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.