What cheerleaders say on Twitter

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.

San Benito HS
Image from here

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)

Invective from the Past

Australian readers will be well aware of the legal brouhaha surrounding the social media use of rugby player Israel Folau.  The most neutral way of putting the matter is to say that Mr Folau made comments about gay people which were considered gravely offensive and resulted in his contract as a professional athlete being terminated.  The post in question was as follows –


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Those that are living in Sin will end up in Hell unless you repent. Jesus Christ loves you and is giving you time to turn away from your sin and come to him. _______________ Now the works of the flesh are manifest, which are these , adultery, fornication, uncleanness, lasciviousness, idolatry, witchcraft, hatred, variance, emulations, wrath, strife, seditions, heresies, envyings, murders, drunkenness, revelings, and such like: of the which I tell you before, as I have also told you in time past, that they which do such things shall not inherit the kingdom of God. Galatians 5:19‭-‬21 KJV _______________ Then Peter said unto them, Repent, and be baptized every one of you in the name of Jesus Christ for the remission of sins, and ye shall receive the gift of the Holy Ghost. Acts 2:38 KJV _______________ And the times of this ignorance God winked at; but now commandeth all men every where to repent: Acts 17:30 KJV _______________

A post shared by Israel Folau (@izzyfolau) on

As it happened, about the time this particular storm was brewing, I happened to notice a case in my home jurisdiction’s law reports that was worth considering on the matter of what speech is impermissible

The Case

Robert Brickell was a pretty angry man.  He was described as a “mission worker” and on 7 April 1940 he was a man on a mission.  He had fitted a microphone and loudspeakers to his car and gave a speech in Barkly Street, Ararat, which drew quite a crowd.  He referred to the mayor’s decision to refuse permission to use the town hall for a religious meeting, and then to the mayor’s own religion. Warming to his theme he said –

The organisation responsible is that whose blighting influence has spread over most of the countries of Europe and whose slimy hands, dripping with blood unrighteously shed, is subtly but effectively grabbing control of this country, namely, the Roman Catholic Hierarchy of Authority which operates from the Vatican city, Rome, and carries on the biggest racket ever perpetrated upon mankind, blasphemously attaching the name of God and Christ to their racket.

The crowd became agitated and some people said “stop him or we will”.  Police constable Eric Annett intervened to prevent a riot.  Brickell was charged with breaching §24 of the Police Offences Act 1928, which provided –

Every person who … uses any … insulting words … in … any public place … whereby a breach of the peace is likely to be occasioned shall be liable to a penalty of not more than Ten pounds; and in default of immediate payment shall be committed to prison for a term of not more than three months unless such penalty is sooner paid.

The matter was dealt with in the Court of Petty Sessions.  Brickell was convicted and fined £2 (about $170.00 in today’s value).  He applied to have the conviction reviewed: Brickell v Annett (1940) The Argus, 9 May 1940 at 7.

Town Hall
Ararat Town Hall (Image from here)

Barrister DM Little, instructed by the firm of Nevett, Nevett & Glenn (now Nevett Ford Lawyers) sought to overturn the conviction on the basis that the words used, while offensive, were not insulting, unless there was insult to the personal feelings of the hearers.  Insulting, he said, was confined to attacks on a person’s moral character only and not (say) physical appearance.

O’Bryan J took a different view.  He considered that the word “insulting” had a wide meaning and covered scornful abuse of a person or the giving of a personal indignity or affront.

A Catholic would, I have no doubt, hearing the words in question, regard them as an abusive attack upon his personal religious beliefs and practices and would thereby suffer a personal affront. To say to a man that his religion is a sham, that it is a mere dishonest business and trickery, is to offer him a personal indignity as direct as possible.

It followed that the conviction stood.  The section in question, incidentally, lives on in §17 of the Summary Offences Act 1966.

It seems to me there are lessons for both sides in the ruling  in Annett.  On one hand, critics of what one might call public Christianity should not claim a right to say whatever invective comes into their minds –

On the other, free speech fans should remember that there has never been an open season to pick fights.

Annett v Brickell [1940] VLR 312