The high school cheerleader relegated to the JV squad for another year responded with a fleeting fit of frustration: a photo of her upraised middle finger and another word that begins with F.
Instead, an adolescent outburst and the adult reaction to it have arrived at the Supreme Court, where the case could determine how the First Amendment’s protection of free speech applies to the off-campus activities of the nation’s 50 million public school students.
“This is the most momentous case in more than five decades involving student speech,” said Justin Driver, a Yale law professor and author of “The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.”
“Much of the speech from students is off-campus and increasingly online,” Driver said. “When I talk to school administrators, they consistently tell me that off-campus speech bedevils them, and the lower courts desperately need some guidance in this area.”
That shouldn’t be a surprise, as cellphones have become an extension of almost every teenager’s hand and social media a preferred mode of communication. And for the past year, many students have not gone near a school campus, with their “speech” happening in their homes during Zoom classes.
The First Amendment does not “force schools to ignore student speech that upends the campus environment simply because that speech originated off campus,” says a brief filed by Mahanoy Area School District, which upheld the school’s decision to kick Levy off the cheer squad.
“Wherever student speech originates, schools should be able to treat students alike when their speech is directed at the school and imposes the same disruptive harms on the school environment.”
The school board’s brief, as well as Driver’s book title, refers to the foundational Supreme Court case regarding student speech, Tinker v. Des Moines Independent Community School District. The 1969 decision famously held that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
But it also held that schools have broader authority over students than the state generally does when restricting speech and that authorities can discipline students for on-campus speech that causes or is likely to cause “material and substantial” disruption of school functions. (The court ruled 7 to 2 for Mary Beth Tinker because, it said, the black armband she wore to protest the Vietnam War was not disruptive.)
In the half-century since, the Supreme Court’s decisions have been few and lean toward school administrators. The justices have upheld school disciplinary action regarding lewd speech by students, a student newspaper that operated at the direction of school officials and a nonsensical sign with a seemingly pro-marijuana message — “Bong Hits 4 Jesus” — held by a student at a school activity.
Levy’s case is different. It concerns speech far beyond the schoolhouse gate, made online and on a weekend, unconnected to a school event.
“This may seem like a very narrow case about a minor temper tantrum on Snapchat, but it is about speech anywhere and everywhere, by students of all ages,” said Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida.
Because it is somewhat rare for the justices to take a student speech case, “they are writing broadly the standards that will apply for two or three generations,” LoMonte said. “And they are writing the standards for all forms of speech across all media.”
None of that was on Levy’s mind, of course, when she and a friend were at the Cocoa Hut, a 24-hour convenience store in Mahanoy City, a town in Pennsylvania’s coal country about 40 miles southwest of Wilkes-Barre. After a year on the Golden Bears junior varsity squad, she had hoped to move up to varsity. Worse, in her view, a rising freshman had gotten a spot ahead of her.
“I was just feeling really frustrated and upset at everything that day,” said Levy, now 18 and a college student studying accounting.
Besides the snap in which she and her friend posed with middle fingers extended, she sent another: “Love how me and [another student, whom Levy identified by name] get told we need a year of jv before we make varsity but that doesn’t matter to anyone else?” She signed off with an upside-down smiley face.
It was sent to about 250 people who received Levy’s snaps, which dissolve within 24 hours. “I didn’t think it would have had an effect on anyone, and it didn’t really,” Levy said.
But one person took a screenshot and showed it to another, who happened to be the daughter of one of the cheerleading coaches. Some cheerleaders complained about Levy’s message, and the coaches decided to suspend her from the squad for a year.
The coaches said Levy’s snap violated the team rules she had agreed to, including showing respect, avoiding “foul language and inappropriate gestures,” and a strict policy against “any negative information regarding cheerleading, cheerleaders, or coaches placed on the Internet.”
Brandi’s parents, Larry and Betty Lou, appealed to the athletic director, the principal, the superintendent and the school board, to no avail.
Then, with the help of the ACLU, they filed a federal lawsuit.
A district judge agreed that the suspension from the squad violated the First Amendment, noting that Brandi’s speech was not disruptive. He ordered her reinstated to the JV squad in her sophomore year, and she made varsity her junior and senior years.
“It was a little awkward,” she said, but the most lasting effect of the case is that fellow students sometimes call her “B.L.” because the case is Mahanoy Area School District v. B.L.
A panel of the U.S. Court of Appeals for the 3rd Circuit, acting on the school board’s appeal, went further than the district judge. Disagreeing with other courts that have considered the question, Judge Cheryl Ann Krause said Tinker’s grant of authority to school administrators does not extend to off-campus speech.
Her opinion defined that as “speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”
The court was mindful of the challenges administrators face to “manage the school environment in the digital age,” Krause wrote.
“We are equally mindful, however, that new communicative technologies open new territories where regulators might seek to suppress speech they consider inappropriate, uncouth, or provocative. And we cannot permit such efforts, no matter how well intentioned, without sacrificing precious freedoms that the First Amendment protects.”
Judge Thomas L. Ambro disagreed with his colleagues regarding off-campus speech and said it would have been enough for his colleagues to simply have ruled in Levy’s favor because her speech was not substantially disruptive.
The school district told the Supreme Court that allowing the 3rd Circuit’s ruling to stand would be dangerous.
“Since the dawn of public education, schools have exercised authority to discipline speech that disrupts the campus or harms other students, whether that speech originates on campus or off,” said the school district’s brief filed by Washington lawyer Lisa S. Blatt.
The district, supported in the Supreme Court by the Biden administration, poses a number of problems: the student who publishes answers to the test; the player who undermines the coach with an avalanche of tweets about his play-calling; the disruptive student across the street with a bullhorn.
More seriously: “The laws in the District of Columbia and at least 25 states require schools to address off-campus harassment or bullying that substantially disrupts the school environment or interferes with other students’ rights,” the brief states. “Students who encourage classmates to kill themselves, target black classmates with photos of lynchings, or text the whole class photos of fellow students in compromising positions, do not limit their invective to school hours.”
A coalition of groups concerned about cyberbullying filed a brief filled with examples of such tragic results, including “another cheerleader, a two-hour drive away” who took her own life after relentless online harassment.
The 3rd Circuit opinion said because Levy’s case did not raise those issues, it was “reserving for another day the First Amendment implications of off-campus student speech that threatens violence or harasses others.”
“Schools need to deal with cyberbullying,” said Witold J. Walczak, head of the Pennsylvania ACLU. “What separates us [the ACLU and the school board] is how much power the school is given to address those problems. We feel like the school district’s approach is too big a power grab.”
Levy has drawn support from a wide and ideologically diverse coalition of more than 100 organizations, 250 individuals and nine Republican state attorneys general.
“You won’t find another case in the past decade with such a diverse range of groups on the same side,” said David Cole, ACLU national legal director, who will argue the case when the Supreme Court hears it Wednesday. “We have support from the right to the left, from students to administrators, from civil rights groups, religious liberty organizations and red states.”
The issue comes before a Supreme Court that seems to pride itself on protecting unpopular speech. As LoMonte wrote in Slate, “The Roberts court has reliably said that . . . the First Amendment requires us to tolerate all manner of unpleasantness. That even includes anti-gay hate speech (Snyder v. Phelps), lying about military heroism (United States v. Alvarez), or selling videos of graphically violent dog fights (United States v. Stevens).”
Chief Justice John G. Roberts Jr. has called himself “probably the most aggressive defender of the First Amendment on the court.”
But he wrote the Morse v. Frederick decision in 2007, which upheld school administrators’ decision to discipline the student in the “Bong Hits 4 Jesus” case.
“The Roberts court has been noticeably hesitant to vindicate free speech rights when it comes to public school students,” said Driver, who notes that the court accepted for review a case in which the student prevailed.
Other justices have history, too. Justice Clarence Thomas wrote in Morse that Tinker was wrongly decided and that the Constitution “does not protect student speech in public schools.”
Justice Samuel A. Alito Jr., who has complained about the speech rights of conservatives on campuses not being respected, reluctantly joined the majority in Morse regarding speech about illegal drugs.
But he said he viewed that regulation “as standing at the far reaches of what the First Amendment permits. I join the opinion of the court with the understanding that the opinion does not endorse any further extension.”
Five of the justices were not on the court for Morse, the court’s last major student speech case.
But Justice Sonia Sotomayor, as a judge on the U.S. Court of Appeals for the 2nd Circuit, joined an opinion that sided with school administrators who barred a student from running for student council after she wrote in a blog post that officials were “douchebags” for interfering with a battle of the bands concert.
LoMonte said it is the relatively low stakes of student speech cases — the silly sign, a band concert, suspension from the cheerleading squad — that brings the possibility that judges and the public will trivialize them.
But he analogizes it to a police officer handing out $5 tickets to people wearing T-shirts with political statements the government doesn’t like.
“No federal judge in America would say, ‘Suck it up and pay the ticket,’ ” LoMonte said. “Even a very small amount of government punishment that is meant to deter you from speaking is enough to violate the First Amendment, and judges understand that very well every place other than schools.”