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Cheerleader's profane Snapchat could define free speech off-campus

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Cheerleader's profane Snapchat could define free speech off-campus
Brandi Levy, who was upset that she didn't advance from the junior varsity to the varsity cheerleading squad, was punished by her school after sending a profane Snapchat to 250 friends while she was hanging out at a local convenience store on a Saturday.  Photo by Danna Singer/Provided by the ACLU

April 28 (UPI) -- The U.S. Supreme Court will hear arguments Wednesday on whether a Pennsylvania student's First Amendment rights were violated when school officials punished her for making a profanity-filled social media post on a weekend.

The justices' decision in the case could determine whether public K-12 schools across the nation can discipline students for their off-campus speech that could cause substantial disruptions in the school's operations.

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Brandi Levy, who was upset that she didn't advance from the junior varsity to the varsity cheerleading squad, sent a Snapchat to 250 friends on a Saturday in May 2017 while she was hanging out at a local convenience store. The Snap had a picture of herself and another student raising their middle fingers and a caption that said, "[Expletive] school, [expletive] softball, [expletive] cheer, [expletive] everything."

After Mahanoy Area High School coaches became aware of the Snap, they decided the then-14-year-old freshman had broken team rules requiring her to show respect for others and kicked her off the squad for a year. Levy's parents sued the district on their daughter's behalf, alleging her First Amendment rights were violated.

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A federal judge ruled in favor of Levy and required the school to expunge her discipline record. A three-judge panel of the 3rd U.S. Circuit Court of Appeals affirmed that decision, leading the school district to appeal to the high court.

Off-campus speech

The arguments will center on whether a 1969 Supreme Court opinion, Tinker vs. Des Moines Independent Community School District, which said public schools could regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off-campus.

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The landmark decision was a victory for siblings John Tinker, 15, and Mary Beth Tinker, 13, and Christopher Eckhardt, 16, who were suspended in December 1965 for wearing black armbands at school to protest the Vietnam War. The Supreme Court ruled 7-2 that their First Amendment rights had been violated and that to justify prohibiting a particular expression of opinion, the school must show its action "was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

John Tinker, now general manager of KPIP radio station in Fayette, Mo., and Mary Beth Tinker, a retired registered nurse, are backing Levy. (Eckhardt died in 2012).

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The Tinkers contend the Mahanoy district wants to extend government control over speech "far beyond the schoolhouse gate and even into the home."

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"The expansive authority petitioner advocates would stifle far more than the use of offensive words," the Tinkers say in a friend-of-the-court brief. "It would empower school authorities to ban a wide swath of speech on matters that concern young people, including politics, religion, school administration or anything else that might cause controversy."

The American Civil Liberties Union -- which represents Levy, who is now 18 -- said that thanks to the precedent set by the Tinker case, it has successfully defended the right of students to wear an anti-abortion armband, a T-shirt that is pro-LGBT and shirts critical of political figures.

Mike Hiestand, senior legal counsel for the Student Press Law Center, said more and more students are taking their complaints online. He cited as an example a student in Georgia who took a photo last year on the first day of in-person school that showed students walking down a very crowded hallway and put it on Twitter.

"That had an immediate and significant impact on how they were going to comply with some of the COVID protocols," Hiestand said of school administrators. "It's really important we make sure we don't cut off that opportunity for students to get their voice out there."

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Social media impact

The Mahanoy district argues that one way or another, schools must grapple with off-campus speech when it migrates on campus and a decision in favor of Levy will undercut their ability to protect students from harassment and bullying.

"Students' near ubiquitous and near constant access to social media creates ever more avenues for off-campus communications that can rapidly permeate the school environment," the district says in a brief. "In seconds, from anywhere, students can share any thought with the entire school community-a force multiplier for both the best and worst student impulses. The pervasiveness of social media ensures that more of students' off-campus speech finds its way to the school community instantly, inevitably and sometimes virally."

In Levy's case, the Snapchat message was "blasted" to an audience that included many fellow students, the brief says.

The brief also says federal laws require schools to address harassment on the basis of sex, race, color, national origin and other characteristics, without regard to where that harassment happens. If students lose educational benefits or can't participate in extracurricular programs because of discrimination, schools could be sued, according to the brief.

But the ACLU counters that schools can regulate speech that constitutes harassment and bullying under state and federal law. Expanding the Tinker opinion to cover off-campus speech is unnecessary and would undermine young people's freedom of speech, the organization says in a brief.

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In Levy's situation, her "expression of frustration" was not threatening or harassing and was shared only with her Snapchat friends who had agreed to receive her posts, the brief says. The only evidence of disruption cited by the district was that students approached coaches to express their concerns about the Snap, and some were visibly upset.

"Students understandably have to curtail what they say within the school environment," the ACLU says. "But they should not risk school discipline for what they say on a spring break mission trip with their church youth group, or in a friend's living room at a weekend gathering, merely because the school thinks it might be disruptive."

Stuart Knade, chief legal officer of the Pennsylvania School Boards Association, said schools are not seeking to regulate anyone's private life. The standard of regulating only speech that disrupts the school environment or infringes on the rights of others is fine, but the on-campus and off-campus distinction is not workable, he said.

"The focus should be on impact on the school environment and on other students rather than on where someone is standing when they hit 'send' or hurl a rock," Knade said.

He said schools are bombarded regularly with pleas from parents to do something about online bullying, adding, "We're looking forward to greater clarity in the decision that will come out of this case."

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Split opinions

Numerous friend-of-the-court briefs have been filed in the case including ones from teachers, principals, school boards and anti-bullying organizations that support the district.

The Biden administration also has weighed in, saying in its brief that some narrow categories of student speech can be potentially subject to discipline.

"One example is speech that can create a threatening environment, or that can deprive other students of educational opportunities to which they are entitled, such as bullying and harassment," the brief says. "Another example is speech that would undermine the essential functioning of the educational curriculum (such as posting the answers to an exam) or breach school security (such as instructions for hacking into the school's computer system)."

The Cyberbullying Research Center, along with eight other groups, is asking for a ruling that protects the ability of school officials "to address peer harassment in the digital age when much of this behavior occurs off school grounds or online, and the distinction between on-campus and off-campus has become meaningless."

A group of 32 academics and researchers who focus on methods of preventing bullying have sided with Levy. They say zero-tolerance punishment is ineffective and want a ruling that will allow schools to address off-campus bullying without imposing punishments that restrict students from speaking freely.

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Some religious liberty groups also are backing Levy. One of them, The Becket Fund for Religious Liberty, says giving public-school administrators the authority to sanction speech made in public, in a house of worship or at home interferes with the right of parents to direct the religious upbringing of their children.

Levy's post was juvenile and crude "but the Constitution protects the speech of both Billy Graham and Howard Stern," the organization also says in a brief.

"This is a feature, not a bug," the brief says. "The founders did not trust the government -- or even federal courts -- to distinguish between worthless and valuable speech. To protect one, courts must allow both."

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