The Limits of Student Speech

Brandi Levy was having a bad day. It was a Saturday in the spring of 2017, and the ninth-grader at Mahanoy Area Junior/Senior High School in Pennsylvania had just learned that she’d failed to make the varsity cheerleading squad and would remain on JV.

Levy vented her frustration on social media, sending a Snapchat message to about 250 friends. The message included an image of herself and a friend with their middle fingers raised, along with text expressing a similar sentiment. Using a curse word four times, Levy expressed her dissatisfaction with “school,” “softball,” “cheer,” and “everything.”

Though Snapchat messages are designed to disappear, another student took a screenshot of this one and showed it to her mother, one of the cheerleading coaches. The school suspended Levy from cheerleading for a year, saying the punishment was needed to “avoid chaos” and maintain a “teamlike environment.”

Brandi Levy was having a bad day. It was a Saturday in the spring of 2017. That day, she had just learned that she’d failed to make the varsity cheerleading squad. That meant that the ninth-grader at Mahanoy Area Junior/Senior High School in Pennsylvania would remain on JV.

Levy vented her frustration on social media. She sent a Snapchat message to about 250 friends. The message included an image of herself and a friend with their middle fingers raised. It also had text that conveyed similar feelings. Levy expressed her dissatisfaction with “school,” “softball,” “cheer,” and “everything.” And she used a curse word four times to stress her point.

Snapchat messages are designed to disappear, but this one was captured before that happened. Another student took a screenshot of it and showed it to her mother, one of the cheerleading coaches. The school suspended Levy from cheerleading for a year. The school said the punishment was needed to “avoid chaos” and maintain a “teamlike environment.”

Levy sued the school district, winning a sweeping victory in the U.S. Court of Appeals for the Third Circuit, in Philadelphia. The appeals court said the First Amendment did not allow public schools to punish students for speech outside school grounds. The school district appealed.

Now the Supreme Court has agreed to hear the case, Mahanoy Area School District v. B.L. (as Levy is known in court papers). It will be an opportunity for the nation’s highest court to decide whether schools can punish students for off-campus speech.

“The case is an important one because school administrators, students, and parents have no idea just how far the arm of school authority extends off campus,” says David Hudson, a First Amendment expert and a law professor at Belmont University in Nashville. He adds, “This is an issue that has been crying out for Supreme Court review for a long time.”

Levy sued the school district in Philadelphia. She won a sweeping victory in the U.S. Court of Appeals for the Third Circuit. The appeals court said the First Amendment did not allow public schools to punish students for speech outside school grounds. The school district appealed.

Now the Supreme Court has agreed to hear the case, Mahanoy Area School District v. B.L. (as Levy is known in court papers). It will be an opportunity for the nation’s highest court to decide whether schools can punish students for off-campus speech.

“The case is an important one because school administrators, students, and parents have no idea just how far the arm of school authority extends off campus,” says David Hudson, a First Amendment expert and a law professor at Belmont University in Nashville. He adds, “This is an issue that has been crying out for Supreme Court review for a long time.”

In urging the justices to hear the case, the school district said administrators around the nation need a definitive ruling from the Supreme Court on their power to discipline students for what they say away from school.

“The question presented recurs constantly and has become even more urgent as Covid-19 has forced schools to operate online,” a brief for the school district says. “Only this court can resolve this threshold First Amendment question bedeviling the nation’s nearly 100,000 public schools.”

Justin Driver, a law professor at Yale University, agrees that the issues in this case are important. In fact, he says, “it is difficult to exaggerate the stakes of this constitutional question.”

Driver himself doesn’t believe that schools have a right to tell students what they can say when they’re not in school.

“In the modern era, a tremendous percentage of minors’ speech occurs off campus but online,” he says. “Judicial decisions that permit schools to regulate off-campus speech that criticizes public schools are antithetical to the First Amendment. Such decisions empower schools to reach into any student’s home and declare critical statements verboten, something that should deeply alarm all Americans.”

The school district urged the justices to hear the case. It says that administrators around the nation need a definitive ruling from the Supreme Court on their power to discipline students for what they say away from school.

“The question presented recurs constantly and has become even more urgent as Covid-19 has forced schools to operate online,” a brief for the school district says. “Only this court can resolve this threshold First Amendment question bedeviling the nation’s nearly 100,000 public schools.”

Justin Driver, a law professor at Yale University, agrees that the issues in this case are important. In fact, he says, “it is difficult to exaggerate the stakes of this constitutional question.”

Driver himself doesn’t believe that schools have a right to tell students what they can say when they’re not in school.

“In the modern era, a tremendous percentage of minors’ speech occurs off campus but online,” he says. “Judicial decisions that permit schools to regulate off-campus speech that criticizes public schools are antithetical to the First Amendment. Such decisions empower schools to reach into any student’s home and declare critical statements verboten, something that should deeply alarm all Americans.”

In the past half-century, the Supreme Court has issued a number of important decisions about students’ First Amendment rights (see “Key Rulings on Student Speech,” below). The main precedent is from a different era. In 1969, in Tinker v. Des Moines Independent Community School District, the Supreme Court ruled that students had a right to wear black armbands to protest the Vietnam War but said disruptive speech, at least on school grounds, could be punished by school officials.

Making distinctions between what students say on campus and off was easier in 1969, before the rise of social media. These days, most courts have allowed public schools to discipline students for social media posts so long as they are linked to school activities and threaten to disrupt them.

The Pennsylvania School Boards Association filed a brief in support of the school district’s appeal to the Supreme Court.

“Whether a disruptive or harmful tweet is sent from the school cafeteria or after the student has crossed the street on her walk home, it has the same impact,” the brief says, adding that the appeals court ruling “renders schools powerless whenever a hateful message is launched from off campus.”

In the past half-century, the Supreme Court has issued several important decisions about students’ First Amendment rights (see “Key Rulings on Student Speech,” below). The main precedent is from a different era. In 1969, in Tinker v. Des Moines Independent Community School District, the Supreme Court ruled that students had a right to wear black armbands to protest the Vietnam War. But the Court said disruptive speech, at least on school grounds, could be punished by school officials.

Making distinctions between what students say on campus and off was easier in 1969. That was long before the rise of social media. These days, most courts have let public schools discipline students for social media posts. But that’s only been allowed in cases were posts are linked to school activities and threaten to disrupt them.

The Pennsylvania School Boards Association filed a brief in support of the school district’s appeal to the Supreme Court.

“Whether a disruptive or harmful tweet is sent from the school cafeteria or after the student has crossed the street on her walk home, it has the same impact,” the brief says, adding that the appeals court ruling “renders schools powerless whenever a hateful message is launched from off campus.”

Levy, who is represented by lawyers for the American Civil Liberties Union, a group that defends constitutional rights, told the Supreme Court that the First Amendment protects her “colorful expression of frustration, made in an ephemeral Snapchat on her personal social media, on a weekend, off campus, containing no threat or harassment or mention of her school, and that did not cause or threaten any disruption of her school.”

The Supreme Court has a reputation for protecting First Amendment rights. Chief Justice John G. Roberts Jr. recently described himself as “probably the most aggressive defender of the First Amendment on the Court now.” But the Court has been slowly chipping away at students’ free speech rights since the Tinker decision in 1969, such as with its 2007 ruling restricting some kinds of student speech off school grounds.

Now the widespread use of social media by students has further complicated the issue. And that makes this a particularly good time for the Supreme Court to re-examine students’ First Amendment rights, says Hudson, the First Amendment expert.

“This case is a good opportunity,” he says, “for the Court to explain what the rules are with this new revolutionary form of communication.”

Levy is represented by lawyers for the American Civil Liberties Union. The group defends constitutional rights. It told the Supreme Court that the First Amendment protects Levy’s “colorful expression of frustration, made in an ephemeral Snapchat on her personal social media, on a weekend, off campus, containing no threat or harassment or mention of her school, and that did not cause or threaten any disruption of her school.”

The Supreme Court has a reputation for protecting First Amendment rights. Chief Justice John G. Roberts Jr. recently described himself as “probably the most aggressive defender of the First Amendment on the Court now.” But the Court has been slowly chipping away at students’ free speech rights since the Tinker decision in 1969. For example, its 2007 ruling limited some kinds of student speech off school grounds.

Now the widespread use of social media by students has further complicated the issue. And that makes this a particularly good time for the Supreme Court to re-examine students’ First Amendment rights, says Hudson, the First Amendment expert.

“This case is a good opportunity,” he says, “for the Court to explain what the rules are with this new revolutionary form of communication.”

With reporting by Adam Liptak of The Times.

With reporting by Adam Liptak of The Times.