By Robert Freeman, Proskauer
Whether foreseeable or ironic, the impassioned words (or F-bombs) of a dejected junior varsity cheerleader recently brought a rather important First Amendment question before the Supreme Court. That is, whether a public school can lawfully remove a student from an extracurricular activity for profanity-laden social media posts transmitted to fellow students off school grounds on a Saturday. By a vote of 8 – 1, the Court upheld a Third Circuit majority ruling that the defendant Mahanoy Area High School’s decision to suspend a then 14-year-old, plaintiff Brandi Levy (“Levy”), for an expletive-loaded rant on social media expressing her irritation with the school’s cheerleading team violated her right to free expression. (Mahoney Area School Dist. v. B.L., No. 20-255, 594 U.S. ___ (June 23, 2021)).
In 2017, Levy came up short in try-outs for her Pennsylvania high school’s varsity cheerleading team, landing on the JV team. Clearly unhappy with the decision, that weekend she turned to social media to gripe while in a local convenience store located off school grounds. However, as the Court noted, she didn’t voice her frustration “with good grace”; instead, she logged into social media to make several posts, including one rather un-cheery image of her and a friend flipping the bird, with a caption that read: “F– school, F– softball, F– cheer, F– everything.” Levy’s posts on an ephemeral messaging app were designed to be viewed by her social media “friend” group and disappear after a short time. However, Levy’s cathartic posts didn’t quite disappear from memory, as one recipient took a screenshot of Levy’s rants and surreptitiously shared it with coaches and school administration. The result was that Levy was suspended from the cheerleading squad for a year.
Not to be defeated, Levy and her parents filed suit against the school in Pennsylvania district court. With the First Amendment issues up in the air, Levy stuck the dismount. The District Court found that Levy’s statements were constitutionally protected by the First Amendment and granted Levy’s request for an injunction ordering the school to reinstate Levy to the cheerleading squad because her posts did not cause substantial disruption at the school, citing the landmark Tinker precedent that held that students do not “shed their constitutional rights to freedom of speech or expression,” even “at the school house gate,” and that a public high school could not constitutionally prohibit a peaceful student political demonstration consisting of “pure speech” on school property during the school day. Yet, in Tinker, the Supreme Court had stated that schools have a special interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
On appeal, a Third Circuit panel affirmed the district court’s decision but found Tinker not applicable to this case because Levy’s speech took place off campus and thus the school could not discipline her for engaging in a form of free speech. The school district then filed a petition for certiorari, asking the Supreme Court to decide whether the Tinker standard “applies to student speech that occurs off campus.”
Refusing to draw a bright line, the majority stated that it did 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, as the school’s regulatory interests “remain significant in some off-campus circumstances.” While the Court declined to outline a precise list of school-related off-campus activities that could be properly regulated by a school to prevent substantial disruption or protection of the school community, Justice Breyer did note that, generally speaking, the leeway the First Amendment grants to schools in light of their special characteristics is “diminished” when it comes to off-campus protected speech.
Ultimately, the Court ruled that Levy’s statements, albeit vulgar, were protected speech. The Court found that because the posts were made outside of school hours and off school grounds, sent to a targeted audience, and did not specifically mention the school’s name or target a member of the school community, and since the school’s interest in teaching good manners and its evidence of disruption or loss of team morale was unconvincing, the posts at issue did not create a substantial interference that would overcome Levy’s right to free expression under Tinker.
As this case showed, beyond the (potential) disturbance a JV cheerleader may have caused with a less-than-spirited post about her school lies the constitutional right to free speech. In closing, Breyer puts aside the crude speech and becomes a cheerleader for team SCOTUS on the importance of First Amendment rights: “[W]e cannot lose sight of the fact that, on what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.”
