Cheerleader’s Vulgarity Shielded in Supreme Court Speech Win

The U.S. Supreme Court said a public high school violated the Constitution when it punished a 14-year-old cheerleader for a profane Snapchat rant in a ruling that bolsters the First Amendment rights of students when they post on social media.

The 8-1 ruling said officials have less power to regulate what students say when they are off-campus and aren’t taking part in school-related activities than when they are in the school environment.

“This holding protects student expression from school oversight in every aspect of their lives and confirms that parents, not bureaucrats, retain responsibility for their children’s conduct outside of the school campus,” said Pacific Legal Foundation attorney Deborah La Fetra, who filed an amicus brief in support of the cheerleader.

But the court stopped short of saying that schools can never punish off-campus speech and said judges should make a case-by-case determination of what limits might be permissible.

The ruling does “not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent,” Justice Stephen Breyer wrote for the court.

In particular, the ruling provides some “First Amendment leeway” for schools to address bullying and sexual harassment that may occur off-campus but can nevertheless have a substantial impact on the school environment. Justice Clarence Thomas was the sole dissenter.

The ruling is a victory for Brandi Levy, who was a freshman at Pennsylvania’s Mahanoy Area High School when she took to Snapchat to voice her frustration over not making the varsity cheerleading team and being put on the junior varsity. She had also recently failed to get her desired position on a local softball team.

F--- Cheer

“F--- school f--- softball f--- cheer f--- everything,” she posted, along with a photo of her and a friend raising their middle fingers. The post, which she sent in May 2017 from a local convenience store, went to her 250 Snapchat friends and, as “Snaps” do, disappeared after 24 hours.

The post nonetheless made its way to the school’s cheerleading coaches, who suspended her from the team for her entire sophomore year, saying she had violated team rules.

Although the court rejected the Philadelphia-based 3rd U.S. Court of Appeals’ broad ruling that categorically prohibited schools from regulating off-campus speech, the ruling is considered a win for students.

The Supreme Court itself had never ruled on the scope of schools’ authority to regulate purely off-campus speech, previously limiting its analysis to speech occurring on-campus or at school-sponsored events.

Lower courts across the country had found workarounds that expanded the reach of school authority, said constitutional law professor Derek Black of the University of South Carolina, who filed an amicus brief in favor of the school.

The court’s ruling provides substantial protections for students outside the school environment, despite refusing to create a categorical no-man’s land, La Fetra said.

Wary Justices

During oral argument in April, several justices were hesitant about creating a bright-line test that would govern future cases. “I’m frightened to death of writing a standard,” Breyer said during arguments, noting the ever-changing nature of technology and its ubiquitous use by schools and students.

That hesitance translated to the court’s opinion.

The court instead set some guideposts for lower courts to follow, while emphasizing that schools generally have a diminished interest in regulating speech outside of the on-campus setting.

When “it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention,” the court said.

La Fetra said she wouldn’t be surprised to see future cases trying to apply the court’s decision and establish the line between proper and improper school regulation.

But Black noted that the court has generally been hesitant to wade into school discipline cases, instead deferring to school administrators.

In a separate concurrence, Justice Samuel Alito echoed that sentiment, noting that there are some 90,000 public schools in the nation.

“The overwhelming majority of school administrators, teachers, and coaches are men and women who are deeply dedicated to the best interests of their students,” Alito said.

Nurseries of Democracy

Nevertheless, Alito said -- and a majority of the court agreed -- that the school here got “carried away.”

The justices said that, while profane, Levy’s message was one of criticism of her school community, which is entitled to First Amendment protections.

The court emphasized that schools are “nurseries of democracy” that must instill an acceptance of unpopular ideas to protect the “marketplace of ideas” critical to a functioning democracy.

“It might be tempting to dismiss B.L.’s words as unworthy of the robust First Amendment protections discussed herein,” wrote Breyer, who referred to Levy by her initials in the opinion. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

The case is Mahanoy Area School District v. B.L., 20-255.

©2021 Bloomberg L.P.

BQ Install

Bloomberg Quint

Add BloombergQuint App to Home screen.