Why Supreme Court case about cheerleader’s Snapchat rant matters to students everywhere

Like every high school freshman ever, 14-year-old Brandi Levy had a bad week. She missed the cut for her high school’s varsity cheerleading team. She struggled at softball practice. And she worried about her final exams. So like every high school freshman, Levy vented. “F— school f— softball f— cheer f— everything,” she posted to her friends on Snapchat on a Saturday afternoon.

Unlike every other high school freshman, Levy’s angry snap spawned a controversy that is now before the Supreme Court.

Levy’s message, it turns out, found its way to her cheerleading coaches, who suspended her from the team. Two lower courts ruled that this violated Levy’s right to free speech, and the Supreme Court will hear oral argument in her case Wednesday.

When contemplating major Supreme Court cases, our natural tendency is to focus on who should win. Counterintuitively, that’s not what matters most in Mahanoy Area School District v. B.L.

What matters more is what the court says about what comes next for the losing side. If the justices are wise, they will write an opinion ensuring that who loses can still protect their interests even after an adverse ruling.

The question in Mahanoy concerns the proper application of a canonical First Amendment decision, Tinker v. Des Moines. In Tinker, the Supreme Court famously held that although students do not “shed their constitutional rights … at the schoolhouse gate,” the First Amendment permits public schools to punish students for speech that would “substantially disrupt” school activities. 

Tinker concerned three students who were suspended for wearing black armbands to protest the Vietnam War. The court ruled that this violated the students’ right to free speech because their protest caused little in-school disturbance.

Levy’s speech was different in a crucial respect. Unlike the armbands in Tinker, which were worn on campus, Levy’s speech took place entirely off-site.

Brandi Levy wears her former cheerleading outfit outside Mahanoy Area High School in Mahanoy City, Pa., on April 4, 2021. (Photo: Danna Singer, AP)

The 3rd Circuit Court of Appeals thus held that Tinker’s carveout for student speech that would “substantially disrupt” school activities did not apply in the first place. Levy’s expression accordingly enjoyed full First Amendment protection.

It’s easy to sympathize with Levy’s plight. Yet the 3rd Circuit’s reasoning is also quite worrisome. Perhaps that court was correct that she shouldn’t have been punished for her casual weekend snaps, but surely students who engage in more dangerous off-site speech should be.

Consider the tragic story of Mallory Grossman, 12, a middle school student who was so brutally harassed by her classmates through Snapchat and other off-campus social media that she took her own life. Or Phoebe Smith, a 15-year-old freshman who hung herself after being victimized by relentless bullying, much of it online.

Schools must have the power to crack down on the perpetrators of such harmful and pernicious speech, even if it takes place off-campus.

But the interests on Levy’s side of the case are significant, too. Levy’s speech threatened no student or school employee. She simply wanted to vent a little and live her life.

Free expression at stake

To allow the school district to punish her for such relatable frustrations — feelings that teenagers around the nation share everyday online — would dangerously stifle free expression among the very young people whom schools are supposed to teach that value.

Who, then, should win the case? Happily, the answer is not as important as one might expect given the gravity of the conflict.

The reason is that whoever loses on the technical legal question — whether Tinker applies to off-campus speech — should still enjoy a meaningful strategy for protecting their interests moving forward. The key is for the Supreme Court to say so in any opinion it writes.

Start with a ruling against Levy. If the Supreme Court holds that school districts can, in fact, punish students for off-campus speech that meets Tinker’s substantial disruption standard, that is not the end of Levy’s case. She can (and should) still prevail if her snap did not actually create such a disruption.

As it turns out, the district court ruled in her favor on exactly this basis. Apart from a few comments from upset students — precisely the kind of reaction generated by the protests in Tinker — Levy’s snap caused no disruptive effect in school.  

Or consider a possible ruling against the school district. If the court wishes to protect the expressive interests of young people like Levy, it can affirm that Tinker has no application to off-campus speech.

But if it does that, it can (and should) also make clear that schools retain the power to punish students for off-campus speech that threatens, bullies or harasses others because such speech is not protected under standard First Amendment principles.

Tellingly, Levy agrees. As her brief puts it, “Ordinary First Amendment standards … already permit schools to regulate harassment and bullying, including when they are carried out by speech.”

Both sides need good options

The outcome of Supreme Court rulings on major societal conflicts can feel like a matter of life or death, so battles over the Supreme Court often feel the same way. That is especially true in this polarized moment. But a case like Mahanoy Area School District shows why it is important to look beyond the court and focus on what happens after the court issues its decisions. Sometimes, the side that loses a monumental case will still have meaningful options for avoiding harm.

Indeed, I’ve argued that the Supreme Court is increasingly deciding hard cases with this important idea in mind: A number of its recent opinions have reminded losing litigants of their other avenues for redress.

By signaling the availability of these post-defeat responses, the court ensures that its decisions avoid all-out losers. The court should continue on this promising path, both in Mahanoy and the other cases on its docket.

Aaron Tang is a law professor at the University of California, Davis. He was a law clerk to Justice Sonia Sotomayor and a middle school history teacher in St. Louis, Mo. Follow him on Twitter: @AaronTangLaw

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