The Supreme Court says a Pennsylvania school can’t punish a cheerleader for swearing on Snapchat. The 8-1 ruling determined that students’ rights to free expression outweighed the school’s interest in preventing potentially disruptive speech — in this case, a snap captioned “fuck school fuck softball fuck cheer fuck everything.”
Justice Stephen Breyer delivered the majority opinion this morning, upholding an appeals court decision from the Third Circuit. He said that student Brandi Levy — identified as B.L. in court documents — shouldn’t have been suspended from her cheerleading team for a vulgar post about school sports. “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,” he wrote.
Levy had unsuccessfully tried out for varsity cheerleading (as well as a position on a private softball team) and vented about the results on Snapchat, including a follow-up snap that said “Love how me and [another student] get told we need a year of [junior varsity] before we make varsity but that’s doesn’t matter to anyone else.” Another student complained about the snap, and the school issued a one-year suspension because she “used profanity in connection with a school extracurricular activity” on social media.
Breyer’s ruling notes that Levy posted her message “outside of school hours and away from the school’s campus.” Profanity notwithstanding, the message criticized a decision the school had made. “B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection,” it says. And while the school cracked down on Levy for posting vulgar language on social media, there was no evidence that it punished students for generally swearing outside the classroom.
Thanks to a case called Tinker v. Des Moines Independent Community School District, schools can penalize on-campus speech that “would materially and substantially disrupt the work and discipline of the school,” even if it’s protected by the First Amendment. But the standard for speech in other settings has been historically fuzzier, especially on social media where posts can be viewed anywhere at any time.
Breyer said the appeals court had ruled too broadly to limit Tinker, and he affirmed that schools can punish students for some off-campus speech, citing things like bullying and harassment as disruptive speech. His ruling also says the rise of distance learning — fueled by the coronavirus pandemic — has particularly complicated the issue. And the way Levy used social media mattered: her snap was sent to a private circle of friends and fellow students, and she didn’t identify the school or target any particular students.
Even so, the ruling emphatically supports students who make offensive — but not threatening or concretely harmful — statements online.
Justice Clarence Thomas was the sole dissenting vote on the case. Thomas, who has argued for legally stopping social media platforms from banning their users, wrote that schools may have “more authority, not less, to discipline students who transmit speech through social media.” His dissenting opinion states that “because off-campus speech made through social media can be received on campus (and can spread rapidly to countless people), it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation.”