Cheerleader’s profanity may shape student speech rights in digital age

Originally published in Spring 2021 issue of California Publisher.

By Jason Shepard

The U.S. Supreme Court will soon decide whether a school district violated a cheerleader’s First Amendment rights when it suspended her for venting on Snapchat about not making the varsity team.

In doing so, the Court could create new rules for student free speech and press rights in the digital era.

First Amendment advocates fear the Court may further chip away at expression rights of students.

School officials, meanwhile, are hopeful the Court will give them wider latitude to punish students for expression that may undermine educational values.

The case began when Brandi Levy, then a 14-year-old high school freshman in Pennsylvania identified by her initials in court records, was upset she didn’t make the varsity cheerleading squad.

Out shopping with a friend on a Saturday, Brandi posted a photo on Snapchat giving the middle finger, with the caption “fuck school fuck softball fuck cheer fuck everything.” The post disappeared within 24 hours, but another student took a screenshot and shared it with her mother, who happened to be a coach on the cheerleading team.

The school suspended Brandi from the team for one year, saying the snap undermined team unity and violated team rules.

Brandi’s family and the ACLU sued, arguing the First Amendment prohibits a public school from punishing students for “off-hand, private, off-campus, ephemeral expression.”

A district court and a panel of the Third Circuit of Appeals agreed.

“B.L. created the snap away from campus, over the weekend, and without school resources, and she shared it on a social media platform unaffiliated with the school,” the Third Circuit wrote.

The First Amendment, the Third Circuit wrote, “protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large.”

The school district appealed to the U.S. Supreme Court, noting a split among federal appellate circuits on questions about whether or when off-campus speech falls within the scope of appropriate school discipline under the First Amendment.

The case is Mahanoy Area School District v. B.L.

Supreme Court precedents

The U.S. Supreme Court has expanded the protections of the First Amendment in many areas, but when it comes to student expression rights, the Court’s precedents have narrowed First Amendment protections over time.

The high mark was in 1969, when the Court overturned the suspension of students who wore black armbands to school in protest of the Vietnam War.

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the Court wrote in Tinker v. Des Moines School District.

The Court said schools can punish school speech only when it is substantially disruptive to school.

Since then, the Court has consistently ruled against students’ free speech and press claims.

In 1986, the Court upheld a student’s suspension over sexual metaphors in a speech nominating his friend for student council. Schools must be allowed to inculcate civility by prohibiting lewdness in expression during school activities, the Court ruled in Bethel School District v. Frasier.

In Hazelwood School District v. Kuhlmeier two years later, the Court upheld the censorship of a school-sponsored high school newspaper that published stories the principal deemed contrary to the school’s mission.

The decision was a disaster for student journalists. Recently, several states passed “New Voices” laws giving student journalists statutory protections from censorship, part of a campaign by the Student Press Law Center to “Cure Hazelwood.”

And most recently in Morse v. Frederick in 2007, the Court upheld the suspension of a student who unfurled a banner reading “Bong Hits 4 Jesus” at a school-sponsored event on a public street because the principal deemed the message to be promoting drug use.

While the Supreme Court ruled in favor of school discipline in each of the cases, the basic rule from Tinker has remained –that schools must demonstrate disruption to its operations or mission in order to punish speech that otherwise would be protected by the First Amendment.

Social media and the schoolhouse gate

The Mahanoy case presents a new question for the Court: to what extent can schools punish students for speech that occurs completely off campus?

In today’s world of social media, schools argue there is no bright line between off-campus and on-campus speech.

Offensive, vulgar, harassing, and racist speech by students online can cause problems at school, including in classrooms, the hallways, and extracurricular activities.

If the Supreme Court upholds the Third Circuit’s ruling, schools will have more difficulty providing a safe school environment, the National School Boards Association, the American Federation of Teachers, and other educator groups argued in a legal brief.

“When school administrators are unable to discipline students for disruptive speech, they lose an important tool to maintain a safe and supportive school environment,” the brief argued.

Speech online can affect schools in many ways. Legal briefs cited examples of students posting racist videos and photos, threatening and harassing messages about peers and teachers, and exam answers. Most of these posts were done while students were off-campus and not during school hours, but they caused problems for the schools.

In many states, anti-bullying laws leave schools vulnerable to sanctions if they don’t address bullying or harassment allegations, even if they involve speech that occurred off campus.

In its appeal, the Mahanoy school district asked the Supreme Court to make it clear that off-campus speech is not off limits for student discipline.

“Wherever student speech originates, schools should be able to treat students alike when their speech is directed at the school and imposes the same disruptive harms on the school environment,” the school district argued in its brief.

A bright line?

While both sides want the Supreme Court to issue a bright-line rule in its opinion, it’s unclear if the Court can, or will, deliver.

A survey of federal court rulings show how difficult the issues can be. In one case, the Second Circuit upheld the suspension of a student who posted online an image of a gun shooting someone’s head with a threat to kill his English teacher, whom he named. In another case, the Fourth Circuit upheld the suspension of a student who created and distributed harassing images and posts accusing another student of having STDs.

These appellate circuits have adopted tests that apply Tinker to off-campus speech when it is “reasonably forseeable” to come to the attention of school authorities or if it has a “nexus” to a school’s pedagogical interests.

The Third Circuit in Mahanoy said those standards are too vague and “sweep far too much speech into the realm of schools’ authority.”

The Third Circuit acknowledged its bright-line rule “leaves some vulgar, crude, or offensive speech beyond the power of schools to regulate.”

But, citing Tinker, the judges said, our “Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissible, often disputatious, society.”

It’s unclear how the Supreme Court will rule.

During oral arguments in April, some justices seemed sympathetic to the cheerleader’s case.

Several justices asked questions that indicated they were concerned that anything a teenager posts online could potentially be about school and potentially within the reach of government action if the Court sided with the school district.

Yet, some justices, including Justices Brett Kavanaugh and Stephen Breyer, appeared sympathetic to the cheerleader’s case while wanting to avoid a precedent that would preclude student discipline for more serious cases.

Kavanaugh said in this case, the punishment seemed extreme. “She’s competitive, she cares, she blew off steam like millions of other kids have when they’re disappointed about being cut from a high school team,” Kavanaugh said.

Justice Breyer seemed to agree. “She used swear words, you know, unattractive swear words, off campus. Did that cause a material and substantial disruption? I don’t see much evidence it did. And if swearing off campus did, I mean, my goodness, every school in the country would be doing nothing but punishing.”

Jason M. Shepard, Ph.D., is chair of the Department of Communications at CSU Fullerton. His primary research expertise is in media law, and he teaches courses in journalism, and media law, history and ethics. Contact him at jshepard@fullerton.edu or Twitter at @jasonmshepard.

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Jason M. Shepard, Ph.D.

Media law prof and COMM dept chair @CSUF. Past: @CapTimes @isthmus @TeachForAmerica @UWMadison PhD. More at jasonmshepard.com.