Free Speech and a Cheerleader

Cheerleaders used to be known for their chant, Rah, Rah, Sis, Boom, Bah! Now they apparently are also known for profanity and establishing law about free speech. In the recent case of Mahanoy Area School District v. B.L. (referring to Brandi Levy), the U.S. Supreme Court addressed the issue of whether schools can regulate off-campus social media speech that materially and substantially disrupts the school environment without violating the First Amendment. In an 8-1 majority decision the Court ruled that Levy’s explicit online language about her school was protected under the First Amendment.

This case stemmed back to a 2017 Snapchat posting, where the then 14-year-old Levy, a student at Mahoney Area High School, along with a friend, on a weekend and away from school property, shared a picture of them with their middle fingers raised and the caption “Fuck school fuck softball fuck cheer fuck everything.” This incident occurred after Levy did not receive a spot on her high school’s varsity cheerleading team, but was given a spot on the junior varsity team for one year.

Some high school students who received the post reported Levy to her cheerleading coaches, and she was suspended from her cheerleading team for a year for violating the team’s rules. Her appeal of the suspension to school officials was unsuccessful, and her doting parents, who should be proud that at least their daughter has a grasp on vulgar language, if not grammar, and eventually the ACLU, who accepted the case on behalf of the Levy family, sued the School District.

Levy’s parents argued that the school did not have the right to punish their blessed child for her behavior and speech conducted outside of the school premises, and which did not substantially disrupt the school environment. Levy’s arguments prevailed at the initial court level, and on appeal. The School District brought the case to the Supreme Court because they were confused, as other courts have stated that there are times when schools can constitutionally regulate off-campus student speech. Courts in Pennsylvania generally defer to schools because they don’t want to be flooded with the “I got a B, but I should have gotten an A” arguments which would flood the courts. There is a dearth of case law in Pennsylvania that is supportive of students’ rights outside of the disability arena.

Although the Supreme Court, in a clear as mud decision, ruled that Levy’s explicit language online was protected under the First Amendment, it also stated that school administrators have the power to punish student speech occurring online or out of the classroom if it disrupts the environment or invades the rights of others. This disruptive behavior includes severe bullying, harassing or other disruptive actions that occur off campus. An exhaustive list of when regulation would be permissible was not provided by the Court.

This was the first time in more than 50 years that a student won a free speech case in the Supreme Court. Litigating a case all the way to the Supreme Court is a difficult and costly process, and very few cases are accepted for a hearing. Thus, this case set a legal precedent for public schools on how to handle student speech rights concerning off-campus and online speech. This case establishes factors that courts can now use to determine the rights of school administrators to punish students for language and behavior conducted outside of the classroom. It suggests that some incidents are better suited for parents to handle rather than school administrators. Because Levy’s speech was only vulgar, rather than threatening or obscene, was another factor in Levy’s favor.

It is likely that the Supreme Court accepted this case because what is considered “on campus” or “off campus” these days is unclear and challenging. With social media, online platforms, and cellphones, students can easily remain in contact with one another while off campus; and speech, which is lasting and memorialized, can quickly circulate to an entire school and impact a school environment.

In conclusion, the issue of free speech for students has become complicated as social media has grown tremendously and expanded to many platforms. Further the COVID-19 pandemic, requiring online learning, without a formal physical school campus, but a continuation of the school environment, complicates things even further.

Faye Riva Cohen, Esquire is the founder and managing attorney of the Law office of Faye Riva Cohen, P.C. in Philadelphia, PA. She writes a blog called “Tough Lawyer Lady.” She represents clients in labor, discrimination, family law, real estate, and estate litigation issues. If you have a civil rights, discrimination, or freedom of speech issue of your own, please contact Attorney Cohen at 215-563-7776. Her office is located at 2047 Locust St. in an historic brownstone. She can be reached at 215-563-7776 or at frc@fayerivacohen.com.

Attorney Cohen acknowledges the writing assistance of Gillian Southworth, one of the Firm’s summer law clerks, who is a student at Duquesne University School of Law.