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Things Got Weird During Supreme Court Oral Arguments Over a Cheerleader’s F-Bombs on Snapchat

Elura NanosApr 28th, 2021, 3:55 pm
 

It was a strange day at the telephonic Supreme Court on Wednesday as justices heard oral arguments in a case over a high school cheerleader’s First Amendment right to use the F-word in a Snapchat story. The justices’ questions and comments about the case pondered the consequences of misgendering transgender students, questioned the street cred earned by using profanity, and even mused about the passion of student athletes.

To put it mildly, it was a lot.

First, a refresher on the case at bar.

Fourteen-year-old Brandi Levy was frustrated with a decision made by her cheerleading coach. On a Saturday while out with friends, Levy acted on that frustration by posting a picture of herself and a friend in a Snapchat story. The picture showed both girls with middle fingers extended and the caption “Fuck school fuck softball fuck cheer fuck everything.” A second post said, “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else?”

When the post came to the school’s attention, Levy was cut from the team. Levy’s parents appealed the school’s decision on her behalf, but the athletic director, school principal, district superintendent, and school board all sided with the Mahanoy Area School District in Pennsylvania. Levy’s parents then filed a First Amendment lawsuit, and they won both in district court and at the Third Circuit. Levy had previously only been identified as B.L., but she has appeared on the news and given her name.

The Supreme Court now faces a complex question: how does it protect the free speech rights of kids while not entirely stripping schools of all power to regulate disruptive behavior like harassment and bullying?

In 1969, Tinker v. Des Moines Independent Community School District set out the rule that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That case, however, was about students wearing black armbands to class to protest the Vietnam War. It preceded both the internet and modern school anti-bullying policies. Levi’s case is a long way from that legal home. The Supreme Court must now consider whether the Tinker rule applies to Snapchat stories and F-bombs directed at in-school activities but uttered far outside the proverbial “schoolhouse gate.”

Litigants in the case before the Court have presented arguments that go far beyond whether Brandi Levy should win her case. All the attorneys (Lisa S. Blatt on behalf of the school district, Deputy Solicitor General Malcolm L. Stewart as amicus, and David D. Cole for the Levy family) urged the justices to adopt a general rule to be applied to cases of student speech.

The Third Circuit ruled in favor of Levy, finding that her Snapchat story constituted “off-campus” speech that clearly fell outside the regulatory authority of the school. That court’s approach, however, is at odds with the legal analysis used by the Second, Fourth, and Eighth Circuits in similar cases. At oral arguments, several justices raised overt concerns about the complexity and the wisdom of creating any bright-line rule.

Telephonic arguments in the case lasted more than an hour over the usual allotment for oral arguments as the justices seemed to consider the case from a multitude of angles.

Right out of the gate, it became clear that the case handed the justices the chance to show some true colors. Eighty-two-year-old Justice Stephen Breyer provided a quick reality check, reminding the school district that teenagers can be counted on to use bad words. Breyer shared his view of the facts of the case:

“The record shows what this young woman did was she used swear words — unattractive swear words — off-campus. Did that cause a material and substantial disruption? I don’t see much evidence it did. If swearing off-campus did, my goodness, every school in the country would be doing nothing but punishing.”

Legal experts immediately picked up on the accuracy of Breyer’s take.

Justice Samuel Alito wasn’t nearly as concerned with what Levy herself did as what a ruling might mean for the politically incorrect; the minute it was his turn at questioning, the justice wasted no time turning the conversation to gender wars and cancel culture. Raising a hypothetical far afield from Levy’s case, Alito asked Blatt whether a school could discipline a student for refusing to acknowledge a transgender student’s gender identity.

Alito, who flat-out refused to use the word “transgender” in his query, awkwardly phrased his hypothetical:

“A student believes that someone who is biologically male is a male and there is a student who is biologically male but identifies as a woman and has adopted a female name, but the student who has the objection refers to this person by the person’s prior male name and uses male pronouns. Can the school do something about that?”

The internet noticed . . .

 . . . and wasn’t particularly pleased with the justices’ seeming interest in prioritizing the free speech rights of hypothetically transphobic students.

Justice Sonia Sotomayor chimed in with some contextual comments about the young people who could be affected by the Court’s ruling.

“I’m told by my law clerks,” explained the justice, “that among a large percentage of the population, how much you curse is a badge of honor. That would surprise many parents. However, if it is true, where do we draw the line with respect to targeting of school?”

“Kids basically talk to their classmates,” she continued. “Most of their conversation is about school. Most of their exchanges have to do with their perceptions of the authoritarian nature of their teachers and others.”

Sotomayor concluded by asking the school district whether the difference in this particular case isn’t simply that the coach took personal offense to Levy’s post.

Justice Elena Kagan spent her 61st birthday today throwing out one of her rapid-fire lists of hypotheticals of recent fame. Pressing Solicitor General Stewart on the boundaries of school authority to regulate speech, Kagan fired a series of hypos ranging from a student sharing daily answers to geometry homework via email to a student tweeting, “this school really stinks.” To each, Stewart responded that the hypothetical would constitute regulable “school speech.”

Justice Kagan’s hypotheticals have become a crowd favorite during the pandemic as the Court has conducted live-streamed telephonic oral arguments.

Justice Brett Kavanaugh joined the conversation with an oration on the general value of youth sports and the “competitive fire” of student athletes.

Kavanaugh’s comments played as a fervent defense of Levy’s profanity-laced post. The justice explained that Levy had simply been “blowing off steam” — as kid-athletes are wont to do.

Court-watchers, noting that Justice Clarence Thomas has long been critical of the Tinker standard, paid close attention to the justice’s comments.

Thomas did not disappoint. The formerly taciturn justice raised the question we had to know was coming: where exactly is the internet?

“I don’t know how you locate the conduct . . . when you have social media,” Thomas said.

The justice then seemed to apply a rule of contract acceptance known as the “mailbox rule.” (Under that rule, a contract or agreement is legally deemed to have been “accepted” when it is dropped in the mail, not when it is received by the offering party. Acceptance binds the parties.)

“Does speech occur when it’s written or posted or when it’s read or downloaded?”

Nestled in Thomas’ skepticism was another now-that-we’re-hearing-telephonic-arguments-we-can’t-unhear-this moment, when he again mispronounced Justice Sotomayor’s name.

Justice Neil Gorsuch asked a question about school regulations in the age of the internet. This lead to an insanely out-of-touch response by Stewart, who suggested that teenagers always have the option of just not using social media.

“The internet is an extra option,” explained Stewart. “Students in high school still have the option of doing what people did in my day — that is, express their views to their friends and classmates at parties, social gatherings off-campus . . . there is no requirement that everything a student thinks and wants to communicate has to be communicated to the broadest possible audience.”

When David Cole began oral arguments on behalf of Levy, he characterized the case as one of profound importance. A ruling against the teenager, he said, “would transform a limited exception to a 24/7 rule that would upend First Amendment principles and would have students carry the schoolhouse on their backs.”  Cole continued by arguing that expanded rights for schools to regulate speech would interfere directly with parental rights. He concluded his opening remarks with a fervent defense of the importance of youth speech.

“B.L.’s message may seem trivial,” he argued, “but for young people, the ability to voice things to friends without censorship may be the most important freedom of all.”

The school district, though, ended with a few zingers of its own. Blatt characterized her opponent’s argument as one that Americans “act like Soviets and the North Koreans.” In the process, she called the case “some sort of twilight zone.”

Blatt concluded by throwing down a blunt gauntlet to the justices:  if the Court refuses to create a clear rule, school districts will be prevented from implementing anti-bullying rules.

“Your choice is this,” Blatt demanded of the Court. “You could choose to either tighten Tinker, or you can say, well, we’re going to say Tinker is out of control on-campus, but we will leave open season on schools and complete chaos as to what their test allows.”

“You’re much better off cleaning this doctrine up,” she continued in an unusually frank warning to the Court. “You can keep denying cert, but I guarantee the courts are going to freak out when Tinker has been the law off-campus for 20 years.”

[image via Erin Schaff / POOL /AFP via Getty Images]

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Elura Nanos - Columnist & Trial Analyst, Law & Crime; CEO Lawyer Up

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos

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