The U.S. Supreme Court on Wednesday tentatively extended the free-speech rights of students to some off-campus social media posts, ruling in favor of a former Pennsylvania high school cheerleader who challenged her suspension from the team for posting a foulmouthed message to Snapchat.
In an 8-1 decision, the justices concluded that the Mahanoy Area School District in Schuylkill County violated Brandi Levy’s First Amendment rights, after the then-14-year-old, in a fit of pique, posted “F— school, f— softball, f— cheer, f— everything” after learning she had been cut from the varsity team.
But while school districts and free-speech advocates had watched Levy’s case closely, hoping the court would take the opportunity to offer clear guidelines for administrators struggling to define the limits of their ability to police off-campus speech in the digital age, it mostly left them without the answers they were seeking.
Instead, Justice Stephen G. Breyer, writing for the majority, offered a series of hypothetical instances in which schools might still have a legal interest in punishing students for disruptive speech no matter where it occurred — such as instances of bullying, harassment, or threats of violence.
But, he added, “particularly, given the advent of computer-based learning, we hesitate to determine precisely which of many school-related, off-campus activities belong on such a list. Neither do we now know how such a list might vary, depending on a student’s age, the nature of the school’s off-campus activity, or the impact of the school itself.”
Justice Samuel A. Alito Jr. did his best to offer some guidance in a concurring opinion.
“If today’s decision teaches us any lesson,” he wrote, “it must be that the regulation of many types of off-premises student speech raises First Amendment concerns and school officials should proceed cautiously before venturing into this territory.”
Justice Clarence Thomas dissented, saying that he would have upheld Levy’s suspension and that her post was clearly intended to degrade the school’s cheerleading program and subvert the authority of the team’s coach.
When Levy learned in 2017 that she hadn’t made the varsity team, lofty debates over the constitutional rights of students weren’t exactly at the forefront of her mind.
“I was frustrated, I was 14 years old, and I expressed my frustration the way teenagers do today,” she said Wednesday. “Young people need to have the ability to express themselves without worrying about being punished when they get back to school.”
Levy posted the offending message on a Saturday outside of the cheerleading season, accompanied by a selfie with her middle finger extended. It went out to her network of about 250 followers. Levy thought it would be deleted within 24 hours, like all posts on the social media app.
But one person took a screenshot and passed it to another, who passed it to another, and the post eventually found its way to one of her coaches at Mahanoy Area High School.
The team based its decision to suspend Levy for a year on rules it said she agreed to follow when she signed up, including avoiding “foul language and inappropriate gestures” and a strict policy against “any negative information regarding cheerleading, cheerleaders or coaches placed on the internet.”
Levy’s parents, Larry and Betty Lou, challenged the constitutionality of those requirements in appeals to various athletic and school administrators and, eventually, a federal court with the backing of the American Civil Liberties Union.
“It might be tempting to dismiss [Levy]’s words as unworthy of the robust First Amendment protections discussed herein,” Breyer wrote Wednesday. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
The last time the Supreme Court took on such a wide-ranging student speech question was almost a half-century ago, in a case involving an Iowa school district’s ban on allowing students to wear black armbands to protest America’s involvement in the Vietnam War.
That case led the justices to conclude that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But they also empowered schools to punish disruptive speech, at least when it occurred on campus.
That standard has been used by thousands of school districts across the country in the years since.
But in an era when social media posts made off campus can spread rapidly among students and remote learning during the pandemic has blurred understandings of what exactly counts as a school campus anymore, administrators have increasingly been called upon to respond to scenarios never envisioned by that 1969 case.
The school district, education groups, anti-bullying organizations, and even the Biden administration weighed in on Levy’s case, arguing that cyberbullying, harassment, and political threats occur both in and out of school, and that districts must be empowered to respond.
But the Philadelphia-based U.S. Court of Appeals for the Third Circuit disagreed, ruling that the deference past case law gives schools to regulate disruptive speech on campus does not extend once students leave at the end of the school day.
In its ruling Wednesday, the Supreme Court was not willing to go quite that far. It concluded instead that there are instances in which off-campus speech might legitimately disrupt a school environment, but the Mahanoy District had not shown that Levy’s remarks — no matter how inelegant — had done so.
ACLU legal director David Cole celebrated the outcome as “a huge victory” for millions of students who attend public school — a victory so big that his organization began selling T-shirts within hours, emblazoned with the now-infamous salty sentence Levy has forever introduced into the annals of American jurisprudence.
Read the opinion: