Supreme Court rules for Pennsylvania cheerleader in school free speech case

Key Points
  • The Supreme Court ruled that a Pennsylvania high school violated the First Amendment rights of a cheerleader by punishing her for using vulgar language that criticized the school on social media.
  • The 8-1 opinion upheld lower court rulings against Mahanoy Area High School's decision to suspend Brandi Levy from her cheerleading squad over two Snapchat posts she sent while off school grounds.
  • Justice Clarence Thomas dissented in the case, seen as a major challenge to free speech restrictions imposed on students for off-campus remarks.

In this article

Microphones set up in front of the U.S. Supreme Court building in Washington, D.C., U.S., on Tuesday, Nov. 10, 2020.
Stefani Reynolds | Bloomberg | Getty Images

The Supreme Court ruled Wednesday that a Pennsylvania high school violated the First Amendment rights of a cheerleader by punishing her for using vulgar language that criticized the school on social media.

The 8-1 opinion upheld lower court rulings against Mahanoy Area High School's decision to suspend then-student Brandi Levy from her junior varsity cheerleading squad for one year over two Snapchat posts she sent while off school grounds.

The justices had weighed whether a 1969 Supreme Court ruling, which held that public schools have the ability to regulate certain speech, applied in a case where the speech did not occur on campus.

Snap rallies after SCOTUS rules schools can't punish off-campus speech

In its decision Wednesday, the Supreme Court said "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."

"The school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus," because "America's public schools are the nurseries of democracy," wrote Justice Stephen Breyer, who authored the majority opinion.

Justice Clarence Thomas, who turned 73 on Wednesday, dissented.

Levy said, in a statement, "The school went too far, and I'm glad that the Supreme Court agrees."

"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," Levy said.

"I never could have imagined that one simple snap would turn into a Supreme Court case, but I'm proud that my family and I advocated for the rights of millions of public school students."

Brandi Levy, a former cheerleader at Mahanoy Area High School in Mahanoy City, Pennsylvania, poses in an undated photograph provided by the American Civil Liberties Union.
Danna Singer /ACLU | VIA REUTERS

Levy, whose name was abbreviated "B.L." in court filings, as a high school sophomore in May 2017 failed to make her school's varsity cheerleading team, but won a place on the junior varsity squad.

While at a Cocoa Hut convenience store, she posted two messages on Snapchat venting her frustration from failing to make varsity, and for failing to obtain the position she wanted on the school's softball team.

"F--- school f--- softball f--- cheer f--- everything," she wrote in the first Snap, which showed an image of Levy and a friend with their middle fingers raised.

The second image included a caption, which read, "Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn't matter to anyone else?" That post also showed an upside-down smiley-face emoji.

The messages were flagged to the Mahanoy City school's cheerleading coaches and its principal, who determined they violated the rules and moved to suspend Levy from the squad for the upcoming year.

The Supreme Court's opinion noted that the 3rd Circuit Appeals Court had ruled for Levy by reasoning that the 1969 decision — Tinker v. Des Moines Independent Community School District — "did not apply because schools had no special license to regulate student speech occurring off campus."

But the Supreme Court on Wednesday did not endorse that view.

Instead, it found that, "While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B.L.'s interest in free expression in this case."

Breyer wrote that there were three features of off-campus speech by students that affected a school's ability to regulate it, as opposed to speech on school grounds.

The first feature, according to the court, is that a school rarely stands "in loco parentis" — in place of parents — when a student is off campus.

His second feature is that schools have a "heavy burden" to justify regulating speech off campus, since they otherwise would technically be able to intervene in what a student says during the full 24-hour day.

The third feature, Breyer wrote, is that as "nurseries of democracy," schools should have an interest in protecting unpopular expression, "especially when the expression takes place off campus."

David Cole, the legal director of the American Civil Liberties Union, who argued for Levy's case before the Supreme Court, said, "Protecting young people's free speech rights when they are outside of school is vital, and this is a huge victory for the free speech rights of millions of students who attend our nation's public schools."

"The school in this case asked the court to allow it to punish speech that it considered 'disruptive,' regardless of where it occurs," Cole said in a statement. "If the court had accepted that argument, it would have put in peril all manner of young people's speech, including their expression on politics, school operations, and general teen frustrations."

"The message from this ruling is clear — free speech is for everyone, and that includes public school students," Cole said.

However, the Mahanoy Area School District said it was actually "pleased with and vindicated by today's Supreme Court decision."

"The School District unanimously won the issue upon which it sought Supreme Court review: all 9 Justices rejected the Third Circuit's conclusion that school districts lack authority to regulate off-campus speech," the district said in a statement sent to CNBC by its lawyer, Lisa Blatt.

"The Supreme Court held that it does 'not agree with the reasoning of the Third Circuit,' " the statement said. " 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."

" 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.  This decision is an important vindication of schools' authority to protect students and staff and to fulfill schools' educational missions."

Thomas, in his dissent, wrote that "the majority fails to consider whether schools often will have more authority, not less, to discipline students who transmit speech through social media."

Thomas explained that since speech made through social media can be seen and shared on campus, "it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation."

He also wrote that the majority failed to explain why it breaks from a prior rule that schools can regulate off-campus speech "so long as it has a proximate tendency to harm the school, its faculty or students, or its programs."

The "foundation" of the majority's ruling "is untethered from anything stable," Thomas wrote, "and courts (and schools) will almost certainly be at a loss as to what exactly the Court's opinion today means."