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Constitutional Law

SCOTUS Gives Students Big Win in 1st Am. Case

The Supreme Court ruled in favor of a former high school cheerleader who argued that she should not be punished by her public school for posting a profanity-laced caption on Snapchat when she was off school grounds. The case involving a Pennsylvania teenager was closely watched to see how the court would balance the free speech rights of public school children and the concerns of schools over off-campus and online speech that could amount to a disruption of the school’s mission or rise to the level of bullying or threats.

“Fuck school fuck softball fuck cheer fuck everything” Brandi Levy, then 14, wrote in 2017. Hardly rising to the level of “Give me liberty or give me death” or of Maya Angelou, it is typical 14 year old talk. Levy was reacting to the fact that as a junior varsity cheerleader she had failed to get a spot on the varsity squad at Mahanoy Area High School in Mahanoy City, Pennsylvania. She posted the phrase on her Snapchat while she was off school grounds and only to her circle of friends. When school officials learned of the outburst, Levy was suspended from the JV team for having violated school rules. But her lawyers sued, alleging the school had violated her freedom of speech. Levy is now 18 and a freshman at Bloomsburg University.

Last time I told a teacher to “Fuck off” I did not end up here

The 8-1 majority opinion was written by Justice Stephen Breyer: “It might be tempting to dismiss (the student’s) words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary,” Breyer wrote.

SCOTUS has previously dealt with the issue of a public school’s right to discipline student’s for speech. In Tinker v. Des Moines, 393 U.S. 503 (1969), 13 year old Mary Beth Tinker led a protest of the Vietnam War with a few other students by wearing a black armband to school. They sued after they were suspended by the school. The Court held students have free speech rights in school and for officials to justify censoring speech, they “must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,” that the conduct that would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”

But what about speech that occurs off-campus? SCOTUS had to find a balance between a person’s right to expression and the school’s need to avoid disruption. Here, there was no evidence that the statement caused any disruption at the school. Breyer also noted that the school itself should be interested in promoting the speech rights of its students. Breyer said that the decision does not mean that ALL off-campus speech cannot be punished (as the lower courts had held).

Instead, he analyzed only the speech in this case, allowing that while the cheerleader’s post were “crude” they “did not amount to fighting words.” He said that while she used “vulgarity” her speech was not “obscene.” In addition, her post appeared “outside of school hours from a location outside of school” and they did not target any member of the school community with “abusive” language nor did they pose an “imminent threat of harm.” (I italicized those words as they are the types of speech SCOTUS has said can be regulated). Breyer added that Levy used her own personal cellphone and her audience consisted of a private circle of Snapchat friends. Breyer said “these features of her speech” diminish the school’s interest in punishing her.

Thomas dissented taking a broader approach, writing that students like Levy “who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs . . .. “For example, a profanity-laced screed delivered on social media or at the mall has a much different effect on a football program when done by a regular student than when done by the captain of the football team. So, too, here,” Thomas wrote.

But there was no evidence pf any effect on the school at all and Breyer’s decision pretty much says that if there was, the school would have an ability to punish a student for it. Breyer, for example, acknowledged that Levy used “unattractive swear words,” but he questioned whether it caused a “material and substantial disruption” to the school. “I don’t see much evidence it did,” he said, noting that teenagers, when talking to each other, often swear when they are off-campus. “I mean, my goodness, every school in the country would be doing nothing but punishing,” Breyer said. Too true.

While this may seem like a small victory as it appears to be limited to its facts, SCOTUS took up the case because thee creation of the Internet and social media has vastly changed how students can “speak.” Recognizing that school’s have an interest in disciplining students for off-campus behavior, SCOTUS has said that can occur only if there is proof of some on-campus disruption.

Future cases can be expected to be brought as students will likely continue to test the limits of this ruling.

You can find the decision Here: https://www.supremecourt.gov/opinions/20pdf/20-255_g3bi.pdf

Follow me on Twitter at @oscarmichelen

email me at omichelen@cuomollc.com

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