Thursday, June 24, 2021

School gets an F for free speech violation -- June 24, 2021 column


Naturally, the parents sued.

That was my first reaction months ago to news the Supreme Court would hear the case of a high school cheerleader who sued her school district after she was booted from the cheerleading squad for a vulgar post on Snapchat.

We’re a litigious society, so of course the parents made cheerleading a federal case. Really, folks?

But. Why were school officials in the eastern Pennsylvania town so calcified and controlling they couldn’t find a teachable moment in the social media rant of a 14 year old?

Brandi Levy had blown off steam not at school but on her personal cell phone to her friends on a Saturday afternoon at the Cocoa Hut convenience store.

“F--- school f--- softball f---- cheer f----everything,” she wrote, spelling out the F word. The post included a photo of her and a friend raising their middle fingers.

The junior varsity cheerleader was angry she had not made the varsity squad – although she was offered a JV spot for another year -- and she had not gotten the position she wanted on the softball team.

On Wednesday, the Supreme Court ruled 8-1 in favor of “B.L.,” as the court called the minor. The justices put the nation’s 13,000 school districts on notice they must tread carefully when they regulate student expression off campus.

“It might be tempting to dismiss B.L.’s words as unworthy of the robust First Amendment protections . . . But sometimes it is necessary to protect the superfluous in order to preserve the necessary,” Justice Stephen Breyer wrote in the majority opinion. The case is Mahanoy Area School District v. B.L.

Breyer is the oldest justice at 82, and some Democrats hope he will retire so President Joe Biden can name a successor. But the octogenarian gamely waded into the world of the young, describing Snapchat as “a social media application that allows users to post photos and videos that disappear after a set period of time.” He also mentioned there was “upside-down smiley-face emoji” in the post.

In a concurring opinion, Justice Samuel Alito wrote that while most school officials are deeply dedicated, “it is predictable that there will be occasions when some will get carried away, as did the school officials in the case at hand.

“If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory,” Alito wrote.

When cheerleading coaches saw a screenshot of the Snapchat post, they suspended Levy from the squad for the upcoming year.  

Levy apologized, but the officials dug in their heels. Lawyers from the American Civil Liberties Union took the case, arguing Levy’s First Amendment rights were violated, and the courts agreed.

Justice Clarence Thomas, the lone dissenter, wrote that public schools have historically had the authority to regulate student speech.

The Biden administration, many school systems and education groups supported the school district, arguing schools need the ability to censor student speech off campus to fight online bullying, racism and threats.

The court’s majority said schools can limit what students say off campus in certain situations, such as bullying, harassment and threats, and acknowledged that what constitutes off campus can be murky in the age of remote learning. But censorship was wrong in this instance.

“Putting aside the vulgar language, the listener would hear criticism, of the team, the team’s coaches, and the school – in a word or two, criticism of the rules of a community of which B.L. forms a part. This criticism did not involve features that would place it outside the First Amendment’s ordinary protection. B.L.’s posts, while crude, did not amount to fighting words,” Breyer wrote, adding:

“B.L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”

The First Amendment protects the right to free expression, although the battles over where to draw the line will continue. In the 21st century, a teenager’s off-campus “snap” may be crude and vulgar, but it is also constitutionally protected speech.

©2021 Marsha Mercer. All rights reserved.

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