Supreme Court rules for cheerleader accused of obscene and disruptive speech

June 23, 2021 • 12:30 pm

I’m told by reader Ken that a number of important Supreme Court rulings are coming out today, and this appears to be the first. By an 8-1 vote, with Clarence Thomas dissenting (see full opinion below), the court showed near unanimity in ruling that Brandi Levy, a Pennsylvania high school student, had not violated the First Amendment by sending out a Snapchat message when she was off school grounds. Click to read the NYT story:

Ninth grader Levy, upset that she didn’t make the varsity cheerleading squad, put out a short Snapchat message with her middle finger upraised, saying, “Fuck school;” “Fuck softball;” Fuck cheer”; and “Fuck everything.”  Although, like all Snapchat messages, it disappeared on its own, someone took a screenshot and called it to the school’s attention. The school suspended Levy from cheerleading for a year, arguing that her speech caused “chaos” and disrupted the “teamlike environment.”

Levy sued and won in a federal appeals court on the grounds that her speech was made off school grounds and was therefore protected by the First Amendment. (The Court previously ruled that students could be punished if their speech was on school grounds and caused “material and substantial disruption” of school functions.) According to the NYT article, though, there was divergence among the judges about why her speech remained protected:

Though the Third Circuit was united in ruling for Ms. Levy, the judges disagreed about the rationale. The majority announced a categorical rule barring discipline for off-campus speech that seemed to limit the ability of public schools to address many kinds of disturbing communications by students on social media, including racist threats and cyberbullying.

In a concurring opinion, Judge Thomas L. Ambro wrote that he would have ruled for Ms. Levy on narrower grounds. It would have been enough, he said, to say that her speech was protected by the First Amendment because it did not disrupt school activities. The majority was wrong, he said, to protect all off-campus speech.

The Supreme Court has limited students’ First Amendment rights since the Tinker decision in 1969. In the court’s last major decision on students’ free speech, in 2007, for instance, the court sided with a principal who had suspended a student for displaying a banner that said “Bong Hits 4 Jesus.”

In general, though, I count this as a victory for the First Amendment. There was clearly no violation of free speech by Ms. Levy saying “Fuck softball/school/cheer/everything”.  I’m not sure about whether the Court’s new ruling really would protect off-campus speech that could include “racist threats” and “cyberbullying”, for some examples of those behaviors could constitute harassment in the work(school)place.

Her speech, though, was clearly off campus, and disruptive though some may have seen it, is not subject to the school’s authority.

I wonder if she’ll go back to cheerleading, or will make the varsity squad.

Here’s the 8-1 opinion, with only Clarence Thomas dissenting on the grounds that whether this speech was really “off campus” is unclear. You can download the pdf by clicking on the arrow to the right.

Click to access 20-255_g3bi.pdf

24 thoughts on “Supreme Court rules for cheerleader accused of obscene and disruptive speech

  1. It seems to me that schools can have requirements for serving on the cheerleading (or any other extra curricula activity) squad that involve citizenship, scholarship, leadership, and service with consideration of lewd behavior as a violation of good citizenship if that is made clear to all participants at the start of the year. Tinker, if i recall correctly strongly supported political speech in school as the case involved black armbands in protest of the vietnam war, but did not define how far speech could go in a non political direction. As long as the school does not act in an arbitrary and capricious manner and does not abrogate a child’s right to an education, then suspension from an extracurricular activity, but not school, should be ok…as long as these rules were made clear to all students at the start of the school year and not made up by the administration on the fly. I have not yet read all of the facts of the case don’t know what behaviors, if any, the young lady had agreed to in serving as a cheerleader.

    At least those were our student discipline guidelines asi recall them from serving on a local school board from 1988-96.

    1. Sure; I have no problem with the cheer squad deciding that someone who posts “f*ck school” on social media will not be on the squad. Public support for ones’ school is easily argued to be a ‘relevant job criteria’ for being a cheerleader.

      But this ain’t the cheer squad we’re talking about: the Principal suspended her from school. Deprived her of access to education based on the content of her opinion. And that suspension violates her free speech, IMO.

  2. Justice Breyer’s majority opinion inMahoney Area School District v. B.L. is one of those rare Supreme Court opinions that everyone can read themself — a scant (by SCOTUS standards) 10 pages, with nary a footnote to clutter up the prose. It’s a bit short on substantive standards, taking sort of a I-know-it-when-I-see-it-and-this-isn’t-it approach to the type of off-campus high-school speech that might run afoul of First Amendment protection.

    As is his wont, Clarence Thomas marches to the beat of his own distant Gene Krupa in dissent.

  3. SCOTUS also issued its decision in Cedar Point Nursery v. Hassid today, ruling that the California regulation allowing unions to meet with farm laborers at their worksites violates the farm owners’ “property rights.” As should come as a surprise to absolutely no one, the Court divided 6-3 along strict ideological lines, with all six conservatives signing on to Chief Justice Roberts’s anti-organized-labor screed.

    1. That’s a rather biased view of the case. The court overturned a California law that requires agricultural growers to give union organizers access to their property for three hours per day, 120 days per year. Note that this doesn’t mean union organizers who work at the growers, it mandated access by external organizers.

      Nothing prevents those organizers from meeting with employees as they go to work or leave. The decision simply recognizes the right of the property owners to determine who can use it.

      1. I think it’s a strained interpretation of the Fifth Amendment’s Takings Clause.

        The regulation at issue doesn’t involve a physical appropriation of land (as in eminent domain cases), but merely regulates who can gain access to the land for a limited time (during non-business hours) for a very limited purpose (a purpose our government at least used to encourage as the means by which the American working class lifted itself up from peonage).

        I can’t recall the last time a Republican appointee sided with Labor on anything.

        1. It seems quite straightforward to me. The California government was depriving land owners of their power to choose how to use their private property for three hours a day, 120 days a year. That’s clearly a taking in the Fifth Amendment sense.

  4. A most important passage in the opinion is this:

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

    Further on, the Court described this interest as a “strong interest.”

    Teaching the value of free expression, and doing so by protecting it, seems to be, in the Court’s view, one of the things that schools exist for.

  5. Good to see – although as a non-USAian I’m amazed that this case needed the Supreme Court to get involved, given the strong First Amendment protections.

    1. Children, especially at schools, are not given full rights. For example, they are required to go to school or some close substitute.

  6. I still can’t get used to the idea that school administration members feel that they have so much say in what a student does off campus outside of school hours.
    In all the years I went to school, it never even occurred to me to wonder if my actions at home would meet the approval of some vice principal back on campus.

    My company has what I think is an excellent policy. When we are in port, crew members tend to go ashore and whoop it up when that are off duty. Exactly what they do while ashore is not my concern, as long as they are back aboard for their next shift and show up sober.
    It is not terribly rare to hear that a crew member spent the night in jail, almost always for some alcohol-related incident. I honestly don’t care, as long as they get back aboard on time, or have a written agreement with someone else to take over their duties temporarily. I have even on more than one occasion gone ashore on my own off time to see to their release.
    My responsibility or interest in their activities ends when they step off the gangway, and only begins again once they step back on it.

    I suppose there are hypothetical situations where a crew members actions ashore might interfere with our ability to do business in that port. However, their cursing me, the ship, or our company while ashore does not rise to that level. Far from it. One of the main reasons the crew has their own spaces for eating and relaxing is that it gives them a place to complain about the officers out of our hearing.

    I think it would be interesting to hear the rationale and perspective of the event both from the person who made a record of what was intended to be an unrecorded remark to a limited circle of friends on a device not owned by the school, and also from the school administrator who felt that they could use those images to act against the girl, knowing that the statements were not intended to be recorded, and did not take place at school.
    I can picture without much difficulty the kid who tattled that “Brandi said a bad word!”. It is harder for me to imagine the administrator involved and their understanding of civics and constitutional protections.

      1. Variations vis-a-vis the military:

        What shall we do with the armament officer?
        Bash his balls in a Browning breech-lock.

        What shall we do with the company adjutant?
        Take no effing notice of him.

    1. From my own personal perspective, I often wished that my own responsibility for personnel as a junior officer on a U.S. Navy supply ship had ended at the end of the gangway. Years ago I was on an AFS – Auxiliary Fuel and Stores. (Or as a fellow junior officer wit put it on a T-Shirt with fork and knife crossing the bow, “Attack Food Ship – Your Lives or Your Leguemes.”) It irked me to have to go to the downtown San Diego county jail (or anywhere else during my tour of duty), to retrieve a wayward seaman. (Thus Spake the Uniform Code of Military Justice.) I remember his name. While aboard I occasionally wondered who the next sailor was who was going to jerk the wardroom’s string. (My ship was eventually transferred to the Military Sealift Command.) I contemplated going for a mate’s license. (Is your company hiring? 😉 )

      I agree with the ruling. Regarding the young lady’s sentiments about cheerleading and school, I wonder if expressing such sentiments will be SOP for her in the future whenevever she can’t get what she wants, especially a promotion at work.

  7. I wonder if she’ll go back to cheerleading, or will make the varsity squad.

    Of course she won’t. Don’t forget, she failed to make the squad, presumably because she wasn’t good enough.

    Not to mention, after all this, I doubt if any of the other members of the said squad or whoever is in charge of it will want anything to do with her.

Leave a Reply