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Supreme Court sides with high school cheerleader in free speech dispute over profane Snapchat rant

Brandi Levi outside Mahanoy Area High School in Pennsylvania.
Brandi Levi outside Mahanoy Area High School in Pennsylvania.Danna Singer/The Washington Post

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

The court ruled 8 to 1 that the punishment was too severe, although it declined to say schools never have a role in disciplining students for 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 the initials of the minor in question.

“But sometimes it is necessary to protect the superfluous in order to preserve the necessary,” he wrote.

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Brandi 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.

It was supposed to disappear in 24 hours, but her cheerleading coaches were alerted to it, and Levy was suspended from cheerleading for a year — but not from school.

In a statement Wednesday, Levy said: “Young people need to have the ability to express themselves without worrying about being punished when they get to school. I never could have imagined that one simple snap would turn into a Supreme Court case, but I’m proud that my family and I advocated for the rights of millions of public school students.”

An appeals court had said that schools had no authority over student speech that occurs off campus. But Breyer said the Supreme Court was not willing to go that far.

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“We do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent ... substantial disruption of learning-related activities or the protection of those who make up a school community,” Breyer wrote.

But Levy’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.”

Justice Clarence Thomas was the lone dissenter.

The American Civil Liberties Union, which argued the case on Levy’s behalf, cheered the ruling. David Cole, the ACLU’s legal director, called the outcome “a huge victory for the free speech rights of millions of students” who attend public school.

“The school in this case asked the court to allow it to punish speech that it considered ‘disruptive,’ regardless of where it occurs,” Cole said in a statement. “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.”

Wednesday’s decision was the court’s latest attempt to clarify the free speech rights of the nation’s public school students, and First Amendment experts promptly declared that although the ruling was narrow, it was significant.

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“It marks the first time in more than five decades — all the way back to the Vietnam era — that a high school student has prevailed in a free speech case at the Supreme Court,” said Justin Driver, a Yale law professor and author of “The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.”

“Given the range of plausible outcomes, public school students should be dancing in the streets due to this decision,” Driver said.

In 1969, the Supreme Court famously held in Tinker v. Des Moines Independent Community School District that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

But it also held that schools have broader authority over students than the state generally does when restricting speech, and that authorities can discipline students for on-campus speech that causes or is likely to cause “material and substantial” disruption of school functions. (The court ruled 7 to 2 for Mary Beth Tinker because, it said, the black armband she wore to protest the Vietnam War was not disruptive.)

In the half-century since, the Supreme Court’s decisions have been few and lean toward school administrators. The justices have upheld school disciplinary action regarding lewd speech by students at school events, a student newspaper that operated at the direction of school officials, and a nonsensical sign with a seemingly pro-marijuana message — “Bong Hits 4 Jesus” — held by a student at a school activity.

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Breyer said a school’s ability to discipline students does not disappear just because the speech is off campus.

“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” are all areas where a school’s “regulatory interests remain significant,” Breyer wrote.

But he said courts considering such cases in the future should remember they rarely stand in place of parents regarding off-campus speech, and that monitoring student speech 24 hours a day would give students little room for expression.

Also: “The school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus,” Breyer wrote. “America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the ‘marketplace of ideas.’”