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Students still have First Amendment rights on social media
Share All sharing options for: Supreme Court says a school can’t punish a cheerleader for swearing on Snapchat
The Supreme Court says a Pennsylvania school can’t punish a cheerleader for swearing on Snapchat. The 8-1 ruling determined that students’ rights to free expression outweighed the school’s interest in preventing potentially disruptive speech — in this case, a snap captioned “fuck school fuck softball fuck cheer fuck everything.”
Justice Stephen Breyer delivered the majority opinion this morning, upholding an appeals court decision from the Third Circuit. He said that student Brandi Levy — identified as B.L. in court documents — shouldn’t have been suspended from her cheerleading team for a vulgar post about school sports. “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,” he wrote.
The student’s “pure speech” wasn’t harmful or harassing
Levy had unsuccessfully tried out for varsity cheerleading (as well as a position on a private softball team) and vented about the results on Snapchat, including a follow-up snap that said “Love how me and [another student] get told we need a year of [junior varsity] before we make varsity but that’s doesn’t matter to anyone else.” Another student complained about the snap, and the school issued a one-year suspension because she “used profanity in connection with a school extracurricular activity” on social media.
Breyer’s ruling notes that Levy posted her message “outside of school hours and away from the school’s campus.” Profanity notwithstanding, the message criticized a decision the school had made. “B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection,” it says. And while the school cracked down on Levy for posting vulgar language on social media, there was no evidence that it punished students for generally swearing outside the classroom.
Online learning muddies what counts as “on-campus speech”
Thanks to a case called Tinker v. Des Moines Independent Community School District, schools can penalize on-campus speech that “would materially and substantially disrupt the work and discipline of the school,” even if it’s protected by the First Amendment. But the standard for speech in other settings has been historically fuzzier, especially on social media where posts can be viewed anywhere at any time.
Breyer said the appeals court had ruled too broadly to limit Tinker, and he affirmed that schools can punish students for some off-campus speech, citing things like bullying and harassment as disruptive speech. His ruling also says the rise of distance learning — fueled by the coronavirus pandemic — has particularly complicated the issue. And the way Levy used social media mattered: her snap was sent to a private circle of friends and fellow students, and she didn’t identify the school or target any particular students.
Even so, the ruling emphatically supports students who make offensive — but not threatening or concretely harmful — statements online.
Justice Clarence Thomas was the sole dissenting vote on the case. Thomas, who has argued for legally stopping social media platforms from banning their users, wrote that schools may have “more authority, not less, to discipline students who transmit speech through social media.” His dissenting opinion states that “because off-campus speech made through social media can be received on campus (and can spread rapidly to countless people), it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation.”
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US supreme court backs teen suspended from cheer team over Snapchat post
Court ruled that a Pennsylvania public school violated the first amendment by punishing teen for expletive-laden post
Brandi Levy, a former cheerleader at Mahanoy Area high school in Mahanoy City, Pennsylvania. Photograph: Danna Singer/ACLU/AFP/Getty Images
Last modified on Thu 24 Jun 2021 11.38 BST
The US supreme court ruled on Wednesday that a Pennsylvania public high school violated the first amendment to the US constitution by suspending a student from a cheerleading squad after she made a vulgar social media post about not being picked, while she was off school grounds.
In an eight-to-one ruling from the nine-judge bench, the court upheld an appeals court decision that favored Brandi Levy, who was a 14-year-old freshman at Mahanoy Area school district when she angrily expressed her disappointment about not making the varsity cheerleading team.
She used curse words and rude gestures to an audience of 250 friends.
The Snapchat post included a picture of Levy and a friend with their middle fingers to the camera and the caption: “Fuck school, fuck softball, fuck cheer, fuck everything.”
Levy was off campus at a convenience store when she posted the message.
It earned her a suspension from the junior varsity team for a year and the American Civil Liberties Union (ACLU) took the case to court on the student’s behalf.
In an opinion by Stephen Breyer, the longest-serving justice and most senior member of what is regarded as the liberal wing of the bench, he said the court agreed with lower courts that the suspension violated Levy’s first amendment protections.
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“The school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus,” he wrote, noting it was because “America’s public schools are the nurseries of democracy.”
He applied Tinker v Des Moines Independent Community school district to Levy’s case, a 1969 decision that said students wearing black armbands to protest against the Vietnam war was protected speech as long as school was not severely disrupted.
The school district appealed the third circuit appeals court’s decision to the supreme court.
The district’s attorneys argued that Levy’s behavior was disruptive, that off-campus behavior is something long regulated by school administrations, and that remote learning during the pandemic was additionally creating a grey area on what is on-campus conduct, and what is off-campus.
The court erred on the side of respecting students’ free speech rights outside school buildings.
Breyer said schools rarely take the place of a student’s parent when the student is off campus and that off- and on-campus speech includes all the speech a student can utter in a 24-hour day.
“That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all,” wrote Breyer.
Justice Clarence Thomas dissented. He queried whether the majority had fully considered a school’s power of authority and also noted that because social media posts can be seen while a student is on campus, it carries the “tendency to harm the school environment”.
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