Irate teen's rant held as free speech by justices

Brandi Levy speaks by video link Wednesday in Mahanoy City, Pa., with Witold “Vic” Walczak, director of the American Civil Liberties Union of Pennsylvania, after the Supreme Court ruled that her free speech rights were violated by her former high school.
(AP/Republican-Herald/David McKeown)
Brandi Levy speaks by video link Wednesday in Mahanoy City, Pa., with Witold “Vic” Walczak, director of the American Civil Liberties Union of Pennsylvania, after the Supreme Court ruled that her free speech rights were violated by her former high school. (AP/Republican-Herald/David McKeown)

WASHINGTON -- The Supreme Court on Wednesday ruled for a Pennsylvania cheerleader whose profane off-campus rant cost her a spot on the cheerleading squad, saying the punishment violated her First Amendment rights.

The decision, in a vote of 8-1, did not establish a categorical ban on regulating student speech outside of school, citing the need for school systems to be able to deal with issues such as bullying and threats.

But it was the first time in more than 50 years that a high school student won a free-speech case in the Supreme Court, and the decision emphasized that courts should be skeptical of efforts to constrain off-campus speech.

"It might be tempting to dismiss B.L.'s words as unworthy of the robust First Amendment protections discussed herein," Justice Stephen Breyer wrote in his 11-page majority opinion, using Brandi Levy's initials because that was how she was identified in the original lawsuit. Levy has granted numerous interviews allowing her name to be used.

"But sometimes it is necessary to protect the superfluous in order to preserve the necessary."

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Justice Clarence Thomas dissented and said he does not believe students and children have such protected rights.

Levy -- now an 18-year-old college student -- was a frustrated ninth-grader when she lamented being passed over for the varsity cheerleading squad at Mahanoy Area High School. On a spring Saturday in her freshman year, she posted on Snapchat a photo of herself and a friend with upraised middle fingers and this rant:

"F* * * school, f* * * softball, f* * * cheer, f* * * everything." It was sent to about 250 friends, including fellow cheerleaders at her school.

Although Snapchat messages are meant to vanish not long after they are sent, another student took a screenshot and showed it to her mother, a coach. The school suspended Levy from junior varsity cheerleading -- but not from school -- for a year, saying the punishment was needed to "avoid chaos" and maintain a "teamlike environment."

An appeals court said schools had no authority over student speech that occurs off-campus, relying on a precedent from a different era.

In 1969, in Tinker v. Des Moines Independent Community School District, the Supreme Court allowed students to wear black armbands to protest the Vietnam War, saying the students had not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." But disruptive speech, at least on school grounds, could be punished, the court added.

But Breyer said the Supreme Court was not willing to go that far.

"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," Breyer wrote. "The school's regulatory interests remain significant in some off-campus circumstances."

"These include," he wrote, "serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers."

But Levi's speech did not fit, he wrote.

"The vulgarity in B.L.'s posts encompassed a message, an expression of B.L.'s irritation with, and criticism of, the school and cheerleading communities," Breyer wrote, adding "the school's interest in teaching good manners is not sufficient, in this case, to overcome B.L.'s interest in free expression."

Instead of applying a categorical rule, Breyer said three factors should make courts wary of allowing schools to supervise what students say off campus: Parents rather than administrators are better suited to disciplining children away from school, the specter of round-the-clock surveillance is at odds with free speech values and schools should teach students that unpopular speech is worthy of protection.

In dissent, Thomas wrote that "the majority fails to consider whether schools often will have more authority, not less, to discipline students who transmit speech through social media."

"Because off-campus speech made through social media can be received on campus (and can spread rapidly to countless people)," Thomas wrote, "it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation."

Justice Samuel Alito wrote in a concurring opinion that school officials in Mahanoy got "carried away" in seeking to discipline Levy. "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."

ACLU lawyers who represented Levy welcomed the outcome.

"Protecting young people's free speech rights when they are outside of school is vital, and this is a huge victory for the free speech rights of millions of students who attend our nation's public schools," said David Cole, legal director of the ACLU.

For her part, Levy expressed satisfaction with the Supreme Court's ruling.

"The school went too far, and I'm glad that the Supreme Court agrees," said Levy. "I was frustrated, I was 14 years old, and I expressed my frustration the way teenagers do today. Young people need to have the ability to express themselves without worrying about being punished when they get to school."

ARKANSAS EFFECT

Mike Hernandez, executive director of the Arkansas Association of Educational Administrators, said some school districts in the state may have to modify their policies as a result of Wednesday's ruling.

"I think there will have to be some potential policy updates as they try to grapple with this new precedence set by the Supreme Court," he said. "This probably answers some questions for administrators when they question whether they should or could take action."

The situation regarding Levy would have been different if it involved a threat or bullying, Hernandez said.

"It was isolated to her personal phone, off campus and her circle of friends on Snapchat," he said. "It wasn't viewed as causing a major disruption on campus and wasn't directed toward anyone specifically."

Lucas Harder, policy services director at the Arkansas School Boards Association, said he'd only had a chance to skim the ruling as of Wednesday afternoon but it doesn't seem to affect any Arkansas state law.

Harder said school districts should be "slightly more hesitant" to take immediate action on similar posts without doing further investigations to get more background on the surrounding circumstances of the post.

"Superintendents and school board members will need to have some additional training on how this is going to impact things," he said.

Chris Heller, outside counsel for the Little Rock School District, said the ruling probably wouldn't have a big impact in Arkansas.

"Most school districts wouldn't impose discipline for something that happened off campus unless it created a disruption on campus, beyond just some cheerleader being upset and having a discussion in algebra class with their algebra teacher, who happens to be a cheer coach," he said, referring to Levy's case.

Heller said the ruling was interesting but not surprising.

"A school district's authority is a lot different when you get away from the school campus or a school field trip or something where the school isn't in direct control of the student, and this case illustrates that," he said.

Heller cited Thomas' dissent: "The court transparently takes a common-law approach to today's decision. In effect, it states just one rule: Schools can regulate speech less often when that speech occurs off campus."

Information for this article was contributed by Robert Barnes of The Washington Post; by Adam Liptak of The New York Times; by Mark Sherman and Jessica Gresko of The Associated Press; and by Bill Bowden of the Arkansas Democrat-Gazette.

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