A Cheerleader Goes to the Supreme Court

The Supreme Court considers a major First Amendment case

I’m Scott Nover. Welcome back to Pressing, a newsletter about press freedom. If you haven’t yet subscribed, you can do so here and receive this letter in your inbox every Tuesday morning.

This is the 71st issue of Pressing and it’s great to have you with me. Please send me feedback, thoughts, suggestions, and tips at sgnover@gmail.com.

A Cheerleader Goes to the Supreme Court

“Fuck school, fuck softball, fuck cheer, fuck everything,” Brandi Levy posted on Snapchat in 2017. That post on social media—made on a weekend, outside of her public school’s grounds—is now the subject of a major First Amendment case in the hands of the Supreme Court.

Tomorrow, the Supreme Court’s nine justices will hear oral arguments for Mahanoy Area School District v. B.L., the case concerning whether the Pennsylvania school district violated Levy’s constitutional protections in suspending her from the school cheerleading squad for her off-campus comments.

The Court precedent that most directly applies is the 1969 case Tinker v. Des Moines, in which the justices ruled in favor of Mary Beth Tinker, a public school student in Iowa who wore a black armband to school in protest of the Vietnam War. The ruling established the Tinker test, which determines whether student speech is substantially disruptive insomuch that a public school administration can stifle that speech in the name of preserving order at the school. You may recognize this quote from Tinker:

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” — Tinker v. Des Moines (1969)

Levy has won in federal district court and federal appeals court, so the Court’s decision to hear it is rather worrying for me and others who hope Levy wins out.

Frank LoMonte at the University of Florida argued most eloquently in favor of Levy in a recent Slate article:

It is one thing to say that a school can dictate how students speak to one another in class, but quite another to say that it has equal authority to dictate how students speak to the entire world, and that all speech must always be suitable for the classroom.

This proposition is clear in normal times, but we are certainly not living in normal times. The Zoom-ification of public school presents an interesting contextual challenge for Levy and her legal team at the American Civil Liberties Union. With students behind screens, could an off-screen activity disrupt virtual school? Potentially. But, the context of this case is crucial. This is speech that happened away from school on a weekend in 2017—and Levy was punished for it.

Other opponents of Levy, including the Biden administration for some reason, assert that restricting schools’ abilities to censor speech also limits their abilities to prevent harassment and bullying. Here’s LoMonte:

That’s nonsense. Speech that is severe enough to violate state bullying laws is already unprotected by the First Amendment, which allows the government to punish harassment.

Judge Cheryl Ann Krause, an Obama appointee on the Third Circuit, which upheld the district court opinion, implied that a victory for the school district would curb students’ free speech rights in all walks of life, a troubling idea in a time when teenagers engage in an ungodly amount of digital communication every day outside of school.

“New communicative technologies open new territories where regulators might seek to suppress speech they consider inappropriate, uncouth, or provocative,” Krause wrote. “And we cannot permit such efforts, no matter how well intentioned, without sacrificing precious freedoms that the First Amendment protects.”

LoMonte says that the Levy decision will almost certainly impact public college and university students too. “Every time the Supreme Court has decided a First Amendment case at the K–12 level, college lawyers have raced to court and convinced judges to afford them the same level of control,” he said.

“Regardless of how the Supreme Court may hedge its opinion, the reality is that Levy’s case will set the standard for adult-age college students for decades. And while losing a year of extracurricular activities might be survivable for a 14-year-old, it could be devastating for a 19-year-old. Being kicked off a sports team can mean losing free college tuition, a place to live, a meal plan, and health coverage.”

Wednesday will bring oral arguments for Levy’s case. Every student and parent who relies on America’s public schools should pay attention.

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