WASHINGTON – The Supreme Court on Wednesday sided with a former cheerleader who excoriated her school in a profanity-laced post on social media, holding that the punishment of her off-campus speech violated the First Amendment. But the 8-1 ruling left largely unresolved the broader question of when schools may regulate off-campus speech, and when such regulation is off limits. “It might be tempting to dismiss [the student’s] words as unworthy of the robust First Amendment protections discussed herein,” Associate Justice Stephen Breyer wrote for the court. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.” Associate Justice Clarence Thomas wrote a dissent. When Brandi Levy, who was 14 at the time, failed to make the varsity cheer team in 2017, she and one of her friends posted a vulgar message on Snapchat, exhorting her followers to “F–––– school f–––– softball f–––– cheer f–––– everything.” The message made it back to her coaches, who cut her from the junior varsity squad. After appealing to school authorities, her parents sued the school district in federal court. Levy’s attorneys at the American Civil Liberties Union argued that allowing principals to punish students for their off-campus speech, including on social media, would give schools far too much power to police innocuous interactions with their friends. But school officials said they need to be able to discipline bullying and cheating that can begin off-campus or online before working its way into the school building. The standard for on-campus speech is more clear. A landmark 1969 Supreme Court decision, Tinker v. Des Moines, reaffirmed students’ First Amendment rights at school. But the court said that teachers and principals may regulate student speech in situations when it “materially disrupts” the operation of the school. That case involved a group of students who wore black armbands to protest the war in Vietnam. Appeal:Supreme Court to hear First Amendment case of cheerleader’s vulgar post Argument:Supreme Court wary of letting schools punish off-campus speech In Levy’s case, the Mahanoy Area School District in Pennsylvania asserted that the same standard developed in the Tinker case should also apply to off-campus speech. The justices openly struggled with the questions involved at oral arguments in April and several signaled a desire to craft as narrow a ruling as possible. Associate Justice Brett Kavanaugh, who has two school-age children, repeatedly questioned whether the school district hadn’t just overreacted to Levy’s post. A federal district court ruled for Levy in 2019, finding that – even if the Tinker standard applied off campus – the speech she used wasn’t disruptive enough to trigger disciplinary action. But the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit went a step further, holding that Tinker does not apply to off-campus speech. That created a split with other appeals courts, setting up a different legal standard depending on where students live.
Associate Justice Amy Coney Barrett, who has seven children, said during arguments that while there might be good “policy reasons” for extending a school’s authority beyond campus, such as bullying or cheating, she questioned what precedent the court could rely on to rule in favor of the school district.