Supreme Court Considers The Case Of The Cussy Cheerleader
"fuck school fuck softball fuck cheer fuck everything."
Those words, posted by a frustrated cheerleader to social media, are now in front of the Supreme Court.
This week, the Court heard arguments in Mahanoy Area School District v. B.L., a case that could shape students' rights for a generation.
Here's what happened
In 2017, Brandi Levy was a sophomore at Mahanoy Area HIgh School in Pennsylvania. She tried out for the varsity cheerleading squad, didn't make the cut, and was assigned to the junior varsity team instead. Frustrated, she posted a picture of herself and a friend flipping off the camera to Snapchat, with the caption "fuck school fuck softball fuck cheer fuck everything."
Someone sent another cheerleader a screenshot of the post and she narced to her mom, who was one of the cheerleading coaches. While one would hope that grown-ass adults would be above wading into teenage cheerleading drama, they instead were the ones who esalated things.
This is normal teenager stuff that happens literally every day. But the adults found themselves incapable of being the grown-ups in the room. In the end, Levy (now attending Bloomsburg University of Pennsylvania ) got kicked off of the cheerleading squad for a year as punishment for ... using a swear on the internet.
Okay, now we can continue.
Schools and speech
Levy was off-campus — and it was the weekend — when she posted her snap, so the issue here is what authority the school has to punish her. And this is, believe it or not, the first Supreme Court case to really get into students' free speech rights on social media.
As social media became ubiquitous for young people, public schools and courts alike have struggled with what to do about it. Issues about speech outside of school run the gamut in terms of seriousness. One the one side, you have things like a cheerleader using a swear word on the internet outside of school, which should — fairly obviously, IMO — be outside the reach of school discipline. But, on the other end of the spectrum, you have bullying so pervasive it drives children to suicide.
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students… are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.
Since Tinker, courts have looked at whether speech happened on-campus or off-campus as an important component of when schools can punish student speech. Under the traditional case law, schools can't punish off-campus speech unless it's at a school-related event. This was the justification the Court used in 2007 to uphold the "BONG HiTS 4 JESUS" kid's suspension in Morse v. Frederick — he held up said banner at a school-sponsored event.
This case is about more than an outsized punishment for something a public school has no business intervening in. If the school district has its way, schools will be able to punish students for all kinds of speech, no matter where or when or how it happens, if it "disrupts" the school environment.
How this one ends up is anyboody's guess — especially because this is exactly the type of case that can result in strange bedfellows. The traditional liberal and conservative labels don't always hold when it comes to issues of free speech. The ACLU's national legal director, David Cole, who argued the case on behalf of Brandi Levy, told the Washington Post that, "You won't find another case in the past decade with such a diverse range of groups on the same side. We have support from the right to the left, from students to administrators, from civil rights groups, religious liberty organizations and red states." The Biden administration, on the other hand, sided with the school.
Right now, the only justice whose vote seems clear is Clarence Thomas, who wrote a concurrence in Morse to say that he thinks students have no free speech rights whatsoever and Tinker was wrongly decided. Because of course he did.
At the argument, most of the judges seemed to struggle weighing the facts of this case against any broader rules the Court could set. The justices acknowledged this, with Justice Breyer saying, "As far as I can see, I can't write a treatise on the First Amendment in this case." Justice Kegstand agreed, saying he "strongly share[d] Justice Breyer's instincts [...] that we probably can't write a treatise here and shouldn't write a treatise here and can't foresee all the things that could arise in a lot of the hypotheticals that have been raised."
Based on how oral arguments went, the best outcome would probably be SCOTUS punting the issue of punishing off-campus speech and just saying Levy's speech was protected. This is a complicated issue and a confused Supreme Court issuing a ruling when it doesn't fully grasp the nuances of free speech in the age of the internet can't be a good thing for anyone.
Fuck this school, fuck this case, fuck everything
This case is a school overstepping its bounds and punishing a teenager for normal teenage behavior that happened outside of school. The Court doesn't need to write a treatise on First Amendment law to see that the outcome here was wrong.
Brandi Levy vented about something frustrating on social media. She didn't even name, let alone bully, any other students. She did a normal thing that other normal teens do every damn day.
If anyone's behavior should be scrutinized here, it isn't the 14-year-old girl.
This isn't a case about cheerleading. It isn't even really a case about Brandi Levy.
It's a case about adults who should know better.
[ YouTube / Transcript ]
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