Cheers and swears: How a cheerleader’s F-bombs strengthened the First Amendment

The best part of Justice Breyer’s opinion was the reminder from the nation’s highest court about the importance of teaching and practicing constitutional principles in our schools.

Brandi Levy, outside of Mahanoy Area High School in Mahanoy City, Pa., had expressed her dismay on Snapchat over not making the varsity cheerleading squad. The Supreme Court on Wednesday ruled that a Pennsylvania school district had violated the First Amendment by punishing a student for a vulgar social media message sent off school grounds.DANNA SINGER/NYT

At a time when it seems like our democracy is coming apart at the seams, it’s nice to know that the Constitution is still strong enough to protect a student who dropped a few F-bombs in a convenience store.

So declared the Supreme Court Wednesday when it ruled in favor of Brandi Levy, a former Pennsylvania high school student whose profane Snapchat rant after failing to make the varsity cheerleading team fell flat with school officials, but whose resulting legal challenge launched her into the history books.

Talk about “Go, fight, win!”

The case had all the makings of a divisive blockbuster, pitting the First Amendment rights of students to behave, frankly, as moody high school students often do, against the interest of school officials in having the ability to punish bad behavior that threatens to disrupt the educational environment. Would the Supreme Court trample the First Amendment protections of young people? Or would the court impose a sweeping new standard that hamstrings the efforts of teachers and administrators to stop cyberbullying or other threatening behavior? Were we on the verge of yet another constitutional crisis?

In a rare Washington, D.C., development, common sense — delivered by Justice Stephen Breyer in an 8-1 ruling — saved the day.

The court ruled that school officials violated Levy’s First Amendment rights when they kicked her off the junior varsity cheerleading squad after being alerted to social media posts she made in an off-campus convenience store. In one image, she and a friend had displayed their raised middle fingers, and a caption repeatedly used an expletive to express their displeasure with “[ . . . ] school [ . . . ] softball [ . . . ] cheer [ . . . ] everything.”

Breyer held firm to the legal maxim that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

On the other hand, he underscored that school officials are empowered to regulate students’ nasty language when it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” That license doesn’t “disappear when a school regulates speech that takes place off campus,” Breyer wrote. So the fact alone that Levy posted her Snapchat expletives while in the local Cocoa Hut doesn’t render her words constitutionally untouchable.

Schools have limits too, though. First of all, Breyer reasoned, these kids have parents or guardians outside of class, and school officials can’t substitute themselves in that role just because they may not like the saltiness of the language they use. Also, schools shouldn’t be in the business of policing student speech round the clock.

But most notably, Breyer said schools should serve as protectors, not violators, of students’ First Amendment rights.

“America’s public schools are the nurseries of democracy,” wrote Breyer. “Our representative democracy only works if we protect the ‘marketplace of ideas.’ This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection.”

Full disclosure: I too was a high school cheerleader. Though the only time I remember hurling an expletive is when a poorly executed dive-roll left me with a fractured coccyx and, though I wasn’t disciplined for it, I was nonetheless rooting for Levy.

But the best part of Breyer’s opinion was the reminder from the nation’s highest court about the importance of teaching and practicing constitutional principles in our schools. Too frequently in Washington, the Constitution is in the eye of the beholder. Elected officials often seem to understand only the import of the foundational legal document in segmented bits, often painted as in opposition to one another based on one’s ideological bent. The First Amendment’s religious freedoms are set in opposition to the 14th Amendment’s Equal Protections. The Second Amendment’s gun rights are treated as superior to the voting protections enshrined in the 15th, 19th, and 24th Amendments.

Leave it to Breyer — someone at the center of what progressives see as another constitutional crisis, lest he not retire soon enough for President Biden to install his replacement before Republicans regain Senate control and block that effort — to take a matter-of-fact approach. Students can have their constitutional rights and administrators can keep their classrooms safe too. And both can be done in the service of democracy.

If only all of Washington could be so reasonable.