Future Tense

The Future of Student Free Speech Comes Down to a Foul-Mouthed Cheerleader

A cheerleader talks on the phone as a disembodied hand covers her mouth and other disembodied hand steals her phone.
Photo illustration by Slate. Photos by Jupiterimages/iStock/Getty Images Plus and Saturn_3/iStock/Getty Images Plus.

In April, the Supreme Court will hear a case that has been turned into a bit of a punchline: The story of the foul-mouthed 14-year-old cheerleader burdening the judiciary with her insistence on a constitutional right to curse out her coach on Snapchat.

But the case, B.L. v. Mahanoy Area School District, is nothing of the sort. It is an all-the-marbles moment for civic education in America. You cannot teach respect for constitutional rights to young people who experience the Constitution only as a meaningless abstraction in a textbook.

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In 2017, ninth-grader Brandi Levy said on Snapchat some version of what stressed-out students have been saying on the back of the school bus since the invention of buses: “Fuck school fuck softball fuck cheer fuck everything.” The post was shared on a Saturday afternoon during a trip to the local convenience store, disappeared from Snapchat by Sunday afternoon, and caused no disturbance at school whatsoever—except to irritate the cheerleading coach, who banned Levy from the squad for a year. She filed suit, and in June 2020, a federal appeals court ruled that school authorities violated the First Amendment by disciplining her for the off-campus speech. Now, the Mahanoy district is asking the Supreme Court to overturn that ruling.

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I always tell my students that I don’t need a semester to teach them First Amendment law, just a sentence: “It’s all about where you draw the line.” In the off-campus world, nothing short of threatening violence, distributing child pornography, inciting a riot, or inviting someone to join a criminal conspiracy can justify governmental sanctions for the content of a speaker’s message.

Inside school, or at school-sponsored events, the boundary line where speech loses First Amendment protection and becomes punishable was laid down in a landmark 1969 Supreme Court case Tinker v. Des Moines Independent Community School District. There, the justices decided that wearing an antiwar armband to school is constitutionally protected expression that cannot be grounds for school discipline, even if it provokes heated words. “Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance,” the justices wrote. “But our Constitution says we must take this risk.” Nothing short of a “material” or “substantial” disruption of school functions, the court decided, can justify punishing a student speaker—even on campus, during school hours.

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Speech on school grounds during school time is addressed entirely to a captive audience of listeners who are legally compelled to be there, so it makes sense that the school has more authority. But when a student uses an off-campus platform, no one is compelled to listen, and the “audience” is anyone with internet service. Therefore, it stands to reason that students must have greater First Amendment protection when they are speaking off campus on personal time. It is one thing to say that a school can dictate how students speak to one another in class, but quite another to say that it has equal authority to dictate how students speak to the entire world, and that all speech must always be suitable for the classroom.

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Political and social advocacy sometimes involves using harsh language. Outside of school, it’s well-established that flipping a middle finger to a police officer to express contempt is constitutionally protected speech. An enduring pillar of the Supreme Court’s First Amendment jurisprudence, Cohen v. California, validated the right to wear a “Fuck the Draft” jacket inside a government building. After Donald Trump’s 2017 inauguration, more than 450,000 people poured into the streets of Washington, brandishing signs and apparel with distinctly not-safe-for-work slogans like “This Pussy Bites Back” and “My Pussy Isn’t Up for Grabs.” If the Mahanoy district prevails, a social media photo showing a student wearing her anti-Trump jacket would become a punishable offense if it caused even one classmate to complain.

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Skeptics may look at Levy’s case and see her punishment—being removed from a club activity for a year—as a proverbial wrist slap, certainly not worthy of the Supreme Court’s attention. But don’t be fooled. You can’t be a little bit pregnant, and you can’t be a little bit constitutionally unprotected, either. Once a category of speech loses its constitutional protection, that means any amount of punishment—even expulsion—is impervious to legal challenge. The fact that Levy lost “only” a discretionary privilege means nothing as a matter of constitutional law. Nobody has a “right” to a driver’s license, either. But you can’t lose your license for cursing about the DMV on Snapchat.

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An adult observer may, understandably, see little value in a teenager’s profane tantrum. But landmark constitutional cases often involve speech far more damaging than Brandi Levy’s harmless vent. The Roberts court has reliably said that, because we can’t put the government into the business of deciding whose ideas are too extreme or offensive to be heard, the First Amendment requires us to tolerate all manner of unpleasantness. That even includes anti-gay hate speech (Snyder v. Phelps), lying about military heroism (United States v. Alvarez), or selling videos of graphically violent dog fights (United States v. Stevens).

Lower courts have been begging the justices for a decade to take a case clarifying where a school’s authority over off-campus speech begins and ends. The fact that they turned down case after case until Levy’s is forebodingly noteworthy, because Levy’s is the rare case in which a student actually won. Far more frequently, geriatric federal judges, convinced that schools are overrun with rising violence—a thoroughly debunked myth—have given schools a free hand to regulate online speech.

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But Brandi Levy’s case isn’t a case about social media. It’s a case about off-campus speech—every bit of it. There’s only one First Amendment. Rolling back First Amendment rights on Snapchat also means rolling them back, as the kids say, IRL. If schools get a green light to punish “disruptive” speech, that includes speaking at a school board meeting, testifying at the state legislature, or even filing a lawsuit.

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Predictably, the school district and its supporters have melodramatically told the Supreme Court that a decision in Levy’s favor will leave them powerless to protect kids against cyberbullies. That’s nonsense. Speech that is severe enough to violate state bullying laws is already unprotected by the First Amendment, which allows the government to punish harassment.

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Moreover, punishment is scarcely a school’s only tool for modifying behavior. Of all the functions that schools perform, discipline is what they’re worst at. Punishment is dispensed in discriminatory ways by biased decision-makers, with no meaningful opportunity to appeal. And we want more of it? Schools have plenty of alternative tools, including calling the bully’s parents, that raise no First Amendment issues.

And gagging students from lodging complaints is hardly the “pro-safety” position. There is no legally meaningful distinction between Levy’s “Fuck cheer” and “Fuck the sexually harassing coach.” The Supreme Court has already cut students off from their best chance of making complaints heard, by giving schools limitless censorship authority over student journalism in a 1988 decision, Hazelwood School District v. Kuhlmeier. Depriving student whistleblowers of any safe haven from school punitive authority will, indisputably, make schools less safe.

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There was a time when courts might defensibly have shrugged off a constitutional challenge to school discipline as being too insignificant for the proverbial “federal case.” But school discipline is a very big deal. Study after study has documented that even a single out-of-school suspension can change the trajectory of a child’s life for the worse. Being disciplined stigmatizes a child as a “problem”—in her own mind, and in the minds of authority figures—and it can set the child hopelessly behind in schoolwork, multiplying the risk of becoming a dropout.

As alarming as it will be for high school students if Levy loses, the outcome will be more frightening still for college students. Every time the Supreme Court has decided a First Amendment case at the K–12 level, college lawyers have raced to court and convinced judges to afford them the same level of control. Less than a year after the Supreme Court’s Hazelwood gave heightened censorship power to K–12 school administrators, lawyers for the University of Alabama told federal judges: “We’ll have what they’re having.” They convinced the 11th U.S. Circuit Court of Appeals that Hazelwood gives colleges a free hand to regulate student government election campaigns, just as high schools can regulate student newspapers—a ruling that has since been replicated at federal courts throughout the country. Regardless of how the Supreme Court may hedge its opinion, the reality is that Levy’s case will set the standard for adult-age college students for decades. And while losing a year of extracurricular activities might be survivable for a 14-year-old, it could be devastating for a 19-year-old. Being kicked off a sports team can mean losing free college tuition, a place to live, a meal plan, and health coverage. That makes the Levy case a must-win for college athletes, who need a safe outlet to speak out about racism and sexual abuse in their athletic programs.

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There is every risk that, when the Supreme Court decides Levy’s case, the justices will fall back on the lazy cop-out that schools deserve deference to manage their own affairs without judicial micromanagement. That is exactly what judges said for most of the 20th century as they refused to second-guess foot-dragging by segregationist school districts. It took courageous and farsighted judges to stand up and say that civil rights are not dispensed in our country by local option.

We will soon see whether courage and foresight exist on today’s Supreme Court. Because Brandi Levy’s case is not about who gets to be a cheerleader. It’s about who gets to be an American.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

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