Sometimes the Supreme Court protects constitutional rights best when it doesn’t establish what lawyers call a bright-line rule applicable to every possible future situation. That was the case Wednesday when the court ruled in favor of a high school cheerleader who had been disciplined for a vulgar outburst on social media and a California man who was arrested after a police officer entered his garage without a warrant.
In Mahanoy Area School District v. B.L., the justices ruled 8-1 that a Pennsylvania school district violated the free speech rights of Brandi Levy when it suspended her from her school’s junior varsity cheerleading team. The school acted after Levy, disappointed that she hadn’t made the varsity squad, took a photo of herself and a friend raising their middle fingers and posted it on Snapchat. She also used a vulgarity to denounce the school, the cheerleading team and “everything.”
In agreeing with the U.S. 3rd Circuit Court of Appeals that the school violated Levy’s First Amendment rights, the court essentially reaffirmed the position it took in a landmark 1969 case that students at public schools have free speech rights so long as their speech doesn’t create the risk of a “substantial disruption of or material interference with school activities.”
Yet, even as it agreed with the appeals court that Levy’s rights were violated, the court rejected the lower court’s sweeping conclusion that schools couldn’t punish off-campus speech. Justice Stephen Breyer rightly suggested that there were circumstances in which a school might regulate off-campus speech, such as “severe bullying or harassment targeting particular individuals.”
He warned, however, that “courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.” That makes sense. Even in the internet age, conduct by students off campus should generally be the responsibility of parents, not school officials.