SCOTUS Says Cheerleader’s Snapchat F-Bomb Protected by 1st Amendment

Another narrowly-crafted but overwhelming opinion from the Supreme Court.

NPR‘s Nina Totenberg (“Supreme Court Rules Cheerleader’s F-Bombs Are Protected By The 1st Amendment“):

The U.S. Supreme Court sided with students on Wednesday, ruling that a former cheerleader’s online F-bombs about her school is protected speech under the First Amendment.

By an 8-1 vote, the court declared that school administrators do have the power to punish student speech that occurs online or off campus if it genuinely disrupts classroom study. But the justices concluded that a few swear words posted online from off campus, as in this case, did not rise to the definition of disruptive.

“While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.’s interest in free expression in this case,” Justice Stephen Breyer wrote for the court’s majority.

At issue in the case was a series of F-bombs issued in 2017 on Snapchat by Brandi Levy, then a 14-year-old high school cheerleader who failed to win a promotion from the junior varsity to the varsity cheerleading term at her Pennsylvania school.

“I was really upset and frustrated at everything,” she said in an interview with NPR in April. So she posted a photo of herself and a friend flipping the bird to the camera, along with a message that said, “F* the school … F* cheer, F*** everything.”

Suspended from the team for what was considered disruptive behavior, Brandi and her parents went to court. They argued that the school had no right to punish her for off-campus speech, whether it was posted online while away from school, as in this case, or spoken out loud at a Starbucks across the street from school.

A federal appeals court agreed with her, declaring that school officials have no authority to punish students for speech that occurs in places unconnected to the campus.

The decision marked the first time that an appeals court issued such a broad interpretation of the Supreme Court’s landmark student speech decision more then a half century ago. Back then, in a case involving students suspended for wearing black armbands to school to protest the Vietnam War, the court ruled that students do have free speech rights under the Constitution, as long as the speech is not disruptive to the school.

Although Brandi Levy is now in college, the school board in Mahanoy, Pa., appealed to the Supreme Court, contending that disruption can come from outside the campus but still have serious effects on campus. It pointed to laws in 47 states that require schools to enforce anti-bullying and anti-harassment policies.

The high court, however, focused on the facts in Levy’s case, concluding that while her posts were less than admirable, they did not meet the test of being disruptive.

“We 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,” Breyer wrote. “The school’s regulatory interests remain significant in some off-campus circumstances.”

The lone dissenter, perhaps not surprisingly, was Clarence Thomas:

In a dissent, Justice Clarence Thomas wrote that the school was right to suspend Levy because students like her “who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs.”

Adam Liptak of NYT (“Supreme Court Rules for Cheerleader Punished for Vulgar Snapchat Message“) adds:

“The opinion reaffirms that schools’ authority over the lives of students is not boundless,” said Justin Driver, a law professor at Yale and the author of “The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind.”

“At the same time,” he said, “the decision is intensely, almost painfully narrow, and for that reason it offers little in the way of clarity to students, educators or lower court judges.”

As well as this not insignificant bit of context:

Though Snapchat messages are meant to vanish not long after they are sent, another student took a screenshot and showed it to her mother, a coach. The school suspended Ms. Levy from junior varsity cheerleading for a year, saying the punishment was needed to “avoid chaos” and maintain a “teamlike environment.”

At SCOTUSBlog, Amy Howe (“Court rules for high school cheerleader in First Amendment dispute over Snapchat profanity“) observes:

The school may have a substantial interest in regulating, Breyer suggested, a variety of different kinds of off-campus conduct – for example, severe bullying, threats aimed at teachers or students, participation in online school activities or hacking into school computers.

On the other hand, Breyer observed, there are three features of off-campus speech that will make it less likely that schools will have an interest in regulating it. First, a student’s off-campus speech will generally be the responsibility of that student’s parents. Second, any regulation of off-campus speech would cover virtually everything that a student says or does outside of school. And third, the school has an interest in protecting unpopular speech and ideas by its students. Breyer explained that the court left “for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference” in determining whether speech can be regulated.

But even if schools can in some circumstances regulate students’ off-campus speech, Breyer continued, the decision to suspend Levy for her snap still violated the First Amendment. If she had been an adult, Levy’s speech would normally be protected by the First Amendment, Breyer reasoned. Moreover, she created the snap off school grounds on a weekend, and there is no evidence that it caused the kind of substantial disruption that would justify her suspension. Breyer acknowledged that some people might regard the substance of Levy’s snap as so trivial that it is not the kind of speech worthy of the First Amendment’s protection. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary,” Breyer concluded.

When I wrote about the case last December (“Can Schools Punish Students for Off-Campus Speech?“) I was decidedly unsure where the Court would come down and not all that sure where they should come down:

While I have complicated views of schools being in the business of teaching values and otherwise taking on parental roles, I understand the need to maintain decorum and discipline in the classroom. But fully endorse Driver’s argument that students ought to be able to speak freely, including on social media, while on their own time.

But, of course, that doesn’t mean that said speech is free of consequences. If she’s publicly spewing vulgar epithets at her coach, it’s not completely unreasonable for the coach to suspend her from the team.

I can’t imagine anyone coming to the defense of a student who used racial or sexist or anti-LGBTQ messaging against school authority figures or fellow students on their social media platforms. Indeed, most would argue that their presence creates a hostile or unsafe environment.

Where one draws that line—would pro-Trump tweets or Instagram posts qualify?—is incredibly problematic. But few would argue that there is no line.

[…]

I can’t imagine the Supreme Court saying schools have no interest in protecting students from actual threats and bullying conduct, which are clearly not protected speech. True, law enforcement could take on those cases rather than the schools. But in the era of “defund the police,” do we really want to get the cops involved in settling social media disputes between teenagers?

I think Breyer’s narrow ruling balanced these concerns pretty well, even if I’m not sure he got it right. That is, I agree with him that the school has interests in off-campus conduct that impacts the on-campus environment and trust his judgment that relatively little actual disruption was caused by Levi’s remarks. And, if she were just a random student being suspended from class for venting on Snapchat, I would absolutely agree that the school overstepped. But coaches of team sports have always been accorded especial deference in maintain what the military calls “good order and discipline.” If the coach believed Levy’s rant undermined team cohesion, she deserves some deference in the matter.

As a technical matter, I’m also a bit surprised that the Supremes ruled at all given that the case has long since been moot, given that Levy can’t well be restored to the high school cheerleading squad now that she’s in college.

FILED UNDER: First Amendment, Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Stormy Dragon says:

    If you as an adult were being disruptive at a highschool basketball game, they’d be well within their authority to eject you. So does it follow the schools have a right to sanction Outside the Beltway if they decide one of your posts is disruptive?

    If we recognize that the school’s legitimate on-campus authority doesn’t extend to adults off-campus, why would it extend to students off-campus?

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  2. OzarkHillbilly says:

    Love the cartoon, James.

    As far as the speech here, schools, teachers, coaches… All would do well with having an F bomb dropped on them here or there. Sometimes they forget that students are people too.

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  3. As a technical matter, I’m also a bit surprised that the Supremes ruled at all given that the case has long since been moot, given that Levy can’t well be restored to the high school cheerleading squad now that she’s in college.

    Especially since they seemed to not be interested in cases about executive power on the proviso that once Trump was out of office rulings on his behavior were moot.

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  4. @OzarkHillbilly:

    coaches

    It is my personal observation that coaches often drop such bombs themselves…

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  5. Stormy Dragon says:

    Best summary of the case I saw:

    SCOTUS: we rule for student free speech but not in a way that effectively stops censorship
    Alito: I hate free speech and therefore will only concur resentfully
    Thomas: beat all children with sticks— DivineSpecialAppearanceHat (@Popehat) June 23, 2021

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  6. Michael Reynolds says:

    I’ve told this story before, but when my daughter was a High School freshman I was in car line to pick her up, and saw that she was in a heated debate with a school official. The Authority Figure had chided her for using the F word.* But she was prepared – over-prepared – and cited US law, California law and the student manual in support of her rights, and the guy not only backed off, he apologized. This was on school property. I keep trying to push her toward law school.

    * It’s fuck.

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  7. Mister Bluster says:

    @Michael Reynolds:..* It’s fuck.

    As I have said before.
    It starts with f and ends in uck and it’s not fire truck.

    (or Friar Tuck for that matter)

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  8. JKB says:

    And across the street, they’ve gotten their first scalp for the January 6 incursion. A grandma has pleaded guilty for parading in the Capitol. She got more than the DOJ has sought for the attempted burning of a federal courthouse or the intentional blinding of federal officers protecting that courthouse.

    “Morgan-Lloyd was charged with a single misdemeanor of parading, demonstrating or picketing in a Capitol building. She entered a plea deal in exchange of three years of probation, 40 hours of community service and a $500 fine. A federal judge will declare her sentence Wednesday.”

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  9. Scott says:

    Schools have some authority to act parentally called “in loco parentis”. However, to grade the school’s (and coach’s actions), I would say they failed as “parents”. This should never have gone anywhere. One, the instigating action was not the student who dropped the f-bomb but the one that took the took the screenshot. Two, a smart parent would not create a bigger problem than is necessary.

    That the school district would pursue this (supported by various other actors) says more about the district than they realize.

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  10. Gustopher says:

    @JKB: We have open threads for a reason.

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  11. MarkedMan says:

    For me, this is a really tough area. If a student on campus says, “I wish those [insert ethnic or religious group here] weren’t on the squad. They are filthy animals”, then she can be kicked off the squad. But if she posts it on social media, she can only be kicked off if she typed it on school grounds?

    If she says it aloud on school grounds, she can be kicked off. What if she steps one foot off school grounds and then shouts it? Does she get away with it? If not, if we say something like, “But her voice was on school grounds”, then couldn’t we say posting something to social media is like shouting it all over, including onto school grounds? But what if she was in a “Friends Only” mode when she posted it?

    These are hard, hard questions and any decision can have unexpected add-on effects. I wish we had some younger members of the court to deal with them. Right now the youngest is Barrett at 49 and she was raised in a hyper-conservative religious cult.

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  12. HarvardLaw92 says:

    I agree with the ruling (even as it leaves the line still a bit vague), but this particular incident has always struck me as being more about an offended coach exceeding the legitimate bounds of her authority than about any legitimate threat of more general disorder.

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  13. Stormy Dragon says:

    @MarkedMan:

    Counterpoint: should Florida schools be allowed to punish their students for tweeting about CRT on the weekends?

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  14. OzarkHillbilly says:

    @Steven L. Taylor: They sure did when I was in school. Of course, what was sauce for the gander, was not for the goose.

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  15. DrDaveT says:

    In a dissent, Justice Clarence Thomas wrote that the school was right to suspend Levy because students like her “who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs.”

    WTF?

    Has CT reached “yelling at clouds” stage? Is he wearing an onion on his belt?

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  16. Kathy says:

    I wonder how the incident did not end with a visit to the principal’s office and a warning.

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  17. Teve says:

    @MarkedMan: they didn’t rule that she was free to say anything she liked if she was off school grounds, they ruled that the school overreacted because this wasn’t likely to lead to any kind of significant disruption at school. If she had been down at the mall screeching racial slurs or something there would’ve been a different outcome.

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  18. James Joyner says:

    @Stormy Dragon: What @Teve said. Had she directed the N-word rather than the F-word at her coaches or teammates, it would have been a slam dunk case the other way.

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  19. Just nutha ignint cracker says:

    @HarvardLaw92: I take it, then, that you are more on the side of “stepped on the toes of the coach” than “disrupted the order and discipline of the squad?” (Although, I’ll certainly admit that it disrupted someone–I’m assuming coach’s daughter–enough to take a picture of the post so she could tattle.)

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  20. Kurtz says:

    @DrDaveT:

    Onion on the belt is the style at this time.

    Pretty sure C. Thomas (not Howell) learned to yell at clouds specifically to get his seat at the table.

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  21. Michael Reynolds says:

    @JKB:
    Nonsense, you know she was really an FBI/Antifa/BLM plant. Come on, you’re not falling for that mainstream media B.S. are you? Does Orange Jesus know you’re concerned about the welfare of a Deep State foe?

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  22. HarvardLaw92 says:

    @Just nutha ignint cracker:

    Very much so. This situation has always felt to me like a coach inappropriately using the system to punish someone who personally offended her. It never should have gone anywhere near as far as it did.

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  23. de stijl says:

    Awesome comic up-top.

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