Brandi Levy, a former cheerleader at Mahanoy Area High School in Mahanoy City, Pennsylvania and a key figure in a major U.S. case about free speech. Picture: Danna Singer/Handout via Reuters
Brandi Levy, a former cheerleader at Mahanoy Area High School in Mahanoy City, Pennsylvania and a key figure in a major U.S. case about free speech. Picture: Danna Singer/Handout via Reuters

US Supreme Court grapples with free speech case involving cheerleader's foul-mouthed social media post

By Reuters Time of article published Apr 28, 2021

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Andrew Chung

US Supreme Court justices on Wednesday wrestled with whether public schools can punish students for what they say off campus in a case involving a former Pennsylvania cheerleader's foul-mouthed social media post that could impact the free speech rights of millions of young Americans.

The nine justices heard nearly two hours of arguments in an appeal by the Mahanoy Area School District of a lower court ruling in favour of Brandi Levy that found that the US Constitution's First Amendment guarantee of freedom of speech bars public school officials from regulating off-campus speech.

The justices seemed ready to rule in favour of Levy. The justices broadly seemed skeptical that Levy's post was sufficiently disruptive of the school environment to have warranted the punishment she received - being kicked off the cheerleading squad for a year.

Questions by conservative and liberal justices, however, indicated that they were concerned about protecting wide-ranging student expression, including contentious political or religious views, while at the same time allowing schools to address threats, bullying and other difficult situations that could arise outside the school environment itself.

The court's eventual ruling could clarify the limits of an important 1969 Supreme Court precedent that allowed public schools to punish student speech that would "substantially disrupt" the school community.

Many schools and educators, supported by President Joe Biden's administration, have argued that ending their authority over students at the schoolhouse gates could make it harder to curb bullying, racism, cheating and invasions of privacy - all frequently occurring online.

The American Civil Liberties Union, representing Levy, has argued that students need protection from censorship and monitoring of their beliefs.

Under a 1969 Supreme Court precedent, public schools may punish student speech that would "substantially disrupt" the school community. Levy's case will determine whether this authority extends away from school.

Liberal Justice Stephen Breyer said that if using swear words away from school merits discipline, "I mean, my goodness every school in the country would be doing nothing but punishing."

But the justices struggled over the broader free speech issues raised by the case. Several justices raised hypothetical scenarios that showed their concerns over protecting student expression, including if a student wears a Black Lives Matter T-shirt, carries a Confederate flag or refuses to call transgender students by the names they have adopted.

Conservative Justice Samuel Alito said he was concerned about bullying and speech directly relating to students, but said that there needs to be "clear rules that protect free speech."

Peeved because she was denied a spot in a tryout for the varsity cheerleading team after being a member of the junior varsity squad as a ninth-grader, Levy - age 14 at the time and currently 18 - made a Snapchat post that set the case in motion.

On a Saturday while at a convenience store in Mahanoy City in Pennsylvania's coal region, she posted a photo of her and a friend raising their middle fingers, adding a caption using the same curse word four times to voice her displeasure with cheerleading, softball, school and "everything."

As a result, Mahanoy Area High School banished her from the cheerleading team for a year.

Conservative Justice Brett Kavanaugh said it appeared to him that kicking her off the team for a year was "a bit of an over-reaction by the coach.

"She's competitive, she cares," Kavanaugh said. "She blew off steam like millions of other kids have when they're disappointed about being cut from the high school team or not being in the starting line up or not making all-league (honours)."

Levy and her parents sued, seeking reinstatement to the squad and a judgment that her First Amendment rights had been violated. A judge ordered Levy's reinstatement, finding that her actions had not been disruptive enough to warrant the punishment.

The Philadelphia-based 3rd U.S. Circuit Court of Appeals last year went even further, deciding that the Supreme Court's 1969 precedent, known as Tinker v. Des Moines Independent Community School District, does not apply to off-campus speech and that the First Amendment prohibits school officials from regulating such speech.

The court's eventual decision would affect public schools, as governmental institutions, but not private schools.

A ruling in the case is due by the end of June.

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