Supreme Court Rules in Favor of Cheerleader Who Swore Online, in Free-Speech Decision

June 23, 2021 Updated: June 23, 2021

A high school cheerleader’s First Amendment rights were violated when Pennsylvania school officials disciplined her for a profanity-laced rant on social media, a near-unanimous Supreme Court ruled.

The 8–1 ruling on June 23 is a defeat for the Biden administration, which had urged the court to let school districts suppress free speech by students on social media if they deem it potentially disruptive to school operations.

The court opinion in the case, Mahanoy Area School District v. B.L., court file 20-255, was written by Justice Stephen Breyer. Justice Clarence Thomas filed a dissenting opinion.

Long before the internet became part of Americans’ daily lives, the court held in Tinker v. Des Moines Independent Community School District (1969) that even though students do not “shed their constitutional rights to freedom of speech or expression … at the school house gate,” public school officials may “prescribe and control conduct in the schools” and discipline primary and secondary school students for speech that “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”

The student involved in the case, Brandi Levy, was a minor at the time the lawsuit was initiated. Legal files reduced her name to initials to protect her identity.

In 2017, when Levy was 14 and a freshman, she made the Mahanoy Area High School junior varsity cheerleading team, but as a sophomore, she failed to advance to the varsity squad, remaining on junior varsity. She also tried out for right field on a private softball team but wasn’t selected.

On a Saturday when she wasn’t present at school, she visited Snapchat, where messages automatically disappear after 24 hours. She posted a photograph of herself and a friend, middle fingers extended, alongside the caption, “[Expletive] school [expletive] softball [expletive] cheer [expletive] everything.” In another post, she wrote: “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?”

Screenshots of the messages found their way to students and teachers, according to the court, and officials suspended her from the cheerleading team for a year.

Levy and her parents sued and won a summary judgment against the school district because, in the trial court’s view, the social media posts hadn’t caused substantial disruption at the school. Because the punishment ran afoul of the First Amendment, the court awarded Levy nominal damages and attorneys’ fees and ordered the school to expunge her disciplinary record.

The U.S. Court of Appeals for the 3rd Circuit affirmed the decision. A majority of the panel ruled that the Tinker precedent didn’t apply because schools had no special license to regulate student speech occurring off campus.

In its new decision, the Supreme Court agreed that Levy’s rights had been violated but rejected the appeals court’s finding that Tinker didn’t apply. Although the school district was not justified in restricting Levy’s speech off campus in this case, it remains free to regulate off-campus speech in certain situations.

“Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus,” Breyer wrote for the high court.

“The school’s regulatory interests remain significant in some off-campus circumstances,” such as “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”

But the court determined there was no evidence of “substantial disruption” sufficient to justify restricting Levy’s speech.

“Rather, the record shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class ‘for just a couple of days,’” and that some members of the cheerleading team were ‘upset’ about the content of B.L.’s Snapchats. But when one of B.L.’s coaches was asked directly if she had ‘any reason to think that this particular incident would disrupt class or school activities other than the fact that kids kept asking … about it,’ she responded simply, ‘No.’”

Quoting from Tinker, Breyer wrote that the precedent requires school officials “to justify prohibition of a particular expression of opinion” by showing they acted based on “something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

“The alleged disturbance here does not meet Tinker’s demanding standard.”

“It might be tempting to dismiss B.L.’s words as unworthy of the robust First Amendment protections discussed herein,” Breyer wrote. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

“We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege … fundamental societal values are truly implicated,” the justice wrote, quoting directly from the court’s 1971 ruling in Cohen v. California.

In his dissent, Justice Thomas criticized the majority for not “even mentioning the 150 years of history supporting” the other side.

“A more searching review reveals that schools historically could discipline students in circumstances like those presented here. Because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent.”