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Free-Speech Win: Supreme Court Rules in Favor of Cheerleader Disciplined for Off-Campus 'Vulgar' Snapchat Posts

Thursday, June 24, 2021

Free-Speech Win: Supreme Court Rules in Favor of Cheerleader Disciplined for Off-Campus 'Vulgar' Snapchat Posts
Brandi Levy (via American Civil Liberties Union)

In a major First Amendment ruling, the U.S. Supreme Court held that public schools have limited authority to punish students for off-campus speech. But the Court declined to adopt a categorical rule defining the scope of those limits. See Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180, 141 S. Ct. 2038 (2021).

The facts: A cheerleader’s social-media protest

Brandi Levy—a 14-year-old public-school student in Pennsylvania—was frustrated after being passed over for the varsity cheerleading squad. Instead, she was placed on the junior-varsity team. Around the same time, she failed to secure a position on a private softball team.

While off campus, Levy and a friend went to a convenience store and took a photo raising their middle fingers. She posted the image to Snapchat with a caption: “F*ck school f*ck softball f*ck cheer f*ck everything.” She followed up with another post complaining about the cheer tryouts: “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else,” and an upside-down smiley-face emoji.

These posts—visible to her 250 Snapchat friends—were soon captured and circulated among students.

Some cheerleaders, upset by the messages, brought them to the coaches' attention. The school suspended Levy from the cheerleading team for a year, citing her use of profanity in connection with a school activity. Appeals to administrators and the school board failed.

Levy, through her parents, filed suit in federal district court. The court found a First Amendment violation and ordered her reinstatement. The Third Circuit affirmed, holding that the disruption standard in an earlier, famous Supreme Court case, Tinker, does not apply to off-campus speech. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S. Ct. 733 (1969).

The ruling: there are limits on regulating off-campus speech

The Supreme Court agreed with the outcome—but not the reasoning—of the Third Circuit Court of Appeals. It rejected the bright-line rule that Tinker never applies off campus. Instead, the Court emphasized that the unique characteristics of the school setting don’t always disappear outside school grounds.

Writing for the majority, Justice Breyer outlined three considerations that typically reduce a school’s interest in regulating off-campus speech:

1. Parental authority: Schools rarely stand in loco parentis off campus.

2. Overregulation: Regulating both on- and off-campus speech would cover virtually all student expression.

3. Democratic values: Public schools are "nurseries of democracy" that must safeguard unpopular views.

Applying those principles, the Court found the school’s interests in promoting good manners and preventing disruption too weak to justify punishing Levy’s speech. Her posts were made on her own time, from her own device, and neither identified nor threatened any school official.

Justice Thomas’s dissent

Justice Thomas was the sole dissenter. He relied on 19th-century precedent, including Lander v. Seaver, 32 Vt. 114 (1859). He argued that off-campus speech can be regulated when it has a proximate tendency to harm the school. He would have upheld Levy’s suspension.

What Mahanoy means going forward

Mahanoy makes clear that schools lack unfettered power to police students’ off-campus speech. But it stops short of articulating a definitive test and so leaves many questions unanswered. The decision underscores the importance of context: the student’s age, the nature of the speech, and the location from which it’s made.

The Court reaffirmed that mere offense or discomfort does not justify censorship. See Tinker, 393 U.S. at 509 (“Undifferentiated fear or apprehension of disturbance is not enough …”).

The majority assessed the characteristics of Levy’s speech and found that the school’s interests did not overcome her First Amendment rights. Quoting Tinker, the Court noted that to justify the prohibition of a student’s expression, a school must be able to show that its action was caused by something more than a desire to avoid the discomfort of an unpopular viewpoint. Here, the Court said, the school failed to do that.

At what point does vulgar speech, made off-campus and outside of school hours, cause more than a mere apprehension of work disruption or harm to school community members? The majority indicated that schools have an interest in regulating off-campus speech that includes bullying or threats, rule violations related to online-school activities, and breaches of school computer systems. The majority also suggested that what off-campus activities fall under a school’s authority to regulate speech could depend on the student’s age, the nature of the off-campus activity, and the impact of the speech itself.

Justice Alito, concurring, noted that the opinion applies to K–12 schools—not public colleges or universities. Still, the ruling suggests skepticism toward any government institution punishing speech expressed off duty and off site.

Conclusion

Brandi Levy’s case underscores the enduring power of the First Amendment—even when the speech is profane, immature, or made in anger. By standing up for her rights, Ms. Levy secured a precedent that protects public-school students across the country. Public schools are, after all, government institutions and the First Amendment lets us criticize them.

As the Court concluded, “It might be tempting to dismiss [Levy’s] words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

Chandra Law has experience obtaining justice for victims of First Amendment abuses and First Amendment retaliation, including for free-speech violations. If you think that your rights have been violated, you may contact us to discuss your options.

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Related Practice Areas
First AmendmentGovernment Ethics, Misconduct, Fraud, & AbuseFirst Amendment Retaliation
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free-speechfirst-amendment-retaliationfirst-amendment

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