Three Point Shot - Summer Edition 2021

• Published date: 10 August 2021
• Subject Matter: Media, Telecoms, IT, Entertainment, Sport, Social Media
• Law Firm: Proskauer Rose LLP
• Author: Mr Neil H. Abramson, Elise M. Bloom, Michael Cardozo, Scott Cooper, Rob Day, Tony Downes, Robert E. Freeman, Wayne D. Katz, Jason Krochak, Joseph M. Leccese, Adam Lupion, Jon H. Oram, Bernard M. Plum, Howard Z. Robbins, Bradley I. Ruskin and Bart Williams

Welcome to Three Point Shot, a newsletter brought to you by the Sports Law Group at Proskauer. Three Point Shot brings you the latest in sports law-related news and provides you with links to related materials. In this issue, we feature contributions from our talented group of summer associates. Thanks to Andrew K. Johnson, Benjamin G. Childress, and William S. Wyman for their hard work on these articles.

Your feedback, thoughts and comments on the content of any issue are encouraged and welcome. We hope you enjoy this and future issues.

Edited by Robert E. Freeman

Two, Four, Six, Eight, SCOTUS Sets the Record Straight...in Cheerleader Speech Case

Whether foreseeable or ironic, the impassioned words (or F-bombs) of a dejected junior varsity cheerleader recently brought a rather important First Amendment question before the Supreme Court. That is, whether a public school can lawfully remove a student from an extracurricular activity for profanity-laden social media posts transmitted to fellow students off school grounds on a Saturday. By a vote of 8 - 1, the Court upheld a Third Circuit majority ruling that the defendant Mahanoy Area High School's decision to suspend a then 14-year-old, plaintiff Brandi Levy ("Levy"), for an expletive-loaded rant on social media expressing her irritation with the school's cheerleading team violated her right to free expression. (Mahoney Area School Dist. v. B.L., No. 20-255, 594 U.S. ___ (June 23, 2021)).

In 2017, Levy came up short in try-outs for her Pennsylvania high school's varsity cheerleading team, landing on the JV team. Clearly unhappy with the decision, that weekend she turned to social media to gripe while in a local convenience store located off school grounds. However, as the Court noted, she didn't voice her frustration "with good grace"; instead, she logged into social media to make several posts, including one rather un-cheery image of her and a friend flipping the bird, with a caption that read: "F-- school, F-- softball, F-- cheer, F-- everything." Levy's posts on an ephemeral messaging app were designed to be viewed by her social media "friend" group and disappear after a short time. However, Levy's cathartic posts didn't quite disappear from memory, as one recipient took a screenshot of Levy's rants and surreptitiously shared it with coaches and school administration. The result was that Levy was suspended from the cheerleading squad for a year.

Not to be defeated, Levy and her parents filed suit against the school in Pennsylvania district court. With the First Amendment issues up in the air, Levy stuck the dismount. The District Court found that Levy's statements were constitutionally protected by the First Amendment and granted Levy's request for an injunction ordering the school to reinstate Levy to the cheerleading squad because her posts did not cause substantial disruption at the school, citing the landmark Tinker precedent that held that students do not "shed their constitutional rights to freedom of speech or expression," even "at the school house gate," and that a public high school could not constitutionally prohibit a peaceful student political demonstration consisting of "pure speech" on school property during the school day. Yet, in Tinker, the Supreme Court had stated that schools have a special interest in regulating speech that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."

On appeal, a Third Circuit panel affirmed the district court's decision but found Tinker not applicable to this case because Levy's speech took...