Justices Weigh Cheerleader’s Free Speech Case & Struggle With How To Ultimately Rule

April 29, 2021

The Supreme Court yesterday heard arguments “in the case of a 14-year-old high school freshman’s Snapchat F-bombs,” as Mark Sherman with The Associated Press reports. SCOTUSDaily readers know by now that this case involves a high school cheerleader who took to her Snapchat to rant about not making it onto the varsity squad. That rant that was meant for her limited online following was ultimately reviewed by Supreme Court justices — F-bombs and all. Sherman reports the justices “struggled to fit the need to protect students’ political and religious expression with the ability of schools to get at disruptive, even potentially dangerous, speech that occurs outside the school setting.”

“In a freewheeling two-hour argument on free speech in the age of social media, the Supreme Court seemed inclined to reject an appeals court’s sweeping ruling that the First Amendment does not allow public schools to punish students for what they say outside school grounds. Instead, the justices seemed to favor a modest decision that would leave many difficult questions unanswered.” That’s Adam Liptak with The New York Times giving his read on the Supreme Court’s hearing of the cheerleader’s case yesterday. The cheerleader, BRANDI LEVY, was suspended from cheerleading by her school for her Snapchat post. Her lawyer argued before SCOTUS she was wrongfully punished for “merely expressing frustration with a four-letter word to her friends outside of school on a weekend.” DAVID D. COLE with the ACLU said, “Her message may seem trivial, but for young people, the ability to voice their emotions to friends without fear of school censorship may be the most important freedom of all.”

Nina Totenberg with NPR notes the cheerleader’s case has been billed as the most important student speech case since 1969 when the Supreme Court handed down a landmark ruling in a dispute over students wearing black armbands to school to protest the Vietnam War. “By a vote of 7-to-2 the high court ruled at the time for the first time that kids do have First Amendment free speech rights at school, unless school officials reasonably forecast it will cause disruptions.” However, the justices yesterday struggled with whether schools can punish students for their “online but off campus speech,” as Totenberg puts it. JUSTICE STEPHEN BREYER noted, “If swearing off-campus did [qualify], my goodness, every school in the country would be doing nothing but punishing.” JUSTICE BRETT KAVANAUGH, who coaches his daughters’ sports teams, acknowledged that even MICHAEL JORDAN had sore feelings after not making varsity in high school. “But, the justices wanted to know, what about cases of harassment and bullying? After all some 47 states require enforcement of anti-bullying laws. JUSTICE KAGAN posited an off campus website set up by high school boys to rank their female classmates’ appearance and sexual availability. All of the justices probed repeatedly for workable standard to adopt — a rule that would guide schools as to how to handle these tricky questions.”

“The Supreme Court Is ‘Frightened to Death’ by the Case of a Foul-Mouthed Cheerleader” — yep, that’s the best headline of the day topping off a piece from Mark Joseph Stern with Slate. Stern explains this case makes it hard to “carve a one-size-fits-all doctrine out of a case with such subtleties.” JUSTICE STEPHEN BREYER expressed his concern with just how hard this case will be to settle when he said during arguments yesterday, “I’m frightened to death of writing a standard.” CHIEF JUSTICE JOHN ROBERTS asked whether it was even possible to draw a line between on- and off-campus speech. “If a text or a Snap that you send, you send from the park and it’s read in the cafeteria, is that off campus or on campus?” Stern writes, “Most of the court seemed to think Levy should win but feared a decision in her favor might tie schools’ hands, preventing them from enforcing discipline or protecting vulnerable students. Say what you will about THOMAS, but at least his absolutist opposition to students’ free speech offers clarity. In their quest for some middle ground, the rest of the justices may devise new rules that make everyone else wish the court had kept its mouth shut.”