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Supreme Court says cheerleader’s f-bombs protected under First Amendment
Can a student be disciplined for f-bombs delivered on social media from off campus?
By an 8-1 vote, the Supreme Court on Wednesday sided with a cheerleader punished for sending a vulgar social media message outside of school grounds. In Mahanoy Area School District v. B.L., the court ruled that the student’s school district had violated the First Amendment in suspending the cheerleader from the team for the message.
In 2017, Brandi Levy, then a 14-year-old Pennsylvania high school student at Mahanoy Area High School in Mahanoy City, failed to make the school’s varsity cheerleading squad. She proceeded to voice her opinion in no uncertain terms, posting a message with herself and a friend raising their middle fingers and labeling the message with “F— school f— softball f— cheer f— everything.” The message was sent via Snapchat from a local convenience store on a Saturday.
While Snapchat messages are designed to vanish shortly after being sent, another student screenshotted the image and showed it to her mother, who was one of the cheerleading team’s coaches. In response to the message, the school suspended Levy from the team for a year.
Levy filed suit against the school district and won a victory in the United States Court of Appeals for the Third Circuit in Philadelphia. At issue: whether schools could punish students for speech made off of school property.
Precedent in student free speech cases has generally touched on two key components: whether the physical location of the student limits their right to free speech, and whether the speech itself rises to the level of “disruptive.” Tinker v. Des Moines Independent Community School District from 1969, for instance, gave students the right to wear black armbands in protest of the Vietnam War.
In Levy’s case, critics said the Third Circuit’s majority ruling, which prevented discipline for off-campus speech, did not account for the decentralized nature of social media and the potential for cyberbullying. A concurring opinion contended that Levy’s speech qualified as protected because it did not affect school operations, but that the circuit court did not need to take the extra step of protecting all off-campus speech.
The Supreme Court largely concurred. Writing for the majority, Justice Stephen Breyer noted that the school district overreached in disciplining Levy for only throwing a few f-bombs on social media. "While public schools may have a special interest in regulating some off-campus student speech,” he wrote, “the special interests offered by the school are not sufficient to overcome B. L.'s interest in free expression in this case.” (Levy was referred to by her initials because she was a minor, but she has since consented to allow her full name to be used.)
Breyer also noted that the vulgar nature of Levy’s remarks didn’t invalidate her right to speech. “It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein,” Breyer wrote. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
The school board had appealed the Third Circuit’s decision on the premise that disruptive statements on social media don’t need to be delivered on campus grounds to warrant discipline. The board noted that 47 states have laws requiring schools to enforce anti-bullying policies already on the books. However, the Supreme Court concluded that Levy’s speech, while vulgar, didn’t rise to the level of disruptive.
The Supreme Court did leave open the possibility that schools could discipline students for off-campus speech that did meet the disruptive standard. Breyer noted that “we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus. The school’s regulatory interests remain significant in some off-campus circumstances,” including bullying, harassment, threats, cheating and other violations of school rules.
In a dissenting opinion, Justice Clarence Thomas contended that the court focused too closely on the location of the statement, and not enough on the potential ripple effect of such statements. “A school can regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the school, its faculty or students, or its programs,” Thomas wrote.
He also noted that technology has rendered certain aspects of precedent obsolete. “Unlike Tinker, which involved a school’s authority under a straightforward fact pattern,” Thomas wrote, “this case involves speech made in one location but capable of being received in countless others—an issue that has been aggravated exponentially by recent technological advances.”
The decision affects the rights of approximately 50 million students, at all levels, in America.
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Jay Busbee is a writer for Yahoo Sports. Follow him on Twitter at @jaybusbee or contact him at jay.busbee@yahoo.com.
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