WASHINGTON (CN) — School officials violated the First Amendment in punishing a cheerleader who wrote defamatory remarks against her coaches, school and teammates on her own time, the Supreme Court ruled Wednesday.
Brandi Levy of Pennsylvania was only 14 when she wrote “fuck school fuck softball fuck cheer fuck everything,” on the social media website Snapchat — a platform that erases messages between users after a certain period of time. After her comments got back around to her coaches, however, Levy was removed from her junior varsity spot on the Mahanoy Area School District’s cheerleading squad.
Levy and her parents sued, and the Third Circuit affirmed that her First Amendment rights had been violated. The Supreme Court heard oral arguments in April where the school district leaned on the 1969 precedent Tinker v. Des Moines Independent Community School District. Though the court there said students had the right to wear black armbands in protest of the Vietnam War, it also noted how disruptive such speech could be on campus. For Mahanoy school officials, such precedent made it clear Levy’s speech was subject to regulation.
The high court sided with Levy 8-1 on Wednesday.
Writing for the majority, Justice Stephen Breyer said a school district carries a heavy burden to prove it has a right to interfere with speech outside campus. He said the school also has an interest in protecting students’ unpopular opinions, even when that expression takes place off campus.
“America’s public schools are the nurseries of democracy,” Breyer wrote. “Our representative democracy only works if we protect the ‘marketplace of ideas.’ This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the people’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection.”
Breyer noted while Levy’s speech was crude, her criticism didn’t “involve features that would place it outside the First Amendment’s ordinary protection.” The school argued its interest in punishing such speech made outside of the classroom was to “prevent disruption” in an extracurricular activity, but Breyer wrote there was nothing in the record to show her speech amounted to a disruption.
“Rather, the record shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class ‘for just a couple of days’ and that some members of the cheerleading team were ‘upset’ about the content” of the posts, Breyer wrote, finding the disruption did not amount to the “demanding standard” of Tinker precedent.
“It might be tempting to dismiss B.L.’s words as unworthy of the robust First Amendment protections discussed herein,” the ruling states. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
Justice Clarence Thomas — who turned 73 years old on Wednesday — was the only dissenter to Wednesday’s ruling.
In a 9-page opinion, Thomas said his issue is that the majority had not clearly defined the powers schools possess for regulating off-campus speech and conduct. He argued the majority failed to look at historically similar situations where districts regulated speech like Levy’s and “does not attempt to tether its approach to anything stable.”
Thomas said the cheerleading coach had authority to discipline Levy if that speech occurred off campus and its purpose and effect was to degrade the program and subvert the coach’s authority.
“The discipline here — a 1-year suspension from the team — may strike some as disproportionate,” he wrote. “But that does not matter for our purposes. … The majority and the parties provide no textual or historical evidence to suggest that federal courts generally can police the proportionality of school disciplinary decisions in the name of the First Amendment.”
In a concurring opinion, Justice Samuel Alito wrote separately to discuss in loco parentis, a legal doctrine referring to school officials or other adults responsible for children acting in place of parents.
Alito, joined in his analysis by Justice Neil Gorsuch, said most school administrators across more than 13,000 separate school districts in the U.S. have the best intentions, “but it is predictable that there will be occasions when some will get carried away, as did the school officials in the case at hand.”
“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,” Alito wrote.
In a statement Wednesday provided by its attorney Lisa Blatt of Williams & Connolly, the Mahanoy Area School District said it was vindicated by the court’s decision not to follow the Third Circuit’s reasoning that school districts lack authority to regulate off-campus speech. It noted the justices gave several examples of situations where schools can do just that.
"So, although the court upheld the $1 judgment in favor of Ms. Levy, we are very pleased that the court agreed with our arguments about schools' authority to address off-campus speech under a wide variety of situations," the district said. "This decision is an important vindication of schools' authority to protect students and staff and to fulfill schools' educational missions."
Levy’s attorney, Witold Walczak with the American Civil Liberties Union, did not immediately return a request for comment Wednesday.
The ACLU meanwhile has T-shirts emblazoned with Levy's protected Snapchat available for preorder.
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