How free is free speech for off-campus teens?
Brandi Levy was denied a place on a varsity cheerleading squad, but the U.S. Supreme Court last month guaranteed the Pennsylvania teenager a place in history: the first high schooler to win a free speech case at the nation’s top court in more than 50 years.
On Thursday, the court’s decision upholding the student’s expletive-laced — but protected — speech will be the focus of a webinar sponsored by the New York State Bar Association’s Committee on Law, Youth and Citizenship. It runs from 1 to 2:30 p.m.
Moderated by Seth Gilbertson, associate counsel for SUNY’S Office of University Counsel, the webinar will examine how far schools can go to regulate the speech of students off school grounds, especially in a digital age where teens are glued to their cellphones and social media apps.
The forum will include three panelists: Jay Worona, the New York State School Boards Association’s deputy executive director and general counsel, Candace J. Gomez, co-chair of the firm of Bond, Schoeneck & King’s school law practice; and Robert Ruggeri, senior managing counsel of the State University of New York.
The program is titled: “Regulation of Student (and Cheerleader)
Speech: ‘F— School’? SCOTUS Mahanoy Area School District v. B.L.”
“What’s important about the case, really, is it is the first time the Supreme Court has ever had occasion to examine the parameters of the First Amendment with respect to kids and what they say off campus,” Worona told Law Beat. “The internet makes it even more important, I suppose.”
Worona, an Albany Law
School graduate and Slingerlands resident who has argued before the Supreme Court and won, will discuss the implications of the Levy ruling for public education, he said.
The Supreme Court’s June 23 decision relied heavily on its landmark 1969 ruling in Tinker vs Des Moines Independent Community School District, a matter involving five students who wore black armbands to school to protest the Vietnam War. The students prevailed in what was the first time the Supreme Court examined the First Amendment rights of students.
Tinker also established that school districts can discipline students for speech off school grounds if it “materially disrupts class work or involves substantial disorder or invasion of the rights of others.”
In the 52 years since Tinker, lawyers for students brought three free-speech cases before the Supreme Court. Each time, they lost. The Supreme Court carved out exceptions to its 1969 ruling — backing districts that disciplined students for on-campus speech considered vulgar, that was inconsistent with the school’s educational mission, or that promoted drug use — without overturning the Tinker ruling.
Then came Levy, a high school student in the Mahanoy
Area High School district in eastern Pennsylvania who wanted to join her high school’s varsity cheerleading squad in 2017. After being denied, Levy responded — off campus — in expletive-laced Snapchat posts slamming the school’s decision.
“F—k school, f—k softball f—k cheer f—k everything,” Levy remarked in one post with her middle fingers raised.
Profane, sure. But punishable?
The school suspended Levy from being on the junior varsity cheerleading squad for the next year. Levy and her parents sued in federal court, arguing the suspension violated the First Amendment, and prevailed. The Third Circuit of the U.S. Court of Appeals upheld the decision — and further found that schools could not discipline students for any off-campus speech. The Supreme Court upheld the Third Circuit’s ruling, but disagreed with the broadness, saying schools should be allowed to discipline students for off-campus speech, such as bullying behavior.
Worona told Law Beat it would have been a “major, major problem for school districts” if the Supreme Court agreed with the broadness of the Third Circuit’s decision. He said he believes school districts will still be able to use measures against students who bully other students or threaten violence against the school.
“The main point of this case is not necessarily how precedentially
binding it is,” Worona said. “Why it is so important is it is the first internet case and they had something to say about that. And they also had something to say to the Third Circuit.”
School districts in New York might have been confident the Pennsylvania district would prevail over Levy based on a 2011 ruling at the U.S. Court of Appeals for the Second Circuit in Manhattan. That ruling upheld the discipline of a student
who, in a blog post off campus, called school officials “d—bags” for canceling a battle-of-thebands concert. The student used a school computer to send out a mass email asking people to call the superintendent. As punishment, the school prohibited the student for running for class office. The Supreme Court did not take that case up.
In the Levy ruling, Associate Justice Stephen Breyer wrote that “the school itself has an interest in protecting a student’s
unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy.”
Justices agreeing with Breyer included Chief Justice John Roberts, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, Amy Coney Barrett, Neil Gorsuch and Samuel Alito, the latter two justices writing concurring opinions. The lone dissenter was Associate Justice Clarence Thomas.