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Opinion The Supreme Court teaches students an important lesson on free speech

Brandi Levy, a former cheerleader at Mahanoy Area High School in Mahanoy City, Pa., in an undated photo provided by the American Civil Liberties Union. (Danna Singer/ACLU/via Reuters)
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David Cole is national legal director of the ACLU and a professor at Georgetown University Law Center. He represented Brandi Levy before the Supreme Court.

Nearly 50 years ago, in Tinker v. Des Moines Independent Community School District, the Supreme Court announced that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The decision is justly celebrated as recognizing that students have speech rights inside school, as the court ruled that Mary Beth Tinker could not be punished for wearing a black armband to school to protest the Vietnam War. But the victory came with strings, as the court recognized that school authorities need broad leeway to regulate student speech in school if it causes — or even might cause — “substantial disruption.”

Wednesday, in a bookend to Tinker, the court ruled that when students leave school each day, they don’t have to carry the schoolhouse on their backs. In Mahanoy Area School District v. B.L. the court ruled, 8 to 1, that a Pennsylvania high school violated the First Amendment when it suspended freshman Brandi Levy from the cheerleading team for a year for expressing her frustration — in a Snapchat on a weekend, outside school, while hanging out with a friend at the local Cocoa Hut.

Brandi’s Snap said “Fuck school, fuck softball, fuck cheer, fuck everything.” The school district had urged the court to allow schools to discipline students for their speech outside school on the same basis as they can regulate it inside school — if it might cause “disruption.” The court resoundingly rejected that approach.

As Justice Stephen G. Breyer wrote for the court, schools generally don’t have authority over young people outside school; their parents do. And if students had to conform their speech in the outside world to the same extent as when they are in school, they would never enjoy full freedom of speech. Most importantly, he noted, “America’s public schools are the nurseries of democracy. … Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it.’ ”

Some have called the decision narrow. But the clear message is that if the reason a school does not approve of off-campus speech is that it’s controversial, unruly, vulgar or unpopular, that’s a reason to protect speech, not restrict it.

This ruling was essential. Schools in recent years have disciplined students for posting photographs of themselves going to a gun range, calling out others as racist or complaining about a school’s failure to maintain safe practices during the pandemic. And, invoking Tinker, schools have also punished students for wearing shirts with Confederate and U.S. flag insignia, or that condemn abortion.

All such speech, outside the school, is plainly off limits under this decision. The 50 million public school students across the country can breathe a sigh of relief.

This does not mean school administrators are helpless to address speech outside school, which in the Internet age can of course have effects inside school. All parties before the court agreed that schools have a legitimate interest in regulating some such speech. Severe harassment and bullying can interfere with a student’s ability to learn. Principals have to respond to threats to the school, its staff or students, wherever they arise. And, of course, cheating outside school is subject to the school’s authority.

Breyer acknowledged as much, but noted that because Levy’s Snap was not even allegedly harassing, bullying, threatening or cheating, her case provided no occasion to resolve those issues. By refusing to adopt the school’s argument that any speech directed to another student or about the school could be prohibited if deemed potentially disruptive, the court made clear that these other categories of speech will have to be addressed through more narrowly tailored doctrines — using a scalpel rather than the sledgehammer of a vague “disruption” standard.

Perhaps most encouraging, this case brought together voices from the right, left and center. Levy had “friend of the court” briefs filed in her support by nine Republican states; virtually every conservative legal organization, including Alliance Defending Freedom, the Cato Institute, and the Pacific Legal Foundation; leading civil rights groups such as Lambda Legal, the Lawyers' Committee for Civil Rights, and the National Women’s Law Center; and leading criminal and juvenile justice groups, including the Juvenile Law Center and the Advancement Project. It is rare to find an issue on which all of these groups agree.

Yet they came together, as did eight justices, on the critical importance of respecting young people’s freedom of speech — and teaching them in turn about the importance of respecting other people’s free speech rights, too.

Read more:

Ruth Marcus: The Supreme Court’s conservative majority returns to its passion project

George F. Will: A cheerleader’s salty language gives the Supreme Court a chance to bolster the First Amendment

Justin Driver: Why we all should want the suspended cheerleader to win her Supreme Court case

Letters to the Editor: The wrong message from the cheerleader case

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