By MARSHA MERCER
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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