Thanks to one brave high school cheerleader’s years-long fight for justice — over a split-second Snapchat post — student speech rights are stronger nationwide today.
In an opinion issued this morning, the Supreme Court of the United States ruled that Pennsylvania’s Mahanoy Area High School violated former high school cheerleader Brandi Levy’s First Amendment rights by suspending her from the cheerleading team for voicing her frustrations with school, sports, and “everything” in a Snapchat post.
The Court’s 8-1 decision held Levy’s post — which read “Fuck school fuck softball fuck cheer fuck everything” — was protected by the First Amendment, which binds public educational institutions. Levy’s comment, sent via her personal cell phone while off-campus, was directed to her “private circle” of online friends. While there was a risk of “transmission to the school itself,” the Court held that any “discomfort and unpleasantness” that might have followed within that community is not the “sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify” disciplinary action under the “demanding” standard of Tinker v. Des Moines Independent Community School District, the Supreme Court’s seminal 1969 case outlining the First Amendment rights of public grade school students.
Today’s decision in Mahanoy Area School District v. B.L. does not implicate speech rights in higher education, Justice Alito noted in a concurring opinion. Because public college students are different from public grade school students for “several reasons, including the age, independence, and living arrangements of such students,” Justice Alito explicitly noted that “regulation of their speech may raise very different questions from those presented here.”
However, Mahanoy’s analytical framework — identifying three institutional “interests” in regulating speech and “three features” of off-campus speech that merit skepticism of schools’ assertions that their interests are implicated by the speech — provides a strong bulwark against censorship when it comes to the online speech of students at universities and colleges.
The rights of students at institutions across the country, from K-12 schools to graduate schools, are more secure because Brandi Levy had the courage to take a public stand to defend her First Amendment rights — even if it was “just” for a Snapchat post with a few four-letter words.
The first such institutional interest is “in teaching good manners” to students. That is plainly inapplicable to students in universities and colleges, where “good taste” and “conventions of decency” pose no barrier to student and faculty expression. While the second interest — preventing “disruption” of institutional functions — may be implicated in certain higher education functions, “discomfort” in the K-12 context was not sufficient to amount to disruption. The third interest in protecting the “morale” of the cheerleading squad likewise has implications for collegiate sports teams, particularly when team members’ speech (such as kneeling or standing during the national anthem) attracts controversy. (Importantly, the Court did not deign to temper the protection of the First Amendment on the basis that the activity was extracurricular.)
The Court’s majority also identified “three features of off-campus speech that often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on campus speech.”
The first “feature” identified by the Court, the in loco parentis doctrine, is not applicable to higher education. Students at universities and colleges are, broadly speaking, adults; administrators are not serving in a role comparable to that of a parent.
The remaining two features focus not so much on the interests of the institution, but on students’ interests in expressive rights.
For example, the second “feature” recognizes that the ability to speak online means student speech is more likely to be heard, read, seen, or surveilled by their educational institutions — no matter where or when it occurs. That means that any student speech “during the full 24-hour day” might become subject to monitoring or punishment. The Mahanoy Court warns that lower courts must be “more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.” This is doubly so for “political or religious speech” outside of a “school program or activity.”
The third and final feature, the school’s own “interest in protecting a student’s unpopular expression” — likening K-12 institutions to “nurseries of democracy” — is arguably even stronger for students at institutions of higher education. As the Court recognized in 1957, the “essentiality of freedom” to foster the “vital role in democracy” played by universities and colleges “is almost self-evident,” warning:
Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.
Sixty-plus years later, it is reassuring that the Court’s commitment has not wavered. Universities and colleges (and courts that are asked to protect student and faculty rights) would do well to recognize that the Mahanoy Court holds that the institution’s interest is not in preventing speech, but in fostering it — even when that speech is sharply critical of the institution, its employees, and its students. The friend-of-the-court brief FIRE filed alongside the National Coalition Against Censorship and the Comic Book Legal Defense Fund back in March made a related point: “if public grade school administrators may surveil and punish off-campus student expression far beyond the school-house gate, a generation of Americans will be taught a corrosive, illiberal lesson about the illusory value of their constitutional freedoms.” We’re deeply relieved that the Court’s majority rejected that result.
The rights of students at institutions across the country, from K-12 schools to graduate schools, are more secure because Brandi Levy had the courage to take a public stand to defend her First Amendment rights — even if it was “just” for a Snapchat post with a few four-letter words. FIRE congratulates Brandi, her family, and her attorneys from the ACLU of Pennsylvania and the ACLU’s national office on today’s historic win.
In need of First Amendment resources for teachers? The Foundation for Individual Rights in Education has you covered. Our "First Things First" First Amendment textbook for college undergraduates explores the fundamentals of modern American free speech law. Meanwhile, our K-12 First Amendment curriculum modules help educators enrich and supplement their existing instruction on First Amendment and freedom of expression issues in middle and high school classrooms. Explore thefire.org for even more First Amendment educational resources.