In a major victory for the First Amendment, the U.S. Supreme Court ruled 8-1 in favor of a high school cheerleader in Pennsylvania who was booted from her squad over a profane Snapchat post she made while not on school grounds.
While the vast majority of justices sided with the cheerleader, Brandi Levy, against the school, court watchers point out that the ruling was very narrowly defined, noting that “schools do maintain some interest in regulating students’ off-campus speech,” Fox News reported.
“[T]he school argues that it was trying to prevent disruption, if not within the classroom, then within the bounds of a school-sponsored extracurricular activity,” wrote Justice Stephen Breyer for the majority. Justice Clarence Thomas was the only dissent.
“But we can find no evidence in the record of the sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify the school’s action,” Breyer continued.
Levy, then a sophomore who graduated high school in 2020, was kicked off the junior varsity cheerleading squad for writing while off-campus, “F**k school f**k softball f**k cheer f**k everything,” then posting it to the social media platform.
In subsequent interviews, she said she did not send the Snap to anyone but her friends, and certainly not to any school faculty or staff. But she was kicked off the squad after someone showed her message to the cheerleading coach.
School district officials and their supporters argued that the school should have the authority to punish students for making remarks off-campus, to include posts like the one from Levy, because it is an important tool to regulate and prevent cyber-bullying.
However, the majority of justices saw it more as a First Amendment issue than anything else. In his opinion, Breyer wrote that limits to off-campus speech should be minimal because “when coupled with regulations of on-campus speech,” comments made off-campus “include all the speech a student utters during the full 24-hour day.”
“It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein,” Breyer wrote. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
While the majority concurred with a lower appeals court, their ruling was not nearly as broad. The lower court said that the school could not in any way punish Levy for “engaging in a form of pure speech” because it did not occur while she was on school grounds.
“The school’s regulatory interests remain significant in some off-campus circumstances,” Bryer noted further. “These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”
Still, the majority found that Levy’s speech was not disruptive therefore not subject to school scrutiny.
In his dissent, Thomas argued that the majority of his colleagues did not examine closely enough previous cases involving student speech off of school grounds that nevertheless could affect what happens off-campus as well.
“A school can regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the school, its faculty or students, or its programs,” Thomas noted, hitting on a thorny speech issue that has plagued the high court and lower federal courts in the technology age.
Though Levy posted her remarks off-campus, they could be ‘heard’ on-campus and therefore, based on previous cases, subject to school discipline.
“Unlike Tinker, which involved a school’s authority under a straightforward fact pattern, this case involves speech made in one location but capable of being received in countless others—an issue that has been aggravated exponentially by recent technological advances,” Thomas wrote.