The Supreme Court Is “Frightened to Death” by the Case of a Foul-Mouthed Cheerleader by Mark Joseph Stern

 

In 2017, Brandi Levy posted a message on Snapchat that would lead her all the way to the Supreme Court. The Pennsylvania high school student and junior varsity cheerleader was disappointed that she did not make the varsity cheerleading squad at her public school. While hanging out at the Cocoa Hut, a local convenience store, Levy snapped a picture of herself shooting the bird with the caption: “Fuck school fuck softball fuck cheer fuck everything.” The photo was initially seen by, at most, her 250 friends on Snapchat. But one of those friends was the daughter of the cheerleading coach, who showed it to her mom. The coach, grievously offended, told Levy that she would be suspended from the team for the rest of the year. (For what it’s worth, Levy made varsity the next year.)

Versions of this story probably play out at schools across the country all the time. But this occasion was different, because Levy did not simply accept her punishment; instead, she filed a federal lawsuit alleging a violation of her First Amendment rights. This, too, is not that unusual: The great American trait of litigiousness starts early, and students sue their schools with some frequency. 

By punishing Levy, however, the cheerleading coach triggered a vexing and contentious debate: Can public schools penalize students for speech that occurs off campus? Remarkably, the Supreme Court has never answered this question—which is a problem, because today, school officials can access a huge amount of off-campus speech thanks to social media, and they often try to censor it. SCOTUS took up Levy’s case to decide, at long last, whether public schools can actually abridge their students’ free expression beyond the schoolhouse gate. But after oral arguments on Wednesday, they sound unlikely to provide a clear answer.

The history of school speech at the Supreme Court is short and mostly depressing. In 1969, the court famously held in Tinker v. Des Moines that students have First Amendment rights at public schools. Tinker is basically impossible to disagree with: The plaintiffs were a group of students who were suspended for wearing black armbands at school to protest the Vietnam War; they sued, and the Supreme Court found that the school had violated their free speech rights. 

The court explained that schools may only censor students when the speech at issue is likely to cause “substantial disruption of or material interference with school activities.” In the years since, though, the Supreme Court has substantially weakened protections for student speech, allowing schools to punish and silence young people for disfavored expression. At the bottom of this downward slope was 2007’s Morse v. Frederick, in which the conservative justices let a school penalize a student for holding a banner that read “BONG HITS 4 JESUS” at a school-supervised event.

None of these decisions addressed speech, like Levy’s, that occurred outside a school’s supervision. In the absence of such guidance, lower courts have divided, though most have held that out-of-school expression may be penalized if it could cause “substantial disruption” in school later on. In Levy’s case, the 3rd U.S. Circuit Court of Appeals rejected this approach, declaring that it would “sweep in too much speech and distort Tinker’s narrow exception into a vast font of regulatory authority.” The 3rd Circuit declared that Tinker and its exception for disruptive speech do not apply off campus. Accordingly, it held that Levy’s school had violated her constitutional rights.

On Wednesday, a majority of the Supreme Court seemed to doubt the 3rd Circuit’s categorical rule. It was not apparent, though, if the justices have any better ideas. This case is certainly easy for Justice Clarence Thomas, who believes that students have virtually no free speech rights in or outside of school because, according to the justice’s own historical research, minors had no such rights when the First Amendment was ratified in 1791. 

But setting Thomas aside, this dispute may not divide the court along ideological (or partisan) lines like Morse v. Frederick did in 2007. Over the past 14 years, the suppression of student speech has evolved from liberal concern to a GOP talking point. Republican politicians now constantly complain about woke cancel culture stifling speech on campus, at both universities and high schools. They have come to understand that deference to school censorship may suppress speech that is conservative or religious.

This evolution is reflected in the amicus briefs filed on Levy’s behalf. A slew of right-wing organizations—such as the Becket Fund for Religious Liberty, Alliance Defending Freedom, the Life Legal Defense Foundation, and Americans for Prosperity—weighed in on Levy’s side. (They were joined by more than 30 progressive groups, including the American Civil Liberties Union, which represents Levy.) Conservative civil rights attorneys understand that if students can be disciplined for posting F-bombs on Snapchat, they can also be disciplined for anti-abortion Instagram posts that, in the eyes of school administrators, might create “substantial disruption” in the classroom.

Justice Samuel Alito reflected this concern during arguments. The justice asked Lisa Blatt, who defended the school, whether a student could be punished for refusing to use a transgender classmate’s proper name and pronouns. (Blatt said, in short, maybe.) But Alito’s deeper fear was that the court would muddle this issue more than it already has. “I’m really worried about how that is going to be implemented,” he told Blatt. “If schools are going to have any authority under Tinker outside of school, there has to be a clear rule.” Justice Sonia Sotomayor was similarly desperate for a straightforward rule that would lead to consistent and fair enforcement.

“I’m told by my law clerks that among certain populations … how much you curse is a badge of honor,” she told Blatt. “That would surprise many parents. However, if it is true, where do we draw the line with respect to it targeting a school? Kids basically talk to their classmates. Most of their conversation is about school. Most of their exchanges have to do with their perceptions of the authoritarian nature of their teachers and others. And why isn’t this any different than just that the coach of this team took personal offense?”

Justice Brett Kavanaugh, who coaches girls’ basketball, spent much of his colloquy with Blatt condemning Levy’s school for punishing her so severely. “As a judge and maybe as a coach and a parent too, it seems like maybe a bit of overreaction by the coach.” He told Blatt, continuing:

So my reaction when I read this, 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 or not being in the starting lineup or not making all league. … It is so important to their lives, and coaches sweat the cuts, and it guts coaches to have to cut a kid who’s on the bubble, and good coaches understand the importance and they understand the emotions. So maybe what bothers me when I read all this is that it didn’t seem like the punishment was tailored to the offense.

This monologue may be a bit of a tangent, but it’s not wrong, and it touches on something important: Levy’s speech was not vulgar drivel, as Alito later implied. She expressed anger about her stymied dreams; it wasn’t a war protest, but it wasn’t meaningless, either. Kavanaugh’s point is a nuanced one. And it is hard to carve a one-size-fits-all doctrine out of a case with such subtleties.

“Everyone seems to want some rule,” Justice Stephen Breyer complained. He admitted to David Cole, who represented Levy: “I’m frightened to death of writing a standard.” Chief Justice John Roberts asked whether it was even possible to draw a line between on- and off-campus speech. “If a text or a Snap that you send, you send from the park and it’s read in the cafeteria, is that off campus or on campus?” he asked Cole. Justice Elena Kagan brought up cases involving bullying and harassment—a real concern among states that cautioned the court not to hobble schools’ ability to protect students from threats, intimidation, and violence. Would a decision for Levy imperil anti-bullying laws?

If the court can cobble together five votes for a majority decision in this case, it will be a small miracle. The justices have reasonable concerns, and no consensus emerged on Wednesday over a test that could incorporate them all into First Amendment law. Most of the court seemed to think Levy should win but feared a decision in her favor might tie schools’ hands, preventing them from enforcing discipline or protecting vulnerable students. Say what you will about Thomas, but at least his absolutist opposition to students’ free speech offers clarity. In their quest for some middle ground, the rest of the justices may devise new rules that make everyone else wish the court had kept its mouth shut.

(Slate)