Law & Courts

U.S. Supreme Court Rules for Cheerleader Who Posted Vulgar Snapchat Message

By Mark Walsh — June 23, 2021 12 min read
Image shows a picture of Brandi Levy in her cheerleading uniform in front of Mahanoy Area High School.
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The U.S. Supreme Court on Wednesday ruled that a school district violated the First Amendment when it punished a student for her vulgar message on Snapchat expressing frustration about school.

The court ruled 8-1 that while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school in this case were not sufficient to overcome Pennsylvania student Brandi Levy’s interest in free expression.

“It might be tempting to dismiss [Levy’s] words as unworthy of the robust First Amendment protections discussed herein,” Justice Stephen G. Breyer wrote for the court in Mahanoy Area School District v. B.L. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

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Members of the Supreme Court pose for a group photo at the Supreme Court in Washington on April 23, 2021.
Members of the Supreme Court pose for a group photo in Washington in April.
Erin Schaff/The New York Times via AP

Breyer went on to say that the court was not endorsing a sweeping ruling by a federal appeals court that the landmark 1969 high court speech decision in Tinker v. Des Moines Independent Community School District categorically did not apply to off-campus speech.

“Unlike the [U.S. Court of Appeals for the] 3rd Circuit, we do 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,” Breyer said. “The school’s regulatory interests remain significant in some off-campus circumstances.”

These include, he said, “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.”

Still, the victory for Levy and student speech was not merely technical or limited to the facts of her case. Breyer spoke in soaring terms about the nation’s schools as “nurseries of democracy.”

“Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it,’” Breyer said.

His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett. Alito filed a lengthy concurring opinion, joined by Gorsuch.

Justice Clarence Thomas was the lone dissenter, saying that “schools historically could discipline students in circumstances like those presented here.”

And he suggested that schools might “have more authority, not less, to discipline students who transmit speech through social media.”

“Because off-campus speech made through social media can be received on campus (and can spread rapidly to countless people), it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation,” Thomas said.

Levy, who is now in college, said that the decision had made her proud.

“The school went too far, and I’m glad that the Supreme Court agrees,” she said in a conference call Wednesday. “I was frustrated, I was 14 years old, and I expressed my frustration the way teenagers do today. 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 single snap would turn into a Supreme Court case, but I’m proud that my family and I advocated for the rights of millions of students.”

The 1,000-student Mahanoy Area School District also claimed a victory, saying in a statement that it felt vindicated by the fact that all nine justices rejected the broad 3rd Circuit rule that Tinker did not apply categorically to off-campus speech.

“The Supreme Court instead enumerated many examples of situations when school districts can regulate off-campus speech and made it clear that its list was not exclusive,” the district’s statement said. “So, although the court upheld the $1 judgment in favor of Ms. Levy, we are very pleased that the court agreed with our arguments about schools’ authority to address off-campus speech under a wide variety of situations.”

A vulgar Snapchat message sent from a convenience, then a federal case

The case involved a Pennsylvania student, Levy, who posted a profanity-laden social media message after she failed to make the varsity cheerleading team as a freshman at Mahanoy Area High School in 2017. Her message on Snapchat saying “f*** school,” “f*** cheer,” and “f*** everything” was posted from a convenience store on a Saturday and came to the attention of her coach, who suspended her from cheerleading for one year.

The Supreme Court was considering how off-campus speech, particularly social media, fits under the Tinker decision.

The Tinker ruling said students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and upheld students who had worn black armbands in school to protest the Vietnam war. Schools could not discipline students for speech that did not substantially disrupt school, the court held.

In Levy’s case, a panel of the 3rd Circuit appeals court, in Philadelphia, ruled in 2020 that Tinker does not apply to “speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”

The Mahanoy school district argued that question of whether Tinker applies to off-campus speech has become especially important in the Internet era because “social media has made it far easier for students’ off-campus messages to instantly reach a wide audience of classmates and dominate the on-campus environment.”

The district also argued in a brief filed that Levy’s Snapchat message “expressed disdain and anger toward the school and cheer team and condemned her coaches’ decision-making about the varsity roster. She plainly targeted her speech at campus.”

The American Civil Liberties Union, which represented Levy, proposed a broad definition of the “school environment,” where school officials would retain authority to discipline student speech. The school environment would include all times when the school is responsible for the student, including on campus or its immediate environs during school hours, at a school-sponsored or -supervised event, on a school-sponsored website, while en route to or from school, or even from students’ own homes if they are engaged in school-sponsored remote learning or using a school laptop issued for school work.

At oral arguments in April, several justices sympathized with Levy and appeared hesitant to extend Tinker to off-campus student speech. But other justices appeared concerned about the breadth of the 3rd Circuit’s rule that Tinker categorically did not apply to off-campus speech, and those justices seemed to want to ensure that schools could respond to threats and bullying that originated off campus.

Breyer suggests three features of off-campus speech give schools a ‘diminished’ interest in regulating it.

Breyer, at the oral argument, had said he was wary of using this case to write “a First Amendment treatise.” And, indeed, his opinion left much open.

“Particularly given the advent of computer-based learning, we hesitate to determine precisely which of many school-related off-campus activities belong on” a list of exceptions to a broad rule that Tinker generally does not apply off-campus, he said.

“We leave for future cases to decide where, when, and how” three features of off-campus speech “mean the speaker’s off-campus location will make the critical difference,” Breyer said.

First, when it comes to off-campus speech by students, schools are rarely acting in loco parentis, or in the place of the parents, he said. “Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility,” he said.

Second, letting schools categorically regulate off-campus speech would mean that student expression was subject to school authority 24 hours a day, Breyer said.

“That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all,” he said. “When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.”

Third, the school itself has an interest in protecting a student’s unpopular expression, especially when it takes place off campus, Breyer said. This is where he referred to school as “nurseries of democracy” and added that “our representative democracy only works if we protect the ‘marketplace of ideas.’”

“Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished,” Breyer said.

When it came to Levy’s vulgar Snapchat message, Breyer said it may have been crude, but it was “the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”

And while schools have an interest in teaching good manners and punishing vulgar language directed at the school community, that interest was weakened by the fact that Levy spoke outside of school and on her own time, Breyer said.

“Moreover, the vulgarity in [Levy’s] posts encompassed a message, an expression of [Levy’s] irritation with, and criticism of, the school and cheerleading communities,” he said. “[T]he school’s interest in teaching good manners is not sufficient, in this case, to overcome [Levy’s] interest in free expression.”

Both sides put a positive spin on the court’s ruling

David D. Cole, the legal director of the American Civil Liberties Union, who argued the case for Levy, lauded Breyer’s view that “democracy rests on people learning as students the importance of free speech.”

Students across the country “can breathe easier today,” Cole said, because they don’t have to worry that a school principal will “look over their shoulder, read their snaps and decide that what they say is controversial or offensive and punish them for it.”

Francisco M. Negrón Jr., the general counsel of the National School Boards Association, which along with other school administrator groups filed a brief in support of the Mahanoy district, said he was “pretty happy with the decision.”

“What we were concerned with was that the court might do away with our ability to regulate speech when we need to,” he said, adding that the court made clear that there was still an ability to regulate some off-campus speech

“This allows us to be able to address speech that happens outside school when it is harmful to the school setting or when it is harassment or attacking teachers,” Negrón said.

In a concurrence and a dissent, justices expand on their thinking

Alito, in his concurrence joined by Gorsuch, said he [agreed with Breyer’s opinion but] wanted to help ensure that the court’s holding “not be misunderstood.” While limited in-school restrictions of student speech are essential to the operation of a public school system, Alito said, there are broad categories of off-campus speech that would not be subject to regulation by the school.

“This is student speech that is not expressly and specifically directed at the school, school adminstrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations,” Alito said.

He said that like the majority he was not prepared to set out a clear definition of off-campus speech that may be regulated, but it may include threats, speech that derides or criticizes administrators or other staff members, and bullying.

Most administrators, teachers, and coaches are dedicated to the best interests of students, Alito said, but some will get carried away and overreact the way those in Mahanoy did.

“If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory,” he said.

Thomas, in his dissent, used asterisks to mask the vulgarity Levy had used in her Snapchat (while Breyer had spelled the word out.) He said there was some 150 years of legal history supporting the coach’s authority to discipline Levy for her vulgar message.

He cited the 1859 decision by the Vermont Supreme Court in Lander v. Seaver, which upheld the discipline of a student who had used disrespectful language while walking through the town of Burlington with some friends. (The group came upon the schoolmaster, and student Peter Lander referred to him as “old Jack Seaver.” He was whipped with a rawhide as punishment.)

The opinion became influential in law treatises and school manuals, Thomas noted. And many courts followed the teaching of the Lander decision, which Thomas summarized as: “A school can regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the school, its faculty or students, or its programs.”

“If there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it,” Thomas said. “I would thus apply the rule.”

When it comes to the modern-day question of regulating student speech on social media, Thomas said the location of such speech is a much trickier question than the majority acknowledged.

“Where it is foreseeable and likely that speech will travel onto campus, a school has a stronger claim to treating the speech as on-campus speech,” Thomas said, though he agreed that Levy’s Snapchat message was properly characterized as off-campus.

The majority “foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the court’s opinion today means,” he said.

Brandi Levy explains how she learned about the court’s decision in her case

Levy said on the conference call that she had been attuned to the fact that a decision in her case was due to come down any time during these last weeks of June. But on Wednesday morning, she was otherwise occupied when she learned of the ruling.

“I was getting a bunch of text messages congratulating me,” she said. She took to Twitter to learn more. But she did not immediately feel the urge to enter her Snapchat app and post her reaction.

“I didn’t take to any social media right away,” Levy said. “I immediately called my mom and told my parents.”

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