When it comes to the free-speech rights of students, it’s still 1969 in the U.S. Supreme Court.
Today the Court ruled 8-1 in favor of a disgruntled high school cheerleader who profanely posted her thoughts about the cheerleading program on Snapchat. That led to a one-year suspension from the program for Brandi Levy, the 14-year-old who shared her disappointment at not making the varsity squad by declaring “F--- school, f---- cheer. f---everything.”
“It might be tempting to dismiss (her) words as unworthy of the robust First Amendment protections discussed herein,” but “sometimes it is necessary to protect the superfluous in order to preserve the necessary,” Justice Stephen Breyer wrote in the majority opinion.
The case had the potential to either expand the free-speech rights of public school students or limit them. It did neither.
The Court essentially reiterated Tinker v. Des Moines Independent Community School District for a digital age.
In that pivotal case, the Supreme Court concluded that students had a right to protest the war in Vietnam by peacefully wearing black armbands, but that administrators could still ban speech that they reasonably could predict would cause substantial disruption to the educational process.
“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Justice Abe Fortas memorably wrote in the 7-2 opinion.
Today’s opinion was less resonant.
In Breyer’s words, “We do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus to a school’s (need to prevent) substantial disruption of learning-related activities or the protection of those who make up a school community.”
The latter point is a nod to those concerned about cyberbullying in schools.
The Court’s decision was quite narrow, leaving us with few takeaways. Public school students still have free-speech rights. Public schools can limit those rights if they anticipate that the speech will cause substantial disruption to the schools.
It’s surprising that the technological shifts of the past 52 years get such short shrift in the Court’s decision. In 1969, an angry cheerleader wanting to share her outrage was pretty much limited to a phone embedded in a wall or note-passing.
In terms of the young cheerleader’s case, this should not have been a close call, and it wasn’t. At the core of freedom of speech is a right to criticize the government. This was a young citizen criticizing a government-operated school and the way it operated its cheerleading program. Her youth and profanity didn’t invalidate her liberty.
The Free Speech Center newsletter offers a digest of First Amendment and news media-related news every other week. Subscribe for free here: https://bit.ly/3kG9uiJ