In an 8-1 decision, the U.S. Supreme Court has ruled in favor of a Pennsylvania teenager in a closely watched free speech case, after the student was suspended from her high school cheerleading squad after posting a series of profane “stories” to her social media Snapchat account. This case reexamined the reach of the First Amendment as it applies to public school students when they are off school grounds.
Plaintiff Brandi Levy tried out for Mahanoy Area High School’s varsity cheerleading squad, and when she did not make it, she memorialized her dissatisfaction by posting two temporary, 24-hour private stories to her Snapchat account with a friend at a local convenience store after school. The first post, which said “F**k school f**k softball f**k cheer f**k everything”, became the basis for her cheerleading coach to suspend her from the squad. Members of the cheer team notified school officials, who suspended Levy from the junior varsity cheerleading squad for the entire upcoming year under a cheer policy requiring students to be respectful, avoid profanity and not speak negatively about the sport. Levy and her family brought the case to district court. Both the district court and the court of appeals sided with Levy, granting her an injunction and nominal damage, but disagreeing with what standard applies to a school’s regulation of off-campus student speech.
The Supreme Court granted review and drew a new line where public schools have the authority to regulate student speech. The Court relied on the 1969 case of Tinker v. Des Moines Independent Community School District, which was a landmark decision by the United States Supreme Court that limited First Amendment rights of students in public schools. That decision established that public schools’ have a special interest in regulating on-campus student speech that “materially disrupts class-work or involves substantial disorder or invasion of the rights of others.” The Tinker standard holds that “[C]onduct by [a] student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is . . . not immunized by the constitutional guarantee of freedom of speech.” Yet Tinker is a fifty-year old case, and as such, it does not address the types of speech we often see from students today – tweets, chats, stories and other social media modalities that reach hundreds of people in a variety of different locations and at different times, depending on when the speaker’s audience of online “friends” check their smartphones or computers. Whereas students at the time of the Tinker decision were engaging in speech during school hours, with and to classmates on school grounds, public school students’ speech today has the potential to “materially disrupt classwork or involve substantial disorder or invasion of the rights of others” even when the student is nowhere near the school and the speech takes place after school hours.
Applying Tinker to present-day issues posed by an increasing reliance on technology to reach our audiences, and specifically noting that threats of online bullying and harassment continue to plague public school students and threaten classrooms, the Supreme Court affirmed the regulatory interests of schools to monitor speech that occurs away from campus. The Court, however, made clear that the burden is much heavier for a school to prove that it has a legitimate interest in regulating speech that occurs off campus.
The Levy Court held that the high school violated Levy’s First Amendment rights when it suspended her from the junior varsity cheerleading squad, and her posts are constitutionally protected speech. Because Levy’s speech took place off campus, the Supreme Court concluded that the Tinker standard was not met, and the school consequently could not discipline Levy for engaging in a form of speech protected under the Constitution. Three characteristics of off-campus speech distinguish schools’ efforts to regulate off-campus speech versus on-campus speech. First, a school and school administrators will rarely stand in loco parentis, or in the disciplinary and protective place of the student’s parents, when a student speaks off-campus. Second, regulations of off-campus speech paired with regulations of on-campus speech include all the speech a student utters during the full 24-hour day, which could mean the student cannot engage in negative speech at all. Third, the school itself has an interest in protecting a student’s unpopular off-campus expressions. The Court notes that America’s public schools are the “nurseries of democracy,” and the free exchange of expression facilitates an informed public opinion and laws that reflect the People’s will. The First Amendment promotes the exchange of ideas and expression, and the Court has made clear that students do not “shed their constitutional rights to freedom of speech or expression,” even “at the schoolhouse gate.”
Additionally, the court found that Levy’s posts did not pose such a disruption to the orderly functioning of the school as to allow the school to regulate her speech. Levy was neither threatening harm nor intending disruption to the cheerleading program, but merely expressing her dissatisfaction in the program. The Tinker court confirmed that, “for… school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
Justice Thomas was the sole dissenting vote. This decision provides some much needed clarity in the realm of student speech as we continue to navigate advancing technology and modes of speech that push previously delineated boundaries.