In an 8-1 decision on the applicability of the First Amendment to public- school students who utter controversial speech over social media, the U.S. Supreme Court ruled in favor of Brandi Levy, a disappointed Pennsylvania teenager who sent profane Snapchat posts after being denied a spot on her school’s varsity cheerleading squad. Writing for the majority, Justice Stephen Breyer argued that, absent a disruption of school activities, disciplining students for expressions of opinion — whether they be made on or off campus — is never warranted. This departed somewhat from a Third Circuit ruling, which made the off-campus location of the rant by the “cussing cheerleader” the central reason for siding with her. (In a concurring opinion, Justice Samuel Alito, joined by Justice Neil Gorsuch, tended to agree with the lower court that off-campus locations tend to reduce the parental “consent” for school discipline).
The main precedent Breyer leaned on was the Vietnam-era Tinker v. Des Moines decision protecting an on-campus antiwar protest, which, SCOTUS observed at the time, had no negative impact on school activities and thus did not justify the school’s abrogation of free-speech rights. Then, as in the current case, it wasn’t the location of the speech that proved crucial, but its nexus to legitimate regulation by the school. It’s also clear in all such cases that the First Amendment rights of students come into play only in public-school settings, where the government is suppressing speech.
Although a lot of the interest in this case stemmed from its social-media angle, the decision didn’t really turn on it, although Breyer did note that the limited intended distribution and temporary life of Snapchat posts were factors in judging whether the rants in question really affected school discipline. On the other hand, Justice Clarence Thomas, in a testy dissent, suggested that social media amplified the potentially harmful effects of off-campus speech:
[T]he majority fails to consider whether schools often will have more authority, not less, to discipline students who transmit speech through social media. Because offcampus speech made through social media can be received on campus (and can spread rapidly to countless people), it often will have a greater proximate tendency to harm the school environment.
Court watchers will undoubtedly be amused that the 82-year-old Breyer quoted Brandi Levy’s obscene outburst in full, while the 73-year-old Thomas censored it. (For the record, it was “Fuck school fuck softball fuck cheer fuck everything.”)
While SCOTUS gave Brandi Levy a reversal of a suspension from certain extracurricular school activities, it made clear that its ruling would depend on the facts of each case. Thus, it didn’t provide any general license for “cussing cheerleaders” or for students with more serious (if less personal) complaints to make about school policies and practices. It remains clear that the kind of political statements made by students in the Tinker case, back in the day, will be protected, wherever and however they are uttered, unless they directly disrupt routine school instruction or other essential operations. But the main sanction for the kind of adolescent speech examined in this case will remain, for the time being, eternal embarrassment.