Competing answers to those questions have riddled Supreme Court justices’ opinions on issues of student speech since 1969, when the court vindicated the constitutional rights of siblings John and Mary Beth Tinker. In that case, students in Des Moines wore black armbands to protest the Vietnam War over the objections of educators. Tellingly, though, no high school student has prevailed in a First Amendment case at the high court since 1969.
Now the issue has returned in a case whose quotidian facts hardly seem the stuff of a landmark legal opinion. But that ubiquity may be precisely the point. The case — involving a high school student who posted a profanity-laced message on Snapchat — arises in an era when pervasive social media and smartphones have combined to pose novel challenges for schools, as for society, and when concerns about uncivil speech have reached new heights.
The case began in 2017, when Brandi Levy, a 14-year-old high school student in Mahanoy City, Pa., learned that she had failed to make the varsity cheerleading squad. Being demoted to junior varsity left her feeling less than cheerful. She vented her frustration by firing off what would become an infamous eight-word message. “Fuck school fuck softball fuck cheer fuck everything,” Levy wrote, while hanging out at a convenience store on a Saturday.
The message was designed to disappear, but Levy’s cheerleading coaches got wind of it and suspended Levy from cheerleading for a year. Levy sued, and a federal appeals court ruled that the school had violated her free speech rights.
Levy’s outburst is hardly the high-minded stuff of antiwar protests, but it illuminates the same divergent conceptions of citizenship that divided the court in Tinker v. Des Moines Independent Community School District. Writing for the seven-justice majority, Justice Abe Fortas declared that students could not be forced to “shed their constitutional rights” to free expression “at the schoolhouse gate.” Rather, he contended, in our “relatively permissive, often disputatious, society,” public schools must permit robust, rollicking debate because that democratic value is “the basis of our national strength.”
Justice Hugo Black vehemently dissented, but he tacitly agreed that schools do in fact play an indispensable role in fostering citizens. Rather than schools welcoming dissident student views, Black advanced the conception of citizenship that is found on many young students’ report cards — one that prioritizes compliance, deference to authority and, perhaps above all, playing nicely with others. “School discipline,” he wrote, “is an integral and important part of training our children to be good citizens — to be better citizens.”
Black’s thin conception of citizenship has become the dominant view. In 1986, the court permitted the suspension of a student for delivering a school assembly address laden with sexual innuendo, emphasizing that schools are entrusted with transmitting “the essential lessons of civil, mature conduct.” In 2007, the court upheld a suspension of a high school senior for unfurling a 14-foot banner at a school-sanctioned parade that read: “BONG HiTS 4 JESUS.”
This trend might appear to doom Levy. But ruling against her would send a chilling citizenship lesson to the nation’s students, and extend the government’s authority over students to dangerous new levels. It is one thing for the judiciary to permit a narrowed conception of citizens’ free-speech rights when students are in school. But it is quite another for the judiciary to apply that same crabbed conception to speech beyond the school setting. That unbounded view of government authority over even young people is antithetical to American traditions.
It may be tempting to believe that in the digital age schools must be empowered to punish speech that is uttered beyond the metaphorical “schoolhouse gate.” After all, cyberbullying and threats of violence directed toward students, schools and educators are unmistakably serious problems. But existing laws already give authorities leeway to regulate that harmful conduct. Such measures render it both unwise and unnecessary to impose diluted First Amendment protections on students when they are in the public square rather than in the public school.
Fifty years ago, the court concluded that a man could not be punished for wearing a jacket emblazoned with the words “Fuck the Draft” in a courthouse corridor, noting that “one man’s vulgarity is another’s lyric.” The military draft doubtless holds more national import than the composition of cheerleading squads. But young people routinely find their voices by speaking out about matters of perceived injustice involving schools. If the court permits Levy’s sanction to stand, moreover, it could prove exceedingly difficult to cabin that holding to extracurricular activities. Recall that Levy said “fuck school,” not just “fuck cheer,” and overzealous principals will doubtless assert that such vulgarity, even uttered off campus, disrupts core educational activities.
We should hope that the court avoids taking even the first step down that treacherous road.