Washington — The Supreme Court on Wednesday sided with a Pennsylvania cheerleader punished for a vulgar message shared on Snapchat, with the justices ruling the school violated the student’s First Amendment rights when it disciplined her for the off-campus rant.
The high court ruled 8-1 in favor of the cheerleader, Brandi Levy, with Justice Stephen Breyer writing the majority opinion. Justice Clarence Thomas dissented.
While the Supreme Court found Levy’s school went too far when it punished her for her social media posts, which are entitled to First Amendment protections, Breyer wrote there is some student speech that takes place off campus that schools can regulate, such as bullying or harassment and threats aimed at teachers or other students.
“[W]e do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus,” he wrote. “The school’s regulatory interests remain significant in some off-campus circumstances.”
The dispute centered around a message Levy posted to Snapchat on a Saturday in 2017 after learning she didn’t make her school’s varsity cheerleading team as a rising sophomore. In an act of frustration, Levy, then 14 and a freshman in the Mahanoy Area School District, shared with her 250 followers a self-deleting Snapchat of her and a friend raising their middle fingers, captioned with the uncensored message, “f**k school f**k softball f**k cheer f**k everything.”
Posts to Snapchat automatically delete after 24 hours, but one of Levy’s friends, a fellow cheerleader, took a screenshot of her photo and accompanying caption. The image circulated among the cheerleading squad, eventually reaching one of the cheerleading coaches. The coaches decided Levy violated team and school rules governing student conduct, and she was suspended from the cheerleading squad for her sophomore year.
Levy’s parents unsuccessfully appealed to school and district officials to reconsider the punishment, and then filed a federal lawsuit arguing the discipline for her off-campus speech violated their daughter’s free speech rights. A federal district court in Pennsylvania sided with Levy and her parents, and ordered her reinstated on the team. The 3rd U.S. Circuit Court of Appeals agreed and ruled the Supreme Court’s landmark ruling in Tinker v. Des Moines doesn’t apply to off-campus speech, limiting the disciplinary reach of school administrators.
In Tinker, from 1969, the justices said students do not “shed their constitutional rights to freedom of speech at the schoolhouse gate,” but schools can discipline students for speech that “materially and substantially” interferes with school activities.
The Supreme Court said Wednesday while it does not agree with the 3rd Circuit’s reasoning, it does agree the school’s disciplinary action violated the First Amendment. The justices also stopped short of setting a “broad, highly general First Amendment rule” defining what counts as off-campus speech.
Focusing on Levy’s posts, specifically, Breyer wrote that if she were an adult, the First Amendment would “provide strong protection” of her speech. Additionally, the court said it could find “no evidence” that her Snapchat posts caused substantial disruption to school activities.
“It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary,” Breyer said.
The question of whether schools can punish students for speech that takes place off campus has taken on heightened importance in the digital age and during the coronavirus pandemic, when many students participated in online learning, blurring the campus boundaries.
Levy’s case was the most significant involving student speech to land before the Supreme court in 50 years, and during oral arguments in April, the justices wrestled with how to protect the free speech rights of public school students while also ensuring school officials are not powerless to address bullying or harassment that originates off campus.
The dispute brought together a diverse coalition of groups backing Levy and the ACLU, including conservative legal organizations, religious liberty groups and nine Republican attorney general, who argued that under-policing campus speech is “undoubtedly the better rule.”
The Biden administration and anti-bullying groups, meanwhile, sided with the Mahanoy Area School District.