When 14-year-old Brandi Levy had a temper tantrum on Snapchat four years ago, little did she know she would pay for her outburst and become the poster child for off-campus free speech rights. The former high school cheerleader was punished for her online conniption by Pennsylvania’s Mahanoy Area High School, and whether school authorities had the right to discipline her has been argued on up the legal food chain to the U.S. Supreme Court. In what many are saying will likely prove to be a “momentous decision,” Levy has landed at the center of the free speech maelstrom.
A Tangled Web
On its face, the off-campus speech rights of public school students appears to be an open-and-shut case for lovers of liberty; however, Levy’s legal battle is filled with nuance and carries with it many complex contours. It all began when the cheerleader had a meltdown and threw out the F-bomb on the social media platform Snapchat. The fact that everything on Snapchat is erased within 24 hours mattered not because her outburst was noticed by school officials who used it as the reason to suspend her from the cheerleading squad.
What resulted was four years of legal battles before numerous courts. Even the Biden administration has weighed in on this one. Still, this case has an uncommon mix of political alliances. Imagine the Pennsylvania American Civil Liberties Union and the Alliance Defending Freedom and the Christian Legal Society on the same side? David Cole, the attorney set to argue the case in front of the Supreme Court this week, was quoted in a prominent Washington newspaper as saying, “You won’t find another case in the past decade with such a diverse range of groups on the same side.” Strange political bedfellows, indeed.
Central to determining an outcome is the query: Where does the schoolyard end? Not only was Levy’s rant posted only on a social media platform rather than uttered on the school grounds – but also was done on the weekend and not connected to a school event per se. So, what could be the problem here?
If you tease out a student’s right to free speech, many legitimate areas of concern go from harmless to life-threatening. What if a smart-aleck decides to post the answers to an exam online, another student chooses to put up pictures of a schoolmate engaged in sexual activity, or – worse – another repeatedly encourages a youngster to commit suicide?
On the other hand, one could reasonably argue that schools have no right to police what students say 24/7. The ACLU’s Witold “Vic” Walczak made the case to PennLive.com that giving schools this type of power over a student is likely to create a monster. “And that is super dangerous. Not only would students like Brandi not be able to express non-threatening, non-harassing bursts of frustration, but it would give schools the possibility of regulating important political and religious speech,” Walczak said.
The Freedom Forum Institute posits:
“Though public-school students do possess First Amendment freedoms, the courts allow school officials to regulate certain types of student expression. For example, school officials may prohibit speech that substantially disrupts the school environment or that invades the rights of others. Many courts have held that school officials can restrict student speech that is lewd.”
That may sound black and white, but in reality it has turned out to be many shades of gray.
The last time the U.S. Supreme Court decided a student speech rights case of this magnitude was back in the days of anti-Vietnam war protests. In Tinker v. Des Moines Independent Community School District, the High Court found 7-2 in favor of Mary Beth Tinker. It ruled Tinker was not being “disruptive” when she wore a black armband to school to protest the Vietnam war.
Since then, several current Supreme Court associate justices have weighed in on Tinker and similar cases in the lower courts.
Justice Clarence Thomas wrote that the U.S. Constitution “does not protect student speech in public schools” (Morse v. Frederick). Justice Sonia Sotomayor sided with a school district in yet another case when she was on the U.S. Court of Appeals for the 2nd Circuit.
Here lies a case where political, ideological, and philosophical differences do not appear to matter, and justices may have to play Solomon and split the baby in two to render a decision that a majority can support.
Who knows where the wind will blow on this one?
Read more from Leesa K. Donner.