The Supreme court on Wednesday considered the free speech implications its ruling could have in a high school cheerleader’s First Amendment case.
At issue is a clash between Brandi Levy, a foul-mouthed cheerleader, and her Pennsylvania school district. The case arose in 2017 when Levy did not make her varsity cheer squad and responded with a Snapchat story, posted on a Saturday and off campus, in which she said, “F— school. F— softball. F— cheer. F— everything.” When faculty members saw the post, the school banned her from the sport for a year.
FOUL-MOUTHED CHEERLEADER TO MAKE FIRST AMENDMENT ARGUMENT AT SUPREME COURT
Levy and her parents teamed up with the American Civil Liberties Union to take the case to the court, arguing that the school had broadly overreached into her personal life. The school responded that, under a 1969 Supreme Court decision allowing schools leeway in regulating student speech, it could punish her because Levy’s post had “substantially” disrupted school order. Several lower court judges sided with Levy, finding that that decision did not apply.
Many of the justices in Wednesday’s arguments appeared sympathetic to Levy, yet, at the same time, were wary of issuing a ruling that would unduly curtail the ability of public schools to regulate student speech in potential bullying situations.
Justice Clarence Thomas asked if schools could potentially punish students for disruptive speech online about “hot-button issues” such as protests, Black Lives Matter, or antifa. Lisa Blatt, an attorney for the school district, replied that, in general, students could not be policed for making comments about those topics.
“The other side is just wrong to suggest that schools are somehow the gulag on campus,” Blatt said. “That has never been the rule.”
Justice Stephen Breyer said that as he read over the 1969 case, Tinker v. Des Moines Independent Community School District, he did not find much reason to believe it gave the school power to regulate Levy’s speech on Snapchat.
“She used unattractive swear words off campus,” Breyer said. “Did that cause a material and substantial disruption? I don’t see much evidence that it did. If swearing off campus did, then my goodness, every school in the country would be doing nothing but punishing.”
Justice Brett Kavanaugh also said he doubted that Levy’s Snapchat rose to the level of a disruption, considering she used the app in the same way many other frustrated teenage women do.
“She’s competitive. She cares,” Kavanaugh said. “She blew off steam like millions of other kids have when they’re disappointed about being cut from the high school team or not being in the starting lineup or not making all-league.”
At the same time, the justices said that one of the pillars of the school’s arguments, that speech occurring on the internet could fall within its jurisdiction, made the case more difficult.
“That sharp line I think you’re trying to draw between on campus and off campus, how does that fit with modern technology?” Chief Justice John Roberts asked an attorney representing Levy. “I mean, it’s a text or a snap that you send from the park, and it’s read in the cafeteria. Is that off campus, or on campus?”
Blatt argued that the lower court’s ruling used a “silly, arbitrary, unfounded” standard to find that, because the Levy was off campus, the school had no power over her speech. Instead, she argued that the court should impose a standard judging student speech on a case-by-case basis, based on how it affected the school community.
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The Biden administration threw its support behind the school district, arguing that only allowing it to regulate speech on campus would allow cyberbullying to run rampant. In a brief filed to the court, the administration argued that the federal government has a significant interest in “addressing, preventing, and enforcing prohibitions on bullying and harassment of students” and that Levy’s Snapchat story had distressed other students who made the team.
A decision is expected by the summer.
