Student speech advocates will likely claim the ruling as a victory, although it was very narrow. The court ruled that while schools do maintain some interest in regulating students’ off-campus speech, the factors in the case of the cheerleader, Brandi Levy, weighed against the school’s actions.
“[T]he school argues that it was trying to prevent disruption, if not within the classroom, then within the bounds of a school-sponsored extracurricular activity,” Justice Stephen Breyer wrote in an opinion that was joined by all of his colleagues but Justice Clarence Thomas, who dissented.
Brandi Levy speaks with Fox News’ David Spunt about a Supreme Court case stemming from a pair of Snapchats she posted as a sophomore in high school. (Fox News)
“But we can find no evidence in the record of the sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify the school’s action,” Breyer continued.
Then-high school sophomore Brandi Levy was given the boot from her junior-varsity cheer team after issuing an off-campus screed in which she said “F— school f— softball f— cheer f— everything,” and posted it online.
The school district and those who sided with it said that schools should be able to punish off-campus speech like Levy’s as part of their efforts to regulate cyber-bullying. But Breyer and the justices who sided with him said such off-campus speech limits must be light because “when coupled with regulations of on-campus speech,” off-campus limits “include all the speech a student utters during the full 24-hour day.”
“It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein,” Breyer said. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
The justices’ opinion was not as sweeping as that of the appeals court below it, which Breyer noted held the school could not discipline Levy for “engaging in a form of pure speech” because it was off campus.
“The school’s regulatory interests remain significant in some off-campus circumstances,” it continued. “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.”
But nevertheless, the school could not discipline Levy, the court said, because her speech in this instance was not disruptive.
Justice Clarence Thomas issued a dissent arguing that the majority did not look closely enough at the precedents about how schools may punish students for speech that happens outside of school but could affect what happens inside of the schoolhouse gates.
“A school can regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the school, its faculty or students, or its programs,” Thomas wrote.
Thomas continued to argue that the Supreme Court’s student-speech jurisprudence is “untethered from any textual or historical foundation” and said the majority “depart[ed] from the historical rule” without explaining why.
Thomas also highlighted an issue that’s been nagging at the Supreme Court and other federal courts for years – that federal law is struggling to keep up with rapid advances in technology. In this case, Thomas notes that though Levy’s speech was created in one location, it could be heard in the school.
“Unlike Tinker, which involved a school’s authority under a straightforward fact pattern, this case involves speech made in one location but capable of being received in countless others—an issue that has been aggravated exponentially by recent technological advances,” Thomas wrote.