Cheerleader Free Speech Case Puts Liberals in a Bind
(Bloomberg Opinion) -- “Cheerleader” and “Supreme Court” are not concepts you often see juxtaposed. But they are now, as Supreme Court considers the case of Brandi Levy, who was punished by her school for a profane Snapchat post.
The facts of Levy’s case, Mahanoy School District v. B.L., are simple. In the spring of 2017, Levy, then 14, tried out for the varsity cheer squad at Mahanoy Area High School, but only managed to make the JV team. She expressed her reaction on Snapchat in a post that read “F--- school f--- softball f--- cheer f--- everything.” (Our version is expurgated; hers was not.) The post went up on a Saturday, reached some 250 of her friends and, like all other posts to the social media platform, disappeared after 24 hours. Nevertheless, a classmate showed a screenshot to her mother, who happened to be one of the cheer coaches.
The coaches disciplined Levy by suspending her from the team for a year. She had broken two team rules, they said. One prohibited “foul language” — although only at “games, fundraisers, and other events.” The other said that “there will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.” For good measure, the school district said she’d also violated school rules stating that members of teams must “conduct themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.”
What is most significant legally about Levy’s case is that she was punished for conduct that took place outside of school. In the landmark 1969 case Tinker v. Des Moines Independent School District, the Supreme Court held that kids have First Amendment rights in public schools, provided their speech doesn’t disrupt classwork or invade the rights of others. But the Supreme Court has never said whether speech outside of school can be regulated by administrators.
Obviously, the stakes are huge — especially in the era of social media, when conversations in school are inextricably intertwined with what happens online outside of school hours.
If kids can’t be disciplined for what they say outside of the school, administrators may feel that they have no meaningful control over students and can’t stop bullying or harassment.
Yet if schools can discipline students for what they say online, then the public schools, which are arms of the state, could easily become the speech police for everyone who attends U.S. publics, which is the overwhelming majority of kids and teens. The school rules that applied to Levy go pretty far in limiting free expression. Read closely, they might prohibit any meaningful criticism of teams or coaches. And the school is ultimately the judge of which student speech “tarnishes” the school’s image, which would certainly seem to chill many forms of legitimate criticism.
In the absence of direct Supreme Court guidance, the lower federal courts have mostly tried to carve out a compromise position: that schools may discipline off-campus speech when it has a “close nexus to the school environment.” Measured by that test, the Mahanoy rules would likely be allowed. But the majority of the panel of U.S. Court of Appeals for the Third Circuit that heard the case ruled that the school cannot discipline speech that was off-campus unless it was reasonably interpreted as bearing the imprimatur of the school. That led the school district to seek review by the Supreme Court.
Where you come down on this case says a lot about your free-speech instincts.
The ACLU, which represents Levy, is arguing for near-absolute protection for off-campus speech, because it deeply distrusts the government as the regulator of our communications. Lots of conservative organizations find themselves aligned with the ACLU on this one.
In contrast, the Biden administration’s Department of Justice, which filed a friend of the court brief, emphasizes that schools have legal duty to protect students against harassment based on race, sex, sexual orientation and disability. It’s clearly worried that if off-campus speech is out of bounds to school administrators, forbidding illegal discrimination will be a hopeless task. Anti-bullying organizations are taking the side of the school district and the Biden administration.
In the not-too-distant past, most liberals favored near absolute free speech, and conservatives tended to support the authority of government to regulate. Today, the tables are turned to a striking degree. Many conservatives now favor near absolute free-speech protection, while liberals want the government to use its power to protect equality.
Predicting what the justices will do is tricky. Of the court’s six conservatives, all but one (Justice Samuel Alito) attended private Catholic schools. That might make them sympathetic to school administrators, or it might drive them to seek a sharp distinction between the rules private schools can set and those public schools can issue. The simplest solution would be for them to adopt something like the “close nexus” test used by most of the lower courts. This would leave student free speech issues to case-by-case adjudication.
Regardless of the outcome, Levy’s case will set a benchmark for how schools may regulate students’ social media use. From a parent’s perspective, it’s hard to think of many subjects more immediately relevant.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
©2021 Bloomberg L.P.