Let’s All Cheer For Free Speech!

In 2017, high school freshman Brandy Levy was not selected to the varsity cheerleader squad.

Away from the school and the school campus, Levy voiced her frustration in a Snapchat post showing Levy and a friend extending their middle fingers. The image was accompanied by the words:

“f**k school f**k softball f**k cheer f**k everything”

(Except Levy did not use asterisks.)

Snapchat posts automatically delete after 24 hours, but Levy’s post, which went to 250 friends in a closed group, was captured in a screenshot by another cheerleader. The image was then circulated amongst all of the the cheerleaders and finally made it to the coaching staff of the cheerleading squad.

The school suspended Levy from the Junior Varsity Cheerleading squad for a year. Levy and her parents fought unsuccessfully to have the ban overturned and took to the courts.

The District Court ruled that the school had overstepped is bounds because and overturned the school’s decision.

The case was appealed to the Third Circuit which ruled unanimously for Levy but the judges were split on the reasoning.

The case was then appealed to the Supreme Court.

On Wednesday, the Supreme Court ruled 8-1 that the school had overstepped its authority and violated the First Amendment rights of Levy.

What is interesting is that the Third Circuit had ruled that a school could not regulate speech that occurred off campus at any time.

The Supreme Court rejected that sentiment but ruled that schools had to show a disruption on the school’s educational foundation to be considered outside of First Amendment protection.

(This would make sense given the Supreme Court’s ruling in the famous “Bong Hits 4 Jesus” ruling. There, in Morse v. Frederick, a student held up a sign reading “Bong Hits 4 Jesus” during an outing sponsored by the school so that students could witness the Olympic torch relay passing through the town. The principal told the student to remove the sign as it could be seen that the school was promoting illegal drug activity. The student refused and was suspended.

After winding through the lower courts, the Supreme Court ruled a school could limit speech that promoted illegal drug use.

That decision would mean that the Third Circuit was out in left field when it claimed that the school could not regulate any off campus speech.

In the Levy case, the Supreme Court ruled that while in school, the school had the right to act in loco parentis and could limit some speech, but the majority opined that Levy’s speech did not fall within the realm of in loco parentis because of the location so far away from school (the Snapchat post was made in front of a pizza joint) and that the “speech” was not targeted toward the school body, but only Levy’s friends. The Court also ruled that Levy did not forfeit her First Amendment rights to criticize the school or school officials as long as she was not causing a disruption to the educational process.

Justice Thomas disagreed with the majority saying that speech that is critical of school and staff is by its very nature “disruptive” of the educational process.

That’s a stretch to us.

While this case is a win for free speech and the ability of students to exercise their First Amendment rights, the case highlights the age in which we live of social media.

If Levy have been outside the pizza parlor and said to a crowd of people, “f**k school f**k softball f**k cheer f**k everything” would anyone have cared? Would anyone not have assumed that this was a teenaged freshman voicing frustration over not achieving something she wanted?

Would her vocalization of her thoughts and feelings ever have gotten back the Coaches?

We think it is likely that it would not.

Therefore, it is the medium of the internet and the electronic social media that exacerbated this incident and arguably not the speech itself.

All in all, we like this decision. It is a narrow decision and the justices admit that going forward, they are going to have to rule on a case by case basis to get a concrete standard for schools.

For now, the case of Mahanoy Area School District v. Levy is a step along that path to a concrete standard.

As an aside….

The dispute brought together a diverse coalition of groups backing Levy and the ACLU, including conservative legal organizations, religious liberty groups and nine Republican attorney general, who argued that under-policing campus speech is “undoubtedly the better rule.”

The Biden administration and anti-bullying groups, meanwhile, sided with the Mahanoy Area School District.

There ya go….the Biden administration trying to restrict the rights of people one step at a time.

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