WASHINGTON >> In a freewheeling two-hour argument on free speech in the age of social media, the Supreme Court seemed inclined to reject an appeals court’s sweeping ruling that the First Amendment does not allow public schools to punish students for what they say outside school grounds. Instead, the justices seemed to favor a modest decision that would leave many difficult questions unanswered.
The case concerned Brandi Levy, a Pennsylvania high school student who expressed her dismay over failing to be chosen for the varsity cheerleading squad in a colorful Snapchat message.
The message, sent on a Saturday from a convenience store to about 250 people, included an image of Levy and a friend with their middle fingers raised, along with a string of words expressing the same sentiment. Using a swear word four times, Levy objected to “school,” “softball,” “cheer” and “everything.”
Although Snapchat messages are meant to be ephemeral, another student took a screenshot of this one and showed it to her mother, a coach. The school suspended Levy from cheerleading for a year, saying the punishment was needed to “avoid chaos” and maintain a “teamlike environment.”
David Cole, a lawyer with the American Civil Liberties Union, which represents Levy, told the justices that she “was punished for merely expressing frustration with a four-letter word to her friends outside of school on a weekend.”
“Her message may seem trivial,” he said, “but for young people, the ability to voice their emotions to friends without fear of school censorship may be the most important freedom of all.”
Much of the argument concerned the meaning and scope of the key precedent, from 1969, Tinker v. Des Moines Independent Community School District. In it, the Supreme Court allowed students to wear black armbands to protest the Vietnam War but said disruptive speech, at least on school grounds, could be punished.
Lisa Blatt, a lawyer for the school board in Pennsylvania, argued that the same standard should apply to off-campus speech. “The internet’s ubiquity, instantaneous and mass dissemination, and potential permanence make the speaker’s location irrelevant,” she said. What should matter, she said, was whether “the student targeted both the school audience and a school topic.”
Cole responded that students’ speech away from school should be governed by general First Amendment principles.
“You don’t need the blunt instrument of Tinker to deal the problems of off-campus behavior that might have an effect in school because the First Amendment doesn’t stand in the way,” he said. “It permits regulation of threats. It permits regulation of bullying, harassment, cheating, as long as those are carefully confined by the existing First Amendment doctrine.”
He added what appeared to be a significant concession, though on an issue that he said was not before the court. Schools may be able to impose conditions, including ones limiting off-campus speech, he said, on students who voluntarily choose to join sports teams.
“Teams have quite a bit of leeway in terms of imposing conditions on players as long as they’re set out in advance and the players agree to abide by them,” he said.
Some justices said the school had overreacted to Levy’s post. “She used swear words, you know, unattractive swear words, off campus,” Justice Stephen Breyer said.
“Did that cause a material and substantial disruption?” he asked. “I don’t see much evidence it did. And if swearing off campus did, I mean, my goodness, every school in the country would be doing nothing but punishing.”
Justice Brett Kavanaugh, himself a basketball coach, said the punishment imposed on Levy did not fit her offense.
“She’s competitive, she cares, she blew off steam like millions of other kids have when they’re disappointed about being cut from the high school team,” he said. “I mean, a year’s suspension from the team just seems excessive to me.”
Justice Sonia Sotomayor asked Blatt, a little incredulously, “You’re punishing her here because she went on the internet and cursed?”
Blatt responded that Levy had “berated her coaches, the sport and other teammates” in connection with “an extracurricular program where she consented to an extra degree of regulation because she’s a school ambassador.”
That point resonated with some justices, who said the fact that Levy’s punishment was tied to her voluntary participation in an extracurricular activity made it more acceptable.
“Is there a difference in how we should treat team members versus just students?” Justice Clarence Thomas asked Malcolm Stewart, a lawyer for the federal government arguing in support of the school district.
Stewart said the distinction was important. “The sanction that was actually imposed sent the message that this was unacceptable speech from a member of the team,” he said. “People who participate in projects or organizations that have as part of their raison d’etre cooperation, team spirit, mutual support, they may have to accept limitations on their speech.”
Levy’s sweeping victory in the 3rd U.S. Circuit Court of Appeals, in Philadelphia, did not seem likely to stand. But the justices struggled to articulate a legal principle that would separate protected speech about politics and religion on the one hand from bullying and harassment on the other.
“There has to be a clear rule,” said Justice Samuel Alito.
Kavanaugh, seeming to express the views of several members of the court, said “we probably can’t write a treatise here and shouldn’t write a treatise here and can’t foresee all the things that could arise.”
Instead, he proposed a narrow ruling in the case, Mahanoy Area School District v. B.L., No. 20-255. What if, he asked, “we just simply said the First Amendment does not categorically prohibit public schools from disciplining students for speech that occurs off campus, period?”
He added that the justices could also tell lower courts that “it may matter that the situation here involves a team, not just the school more broadly.”