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<\/p>\nLike every high school freshman ever, 14-year-old Brandi Levy had a bad week. She missed the cut for her high school\u2019s varsity cheerleading team. She struggled at softball practice. And she worried about her final exams.\u00a0So like every high school freshman, Levy\u00a0vented. \u201cF—\u00a0school f—\u00a0softball f—\u00a0cheer f—\u00a0everything,\u201d she posted\u00a0to her friends on Snapchat on a Saturday afternoon.<\/p>\n
Unlike every other high school freshman, Levy\u2019s angry snap spawned a controversy that is now before the Supreme Court.<\/p>\n
Levy\u2019s 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\u2019s right to free speech, and the Supreme Court will hear oral argument in her case Wednesday.<\/p>\n
When contemplating major Supreme Court cases, our natural tendency is to focus on who should win. Counterintuitively, that\u2019s not what matters most in\u00a0Mahanoy Area School District v. B.L.<\/p>\n
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\u00a0loses can still protect their interests even after an adverse ruling.<\/p>\n
The question in\u00a0Mahanoy\u00a0concerns the proper application of a canonical First Amendment decision,\u00a0Tinker v. Des Moines. In\u00a0Tinker, the Supreme Court famously held that although students do not \u201cshed their constitutional rights …\u00a0at the schoolhouse gate,\u201d the First Amendment permits public schools to punish students for speech that would \u201csubstantially disrupt\u201d school activities.\u00a0<\/p>\n
Tinker\u00a0concerned three students who were suspended for wearing black armbands to protest the Vietnam War. The court ruled that this violated the students\u2019 right to free speech because their protest caused little in-school disturbance.<\/p>\n
Levy\u2019s speech was different in a crucial respect. Unlike the armbands in\u00a0Tinker, which were worn on campus, Levy\u2019s speech took place entirely off-site.<\/p>\n
<\/p>\n
Brandi Levy wears her former cheerleading outfit outside Mahanoy Area High School in Mahanoy City, Pa., on April 4, 2021. (Photo: Danna Singer, AP)<\/span><\/p>\n The 3rd Circuit Court of Appeals thus held that\u00a0Tinker\u2019s carveout for student speech that would\u00a0\u201csubstantially disrupt\u201d school activities did not apply in the first place. Levy\u2019s expression accordingly enjoyed full First Amendment protection.<\/p>\n It\u2019s easy to sympathize with Levy\u2019s plight. Yet\u00a0the 3rd Circuit\u2019s reasoning is also quite worrisome. Perhaps that court was correct that she shouldn\u2019t have been punished for her casual weekend snaps, but surely students who engage in more dangerous off-site speech should be.<\/p>\n Consider the\u00a0tragic story\u00a0of Mallory Grossman,\u00a012, a\u00a0middle 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\u00a0relentless bullying, much of it online.<\/p>\n Schools must have the power to crack down on the perpetrators of such harmful and pernicious speech, even if it takes place off-campus.<\/p>\n But the interests on Levy\u2019s side of the case are significant, too. Levy\u2019s speech threatened no student or school employee. She simply wanted to vent a little and live her life.<\/p>\n To allow the school district to punish her for such relatable frustrations \u2014 feelings that teenagers around the nation share everyday online \u2014 would dangerously stifle free expression among the very young people whom schools are supposed to teach that value.<\/p>\n Who, then, should win the case? Happily, the answer is not as important as one might expect given the gravity of the conflict.<\/p>\n The reason is that whoever loses on the technical legal question \u2014 whether\u00a0Tinker\u00a0applies to off-campus speech \u2014 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.<\/p>\n 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\u00a0Tinker\u2019s substantial disruption standard, that is not the end of Levy\u2019s case. She can (and should) still prevail if her snap did not actually create such a disruption.<\/p>\n As it turns out, the district court ruled in her favor on\u00a0exactly this basis. Apart from a few comments from upset students \u2014 precisely the kind of reaction generated by the protests in\u00a0Tinker \u2014 Levy\u2019s snap caused no disruptive effect in school. \u00a0<\/p>\n 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\u00a0Tinker\u00a0has no application to off-campus speech.<\/p>\n 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\u00a0or harasses others because such speech is\u00a0not protected under standard First Amendment principles.<\/p>\n Tellingly, Levy\u00a0agrees. As her\u00a0brief\u00a0puts it, \u201cOrdinary First Amendment standards \u2026\u00a0already permit schools to regulate harassment and bullying, including when they are carried out by speech.\u201d<\/p>\n 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\u00a0Mahanoy Area School District\u00a0shows why it is important to look beyond the court and focus on what happens\u00a0after\u00a0the court issues its decisions.\u00a0Sometimes, the side that loses a monumental case will still have meaningful options for avoiding harm.<\/p>\n Indeed,\u00a0I\u2019ve argued\u00a0that the Supreme Court is increasingly deciding hard cases with\u00a0this important idea in mind: A\u00a0number of its recent opinions have reminded losing litigants of their other avenues for redress.<\/p>\n 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\u00a0Mahanoy\u00a0and the\u00a0other cases\u00a0on its docket.<\/p>\nFree expression at stake<\/h2>\n
Both sides need good options<\/h2>\n