touch my . . .”4

In addition, she had retweeted a post from “Bitch Code” and replied in the affirmative to the question “Did pope split you in half??”

The plaintiff, by her mother, brought proceedings alleging a violation of her free speech rights.  Statute 42 USC §1983 relevantly states that –

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects … any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ….

The claim was dismissed at first instance on the grounds that the defendants were entitled to a qualified immunity.  The plaintiff appealed to the 5th US Circuit Court of Appeals.

The Court noted that a defendant will be entitled to qualified immunity where their action “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”.  Immunity will be made out where there has been insufficient case law to warn a defendant that their acts violate the Bill of Rights.

The Court then proceeded to review the available case law on the free-speech rights of school pupils.  It concluded that at the time of ML’s dismissal, the case law on out-of-school speech had not established clear boundaries.  The Court took the opportunity to sum up the available case law in the hope of offering guidance to school administrators –

First, nothing in our precedent allows a school to discipline nonthreatening off-campus speech simply because an administrator considers it “offensive, harassing, or disruptive.” …. Second, it is “indisputable” that non-threatening student expression is entitled to First Amendment protection, even though the extent of that protection may be “diminished” if the speech is “composed by a student on-campus, or purposefully brought onto a school campus.” …. And finally, as a general rule, speech that the speaker does not intend to reach the school community remains outside the reach of school officials. ….  Because a school’s authority to discipline student speech derives from the unique needs and goals of the school setting, a student must direct her speech towards the school community in order to trigger schoolbased discipline.

The court declined to say whether the case at hand actually had breached these principles.  It concluded that “there was no clearly-established law that placed M.L.’s rights beyond debate at the time of” her dismissal.  As such, the claim of immunity was made out.  The appeal was dismissed.

Longoria v San Benito Independent Consolidated School District (US Ct of App. 5th Cir., King, Higginson and Duncan JJ, 4 November 2019, unreported)