In Mahanoy Area School District v. B.L., 594 U.S. ___ (2021), the U.S. Supreme Court ruled in favor of a disgruntled high school cheerleader (B.L.) who didn’t make the varsity squad.
During one weekend at a convenience store, B.L., a public high school student, made Snapchat posts criticizing the school and the cheerleading team. One post showed her with middle fingers raised with the caption: “F— school, f— softball, f— cheer, f— everything.” To no surprise, the other cheerleaders and their moms caught wind of the post and became upset and went to the principal. In response, the school handed B.L. a one-year suspension from the cheer team.
The issue was whether the suspension violated B.L.’s First Amendment rights.
Schools have a special interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Here, the Court weighed B.L.’s interest of freedom of expression against the school’s interest of maintaining order for off-campus activity. Examples of off-campus activity that may call for school intervention include bullying, harassment, threats, or cheating on schoolwork.
However, B.L.’s Snapchat did not require school intervention. She did not identify the school in her post or make threats to anyone. She posted the Snapchat to an audience that only consisted of her private Snapchat friends. The post did not amount to substantial disorder because it only made the cheerleaders upset momentarily. Thus, the First Amendment protected B.L.’s speech, and the school’s suspension violated her First Amendment rights.
Public Employees and Free Speech
B.L. won the government interest argument because her post did not disrupt the school. A student’s gripes about the cheer team has little to no effect on the school’s operations. However, your “unpopular opinion” post can trigger more public outcry and cause a major disruption at work.
Public employees are protected by the First Amendment for speaking about matters of “public concern.” A matter is of “public concern” if it deals with political, social, or other community concerns. However, the First Amendment will not protect you if the government’s interest in preventing disruptions at work and maintaining public trust outweighs your interest in free speech. This is a similar balancing test in the above case.
To make matters worse for public employees, the First Amendment does not protect speech that is a part of your job duties. Don’t let this rule fool you into thinking that making a post after work is protected by the First Amendment. Your post may still be subject to the balancing test above.
Here’s a Scenario
You have a Trump sticker on your personal truck. This is a matter of public concern because Trump is a politician (among other things). A few Biden supporters complain to your employer. Your employer is worried that you will treat Biden supporters differently than Trump supporters and tells you to remove the sticker or be fired. You sue your employer claiming that your sticker is protected by the First Amendment. The Court will apply the balancing test and likely find that the sticker is protected because a Trump sticker doesn’t necessarily imply that you do not like Biden supporters. Moreover, there is no disruption because only a few Biden supporters complained.
Let’s change the facts a little. Along with your Trump sticker, you have a “Liberals Suck” sticker. Moreover, you live in an area that voted overwhelmingly for Biden. The First Amendment will probably no longer protect you because your stickers make it appear that you won’t treat Biden supporters equally. Given the community you are in, your stickers will likely harm public trust and disrupt work operations. Thus, you should follow your employer’s orders.