Cussing Cheerleader Prevails in Student Speech Dispute at the Supreme Court

Justices limit schools’ power to regulate off-campus speech

Kevin Daley • June 23, 2021 3:35 pm

The Supreme Court on Wednesday said a Scranton-area school district violated the First Amendment when it removed a female student from the cheerleading squad because she posted vulgar Snapchats.

Cheerleader Brandi Levy, referred to in court papers by her initials, set off a major First Amendment battle when she challenged her suspension from the squad in federal court. Justice Stephen Breyer delivered the opinion for an 8-1 Court, over the dissent of Justice Clarence Thomas.

“B.L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection,” Breyer wrote.

Wednesday’s decision is likely the first of a series delineating student speech rights for the digital era. The ruling avoided a sweeping statement about the First Amendment rights of students, even as schools and college campuses are daily embroiled in political or social controversy. What student speech precedents the Court has are decades-old, and did not anticipate a world in which student activities off-campus or in social media can dominate the academic environment.

After learning she would spend a second year on the junior varsity cheer squad, Levy posted a video on Snapchat in which she held up her middle finger above a caption that read, “F— softball f— school f— cheer f— everything.” Her coaches removed her from the squad for the remainder of the academic year.

Levy shared the video on a Saturday from a local store called Cocoa Hut. The Third U.S. Circuit Court of Appeals homed in on this point in a decision siding with Levy that said schools cannot regulate off-campus speech, even though they’re allowed to limit expression that disrupts the academic environment.

“Communicative technologies open new territories where regulators might seek to suppress speech they consider inappropriate, uncouth, or provocative,” the Third Circuit’s decision reads. “And we cannot permit such efforts, no matter how well intentioned, without sacrificing precious freedoms that the First Amendment protects.”

In Wednesday’s ruling, the Court said the Third Circuit’s categorical holding went too far. The justices instead set guideposts for future disputes that try to strike the right balance between speech and safety.

First, the Court said off-campus speech will normally fall under parental authority, not the school’s. Next, school officials will bear a “heavy burden” to justify interference with political or religious speech beyond the schoolhouse gate. Finally, the Court said schools should not censor speech that might offend their students, since public schools are “nurseries of democracy.”

The decision elsewhere adds that the schools can intervene when threats or cyberbullying are at issue.

“We do not now set forth a broad, highly general First Amendment rule,” Breyer wrote.

That cautious approach tracks the anxiety Breyer sounded about Wednesday’s case during oral arguments in April. Breyer told lawyers for Levy that he was “frightened to death of writing a standard” for student speech cases at this point, given the many interests involved.

Levy’s American Civil Liberties Union attorneys welcomed Wednesday’s decision.

“The school in this case asked the Court to allow it to punish speech that it considered ‘disruptive,’ regardless of where it occurs. If the Court had accepted that argument, it would have put in peril all manner of young people’s speech, including their expression on politics, school operations, and general teen frustrations,” said ACLU legal director David Cole.

Conservative religious liberty litigators similarly sounded notes of approval. Levy’s case unfolded alongside others featuring students who were punished for expressing views about marriage or sexuality in line with their religious beliefs. In one representative case, an education major at the State University of New York at Geneseo was removed from student-teaching because he criticized progressive gender ideology on Instagram.

In dissent, Thomas argued that administrators historically had authority over any speech that harmed the school environment regardless of where it was uttered, particularly language that was disrespectful of teachers and headmasters.

“If there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it,” Thomas wrote. “The purpose and effect of B.L.’s speech was ‘to degrade the program and cheerleading staff’ in front of ‘other pupils,’ thus having ‘a direct and immediate tendency to subvert the cheerleading coach’s authority.’ As a result, the coach had authority to discipline B.L.”