The Supreme Court on Wednesday ruled 8-1 in favor of Brandi Levy, a 14-year-old high school freshman whose swear-laden Snapchat post became a First Amendment test whether a public school has the right to discipline students for off-campus speech.

Levy, of Mahanoy, Pennsylvania, was frustrated because she didn’t make her varsity cheerleading team. Relegated to another year on JV, she took a moment to vent:

“F——— school f——— softball f——— cheer f——— everything…”

The post also featured a photo of her and her friend offering up their middle fingers.

That missive earned Levy a one-year suspension from cheerleading after it was brought to the attention of her coaches.

“I was a 14-year-old kid,” Levy told the AP. “I was upset, I was angry. Everyone, every 14-year-old kid speaks like that at one point …”

Her parents agreed and filed a federal lawsuit that argues the school violated her First Amendment right to free speech.

Lower courts mostly agreed and returned Levy to her cheer squad, but the United States government appealed those rulings.

“The First Amendment does not categorically prohibit public schools from disciplining students for speech that occurs off-campus,” U.S. Solicitor General Elizabeth Prelogar wrote on behalf of the Biden administration.

The school district was thankful for that position. In a legal brief, the Mahanoy School District attorney explained schools cannot reasonably be asked to “ignore speech that disrupts the school environment or invades other students’ rights just because students launched that speech from five feet outside the schoolhouse gate.”

The district and its allies pointed to pervasive cyberbullying as a for-instance.

But that misses the point, the ACLU successfully argued on behalf of Levy. The ACLU staff attorney says the district and government’s position could create a surveillance arm of public schools.

“And that is super dangerous,” Witold Walczak argues. “Not only would students like Brandi not be able to express non-threatening, non-harassing bursts of frustration, but it would give schools the possibility of regulating important political and religious speech.”

That position rests on the most important student-free-speech ruling in modern history, as the AP explains of Tinker Vs. Des Moines:

The case has its roots in the Vietnam-era case of a high school in Des Moines, Iowa, that suspended students who wore armbands to protest the war. In a landmark ruling, the Supreme Court sided with the students, declaring students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

We kept our eye on the case and didn’t see any material difference, other than technology, in Tinker than in Levy.

Justice Samuel Alito mostly seemed to agree, writing “If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.”

That’s right. We always thought the school was wrong on the Constitution and misguided for the way they punished an adolescent for a moment of passionate exclaim. The school clearly blew the initial teaching moment, but in so doing, gave us all some good case law on the topic.


(2) comments

Eddy R. Woodchuck III

I agree with Julia on this. To clarify, the US is a Constitution Republic Democracy. The Constitutional Republic part means certain rights of each individual are to be protected regardless of what a majority might want - that is to avoid mob rule and targeting individuals. The rights to protect each are outlined in the Bill or Rights and Constitutional amendments. The Democracy part (simple majority} is for the rights not protected by those documents.

Julie Hansen

Thank you for this editorial. Your point about a teaching moment is spot on. Dealing with the permanence of electronic speech is an increasing challenge, but schools are laboratories of democracy.

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