Supreme Court Rules Cheerleader's F-Bombs Are Protected By The 1st Amendment

Jun 23, 2021
Originally published on June 23, 2021 6:21 pm

Updated June 23, 2021 at 4:48 PM ET

In a victory for student speech rights, the Supreme Court on Wednesday ruled that a former cheerleader's online F-bombs about her school is protected speech under the First Amendment.

But in an 8-1 vote, the court also declared that school administrators do have the power to punish student speech that occurs online or off campus if it genuinely disrupts classroom study. But the justices concluded that a few swearwords posted online off school grounds, as in this case, did not rise to the definition of disruptive.

At issue in the case was a series of F-bombs issued in 2017 on Snapchat by Brandi Levy, then a 14-year-old cheerleader who failed to win a promotion from the junior varsity to the varsity cheerleading team at her Pennsylvania school.

"I was really upset and frustrated at everything," she said in an interview with NPR in April. So she posted a photo of herself and a friend flipping the bird to the camera, along with a message that said, "F*** the school. ... F*** cheer, F*** everything."

Suspended from the team for what was considered disruptive behavior, Levy — and her parents — went to court. They argued that the school had no right to punish her for off-campus speech, whether it was posted online while away from school or spoken out loud at a Starbucks across the street from school.

A federal appeals court agreed with her, declaring that school officials have no authority to punish students for speech that occurs in places unconnected to the campus.

On Wednesday, the Supreme Court ruled for Levy while at the same time declaring that schools may in fact punish some speech, especially if it is harassing, bullying, cheating or otherwise disruptive.

Writing for the majority, Justice Stephen Breyer said that while "public schools may have a special interest in regulating some off-campus student speech," the justifications offered for punishing Levy's speech were simply insufficient. "To the contrary," said Breyer, the speech that Levy uttered "is the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection."

Breyer's decision harkened back to a 1969 case that involved students suspended for wearing black armbands to school to protest the Vietnam War. The court ruled then that students do have free speech rights under the Constitution, as long as the speech is not disruptive to the school.

On Wednesday, the high court reinforced that decision, concluding that while Levy's post was less than admirable, it did not meet the test of being disruptive. In his majority opinion, Breyer noted that her post did not target any individual, did not even name her school; her comments, he said, were made on her personal cellphone over the weekend, off campus and to her friends.

Breyer went on to establish some general guardrails for school districts to follow in the future. Parents, not schools, he said, generally have the responsibility for discipling students off campus. Indeed, were the school to have the power to discipline off-campus speech as a general matter, it would mean that everything a student said 24 hours a day would be subject to punishment by school authorities.

Instead, Breyer said, school authorities have an interest in protecting unpopular student expression, especially when it occurs off campus. After all, he added, "America's public schools are the nurseries of democracy."

"It's a huge victory for students' speech rights," said David Cole, legal director for the American Civil Liberties Union, which represented Levy. "It means that when students leave school every day, they don't have to carry the schoolhouse on their backs."

But Michael Levin, counsel for Pennsylvania's Mahanoy Area School District, also claimed victory, contending that schools could easily operate under these rules. "The Supreme Court ruled clearly that school districts had the right under the Constitution to regulate off-campus speech in a wide variety of situations," he said.

Joie Green, superintendent for the Mahanoy Area School District, however, was not so sure, noting that in this case Levy had signed a contract to follow the team rules, and she didn't. "All the school did was support the coach's rules," Green said. "Where is the line drawn?"

Gregory Garre, the former solicitor general who represented the National School Boards Association in the case, said he saw Wednesday's decision as a win for both sides — a victory for Levy on the facts of her case but also a clear rejection of the notion that off-campus speech is out of bounds for school discipline.

"The court took a common-sense approach here," Garre said. "Just because speech originates off campus, particularly in a special context of social media, doesn't mean that it can't substantially disrupt the campus and the classroom."

Yale law professor Justin Driver, author of The Schoolhouse Gate, a book about these issues, called the decision incredibly significant.

"It's the first time in more than 50 years that a public school student has prevailed in a free speech case at the Supreme Court," Driver pointed out. "Public school students should be dancing in the streets."

"At the same time," Driver said, "Justice Breyer's opinion for the court left many significant questions unanswered. And this suggests that the court is going to have another off-campus student speech case somewhere down the line."

But Garre noted that Breyer, whose future on the court is the subject of much scrutiny, still wrote for a near-unanimous court. "This well could end up being one of Justice Breyer's more significant opinions, whether he ends up stepping down this year or in future years," Garre said.

In a concurring opinion, Justice Samuel Alito wrote: "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."

In a statement, the National School Boards Association said that "while the school district lost on the facts of this particular case, it represents a win for schools, as well as students, who can still be protected from off-campus student speech that bullies, harasses, threatens, disrupts, or meets other circumstances outlined by the Court."

In a dissent, Justice Clarence Thomas wrote that the school was right to suspend Levy because students like her "who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs."

Thomas has long taken the position that students generally do not have free speech rights.

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The Supreme Court sided with students today. The justices ruled that a cheerleader's online F-bombs hurled at her school and her team are protected speech under the First Amendment. In an 8-to-1 vote, the court said that school administrators do have the power to punish students' speech online or off campus if it disrupts the classroom, but the justices concluded that a few swear words posted online from off campus, as in this case, did not meet the definition of disruptive. With me now, NPR legal affairs correspondent Nina Totenberg. Hi, Nina.


KING: Why did this case go all the way to the Supreme Court?

TOTENBERG: (Laughter) Well, this was a case brought by Brandi Levy, who at the time was a 14-year-old student in Mahanoy, Pa. She failed to win a promotion from the JV cheerleading squad to the varsity, and frustrated and upset, she launched a bunch of those F-bombs on Snapchat to some 200 of her friends, and they were all about school and life in general. When word of her message got out, she was suspended from the cheerleading squad, and she and her parents went to court, contending that she had a First Amendment right to express herself outside of school. A federal appeals court agreed with her, declaring that schools have no right to punish a student for speech outside of the school campus, ever.

Well, today, the Supreme Court drew a much narrower line. In an opinion by Justice Stephen Breyer, the court said there are times when schools can punish students for off-campus speech, like targeted bullying and harassment, but not speech like this, that, in essence, is of - the essence of a person's First Amendment free expression.

KING: What are some of the implications of today's ruling?

TOTENBERG: This was pretty down-the-middle kind of an opinion, very workmanlike opinion by Justice Breyer, very typical. He noted that if a school can punish off-campus speech as easily as this, then all of a student's speech is subject to punishment 24 hours a day, when she's at school and when she's not at school. And writing for the majority, he said while public schools do have a special interest in regulating some off-campus student speech, the special interests offered by the school here are not sufficient to overcome Brandi Levy's interest in free expression.

KING: OK. It was an 8-to-1 ruling. We have seen a bunch of lopsided opinions for this court. Is this another one of those?

TOTENBERG: Yes and no. Technically, it's an 8-to-1 opinion, but Justice Alito, writing for himself and Justice Gorsuch, wrote a much longer concurring opinion than the majority opinion. Seven - even seven more - sorry, I misspoke there. It was seven more pages than the majority opinion. And he went off on a tangent of his own. And Justice Thomas, writing for himself, said once again that he doesn't think the First Amendment protects students' speech at all. So this is really more of a 6-3 decision. And like a lot of the opinions so far this year, three of the conservatives joined with the court's three liberals in a somewhat limited, sort of middling decision.

KING: OK. And then there were a couple of other important decisions today. In the time we have left, can you tell us about a few?

TOTENBERG: In a very important case, Justice Alito, who's written numerous opinions dramatically eroding the power of labor unions, did it again today by a straight 6-to-3 liberal-conservative split. He wrote the conservative court's opinion striking down a California law that allowed labor union organizers to meet with farmworkers on their employers' property during lunch or other off hours before or after work, a set number of days a year. The court said that was an unconstitutional taking of the growers' property. And while I haven't read everything, it could throw in doubt a similar law that's a federal law that's been in place for decades and decades - I would think more than a half century - that gives similar rights to labor organizers around the country but under federal law.

And in another decision, the court set out limits for how far police can go without a warrant in pursuing onto a person's property someone who was observed committing a misdemeanor. In this case, it was a guy who was playing loud music while he was (laughter) driving down the highway late at night and was pursued by a policeman up into his own garage. The court said there are no hard-and-fast rules about this kind of thing but that, generally, misdemeanors don't qualify you to go running on to somebody's property if they're not serious.

KING: NPR legal affairs correspondent Nina Totenberg. Thanks, Nina.

TOTENBERG: Thank you, Noel. Transcript provided by NPR, Copyright NPR.