Brandi Levy’s snapchat teed up an issue that needed to be resolved. It was after school hours. It was outside of school. It was on the internet. But it related to school, and a screen cap of her speech was shown to a coach and she was punished for it.
The case concerned Brandi Levy, a Pennsylvania high school student who had expressed her dismay over not making the varsity cheerleading squad by sending a colorful Snapchat message to about 250 people.
She sent the message on a Saturday from the Cocoa Hut, a convenience store popular with teenagers. It included an image of Ms. Levy and a friend with their middle fingers raised, along with a string of words expressing the same sentiment. Using a swear word four times, Ms. Levy objected to “school,” “softball,” “cheer” and “everything.”
While the actual language might be too vulgar for the likes of the New York Times, it wasn’t for Justice Stephen Breyer, writing for the 8-1 majority in Mahanoy Area School v. Levy.
The first image B. L. posted showed B. L. and a friend with middle fingers raised; it bore the caption: “Fuck school fuck softball fuck cheer fuck everything.”
After Tinker v. Des Moines established that students’ right to speech doesn’t end at the schoolhouse gate, the rule was that it was only subject to regulation if it caused substantial disruption to the educational function of a school. But there was no internet then. No social media. Speech outside of school generally stayed outside of school in the old days, but student speech on social media was everywhere. Where the line was drawn, if a line was drawn, had monumental implications for student speech.
After hours, off school grounds, wouldn’t change the impact of speech on the school community, the student population. The old lines blurred and presented the potential that schools could “police” students on social media as speech would find its way into the schoolhouse. The Supreme Court, thankfully, refused to give schools such ubiquitous control, establishing a three considerations for when schools could regulate off-campus speech.
First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco parentis treats school administrators as standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.
Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means 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. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.
Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, “I disapprove of what you say, but I will defend to the death your right to say it.” (Although this quote is often attributed to Voltaire, it was likely coined by an English writer, Evelyn Beatrice Hall.)
These considerations, while short of a categorical rule as the Third Circuit held, suggest that student internet speech will rarely be subject to school regulation, and the schools will have a very high burden to show that justification for disciplining students for speech on social media. However, what the Supreme Court gave with one hand, it took away with the other.
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. The school’s regulatory interests remain significant in some off-campus circumstances. The parties’ briefs, and those of amici, list several types of off-campus behavior that may call for school regulation.
It’s certainly understandable that the school district and its friends argued against a clear categorical rule so they maintained some level of control over student speech on the internet. What’s curious is that Levy, represented by the ACLU*, agreed that there were greater concerns than free speech. What would they be?
These include 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.
The same emotion-laden vagaries, bullying or harassment, mostly defined by the harm claimed by those who purport to be victims and are subject to constant challenge, provide schools with a huge exception with which to regulate a wide berth of speech. This is particularly troubling at a time when extremely sensitive people claim any criticism to be bullying or harassment. Given the nature of social media and the ease with which students are traumatized, this may well prove to be the exception that swallows the rule and launches a thousand expulsions and lawsuits.
in Tinker, the Court held that students’ free speech doesn’t end at the schoolhouse gates. In Mahanoy, the Court held that schools’ regulatory authority doesn’t end at the schoolhouse gates either if someone’s feelings are hurt on social media. The holding is a win for free speech, but how much of a win remains to be seen.
*Levy was represented by the ACLU, which not only immediately used the case to burnish its First Amendment cred even though it does nothing to counter the fact that it only defends free speech when that speech doesn’t conflict with its more valued social justice agenda, but to sell t-shirts and profit off the case.
Say it with us:
— ACLU (@ACLU) June 23, 2021