The Daily - A Cheerleader, a Snapchat Post and the Supreme Court

Episode Date: May 25, 2021

When Brandi Levy was 14, she posted an expletive-filled video to Snapchat, expressing her dismay at not making the varsity cheerleading squad. It got her suspended from cheerleading entirely for a year.Can a public school deal with off-campus speech in this way without infringing the First Amendment? The Supreme Court will decide.Guest: Adam Liptak, a reporter covering the United States Supreme Court for The New York Times.Sign up here to get The Daily in your inbox each morning. And for an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Background reading: In a lively Supreme Court argument, the justices struggled to determine how the First Amendment applies to public schools’ power to punish students for social media posts and other off-campus speech.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, it's being called the most important free speech case involving students to reach the Supreme Court in 50 years. Kevin Roos speaks to our colleague, Adam Liptak, about the unusual sequence of events behind the case and how the justices may rule in the coming weeks. It's Tuesday, May 25th.

Adam, there's a case this year at the Supreme Court that seems super interesting to me because it deals with kind of the intersection of the offline normal world and the online world. Yeah, it's a great case. All right, so let's get into it. Where does this story begin? So a 14-year-old student, a public school student named Brandy Levy, was having a very bad day on a Saturday a few years ago. She just learned that she wouldn't make the varsity cheerleading team. She'd been on JV. She had high hopes for making varsity. And she and her friend went to the Coco Hut, which is a teen hangout convenience store in Mahonoi City, Pennsylvania.

And there they posted a Snapchat message. They raised their middle fingers and using a common swear word starting with the letter F, they said F school, F softball, F cheer, and F everything. F-softball, F-cheer, and F-everything. And they send this to 250 friends in the expectation that this will disappear after 24 hours. But another student takes a screenshot of it. The screenshot makes its way to one of the coaches. And young Brandy is suspended from the cheerleading team entirely for a year.

And why do they say they are suspending her? They say, in essence, that this showed bad sportsmanship, that it undermined team camaraderie, and that they said it would provoke chaos on the team. So they seem to think that this would do grave damage to the cheerleading team. Grave damage seems like a very formal term, and so I have to imagine that there is a lawsuit coming. Yeah, so Randy's parents are not happy about this at all.

And with the aid of the ACLU, they sue and they win. They get her reinstated onto the team. It goes up to a federal appeals court. And the federal appeals court issues a quite broad ruling. And this is a contested area where lots of school administrators and courts are quite confused about what the right way to think about the internet and off-campus speech and the power of public schools to discipline students for what they say off-campus. This appeals court takes a quite broad attitude and says if it's off-campus, it's beyond the jurisdiction of the school.

And therefore, Brandy Levy wins her case up until the appeals court. I see. So the basis of this lawsuit, the case that Brandy and her parents and her lawyers are making is this is a public school. I have First Amendment rights to express myself. First Amendment rights to express myself. And by posting this Snapchat, I have not interfered with anything related to school. In fact, this was off campus at the Cocoa Hut, not on campus, and therefore I can't be punished for it. That's right. So, I mean, one place to start is we're talking about public schools only. Public schools are the government. The government as a general matter

can't discriminate based on the content of speech. They can't punish you for saying things they disagree with. Got it. So she wins her first case. She gets reinstated onto the team. And then what happens next? Well, next, the school district thinks this is a case it should take to the U.S. Supreme Court. It tells the Supreme Court that this new rule, at least in the part of the country covered by the Federal Appeals Court in Philadelphia, the Third Circuit, would cause havoc.

And if you withdraw the ability of schools to discipline students for off-campus speech, you're going to do damage to things like cyberbullying or even something as simple as cheating on tests. And the school says, please take this case, Supreme Court, because this issue of what schools can do about off-campus speech is tremendously important, really hard to figure out, speech is tremendously important, really hard to figure out, and particularly the internet era, where your physical location doesn't tell you about the impact on school affairs, we need some guidance from the Supreme Court.

Got it. And so as you're thinking about this case, as it works its way through the legal system, what other cases are you looking at and reading? So the key case, Kevin, is from 1969, from the Vietnam War era. Number 21, John F. Tinker and Mary Beth Tinker, minors, et cetera, now. Tishner versus Des Moines Independent Community School District, now. Mr. Johnson. Chief Justice, may I please the court? A different world, of course, where the difference between being in school and out of school was quite distinct. Conduct of the students essentially was this. At Christmas time in 1965, they decided that they would wear small black armbands to express certain views which they had in regard to the war in Vietnam.

And the question in that case was, could students wear black armbands to protest the Vietnam War? The principals of the secondary schools, the high schools, and perhaps the junior high schools in the city of Des Moines, the public school system, enacted a policy, which was not written but which was agreed upon among themselves that if a student came to school wearing the armband, he would be asked to remove it. And at the time, it wasn't clear that students had any free speech rights, certainly not

on campus. I would also say to the court, speaking very frankly, that my own experience, and I'm sure the court's experience, is that this is not an isolated problem. That the correct balance between the interest of the school in maintaining discipline and decorum and the rights of students who, because I believe of the improvement in American education, are increasingly moved to have opinions and to want to express opinions, that this kind of situation rises and will continue to arise. And the court, in a decision that was really pro-free speech,

said the black armbands were acceptable, that students don't shed their First Amendment rights at the schoolhouse gate, and that so long as the form of speech or protest wasn't likely to give rise to disruption of school activities, it was protected by the First Amendment. So that was a big pro-speech case that recognized students' First Amendment rights, even on campus. Got it. So this earlier ruling affirms that students do have First Amendment rights,

but says that schools can punish them for speech that's disruptive. Would that apply to speech that happens off campus too, like someone sending a Snapchat on a Saturday morning? Well, that's the question the Supreme Court is being asked. Is there a difference between on-campus speech and off-campus speech? Or do you take the same idea from Tinker, which is essentially what the school board is arguing, and say, so long as it's disruptive, we don't care where it was said, we don't care when it was said, we don't care how it was said.

If it has a disruptive effect back on campus, we should be able to address it. How have school districts and courts dealt with these kind of social media free speech issues in the period since the Tinker Kiss, in the period, you know, in, say, the last 10 or 20 years? They're really all over the map. And I think they tend to look at the particular speech and how ugly it is. I mean, if it's cyberbullying, if it's racist harassment, if it's innate of cheating, the courts are likely to say schools can't address that. But it's very hard to draw a general theory out of the particular answers, and some of the answers

don't seem particularly consistent. So this would be an opportunity for the Supreme Court to lay down some clean lines. Adam, a lot of the cases that you've written about are sort of arcane or esoteric. They involve situations that don't often happen to people. But this case seems like something a lot of people can relate to. It's very timely. And given how relevant this issue is, I can see why the court would be interested in taking it up. So you're right. Most of what I write about, even though it can be quite consequential in its details, is eye-glazingly dull. This case is an exception to that general rule. Almost everybody, you just sketch out the facts of the case and about what happened at the Cocoa Hut in 2017

and whether discipline was appropriate or not for a 14-year-old girl. Everybody has an opinion. Everybody is deeply engaged about it. Everybody cares about kids, about social media, about the First Amendment. They have strong views. And I think that's not only the case with ordinary citizens, but also with the justices of the Supreme Court. We'll be right back.

We'll be right back. Adam, how have the oral arguments unfolded in this case? Well, the arguments these days, of course, are on the phone. We will hear argument first this morning in case 2255, Mahanoy Area School District versus BL. And they last forever. They go about two hours. And the justices really tried to tease out the difficult issues in the case, but I'm not sure how far they got. So the lawyer for the school district. Thank you, Mr. Chief Justice, and may it please the court.

Says that time and geography don't matter in the infinite age. It makes absolutely no sense whatsoever to say that the same speech is somehow within the school's regulation. If it's one foot on campus or one foot off campus or at the Starbucks or at the CVS or in your car or on the school bus, the Internet is ubiquitous. It's and it's just it doesn't have a geography. ubiquitous. It's just, it doesn't have a geography. That what matters is the speech. And if the speech is targeted at the school and concerns a topic about the school, then the school can act. But the fact she said that at the Cocoa Hut shouldn't matter into the analysis. And of course, that picks up Brandy's speech, or arguably does. The ACLU lawyer. Thank you, Mr. Chief Justice, and may it please the court. Says no. Says that it needs to be under school jurisdiction, school supervision,

school sanction. So schools can prohibit pro-drug messages at school, but not elsewhere. They can ban profanity at school, but not at home. So, too, they can punish disruptive speech at school, but not at a convenience store on the weekend. And otherwise, ordinary First Amendment principles apply. Expanding Tinker would transform a limited exception into a 24-7 rule that would upend the First Amendment's bedrock principle and would require students to effectively carry the schoolhouse on their backs in terms of speech rights everywhere they go. Now, he goes on to say that's not to say that people have the right to say anything anywhere, but just as adults have substantial First Amendment rights outside of school, so should students. And so that's the basic

split. The school district lawyer says it's got to be aimed at the school, but it can be aimed from anywhere. The ACLU lawyer, Brandy's lawyer, says it has to be under the school's supervision or the ordinary First Amendment principles apply. And what kind of questions are the justices asking? And what kind of questions are the justices asking? So one set of questions is a kind of eye-rolling, I can't believe that this got out of hand. You're punishing her here because she went on the internet and used a curse word related to what?

To her unhappiness with the school and cheering, right? That it's not surprising that a frustrated 14-year-old might swear. I mean, she used swear words, you know, unattractive swear words off campus. Did that cause a material and substantial disruption? And so Justice Breyer says, you know, so it's an ugly swear word. So in essence, he says this is a federal case. And he's swearing off campus. Did. I mean, my goodness, every school in the country would be doing nothing but punishing.

And then I want to focus on the facts of this case a bit and my reaction to it. Justice Brett Kavanaugh, who is himself a basketball coach of the girls basketball teams, goes on this long, I don't know what to call it exactly because it has almost no legal significance. My reaction when I read this, she's competitive, she cares, she blew off steam like millions of other kids have when they're disciplined. But he goes on about how he just can't believe that this young woman, who's a competitor, who's got heart, who cares, and was blowing off steam, should be subject to this kind of, in his view, disproportionate punishment of an entire year's suspension. So maybe what bothers me when I read all this is that it didn't seem like the punishment was tailored to the offense. And that may all be correct, but it doesn't play any role in the legal analysis.

And it was interesting to see him musing about that at length. Right. And Adam, in addition to ruminating about the nature of high school sports, what were the substantive things that the justices said? So the justices generally seem dissatisfied with the appeal court's approach. It might be that student speech that occurs outside of school is sometimes going to cause fundamental problems, disruption of the school's learning environment. That this idea that this is an on-off switch, on campus gets one set of rules, off campus gets a different set of rules, didn't seem to appeal to most of them.

And I guess then the question is why we shouldn't acknowledge that and allow a school to deal with it. They also seem to draw a distinction, several of them. Why doesn't it make a difference that the speech here was addressed in the context of an extracurricular activity? Between discipline by the school itself and being excluded from an extracurricular program like cheerleading. So I think it can make a difference, Justice Gorsuch. It doesn't make a difference. And there was a sense, it may not have been presented to the court directly, but there was a sense that that's different, that the cheerleading team might be allowed to have different rules, at least if they were announced ahead of time and Brandy had agreed to them. And her own lawyer seemed to say that would have been possible.

For example, I think a school could say, if you're going to play on our team, you can't personally demean other players. And if they set that out in advance and the student agrees to it, and then the student does it, they can punish the student. If they don't set that out in advance. So there was an effort by the justices to kind of put extracurriculars into a different category. But overall, as the argument went on, the theme that kept coming up... There is a huge gap between the broad and very important free speech issues that have been briefed and discussed this morning and the particular incident involved in this case. ...was that this is too complicated.

If the court, having decided to take this case, wants to decide it without addressing those broad issues, of course the court could dismiss the case. We've got to find a way out of this. 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 and a lot of the hypotheticals that have been raised. We're not going to be writing a First

Amendment treatise in this area. And maybe it wasn't such a great idea to take this case in the first place. Huh. And why would that be? Because the court doesn't agree to hear cases to resolve particular disputes. I mean, it's not the job of the Supreme Court to be the school board in Mahanoy City, Pennsylvania. It's the job of the Supreme Court to take cases in which it can announce general principles, legal principles applicable to all kinds of cases. And it just seemed that they weren't going to find a way to do that in this case because there were just too many complications.

And given that they don't seem to feel good about having agreed to hear this case, how do you think these justices are likely to rule? I think there are two major pieces to the case. are likely to rule? I think there are two major pieces to the case. One that is fairly easy is they could simply reverse the lower court and say, we reject the idea that there's one set of rules on campus always and one set of rules off campus always, and it's not that simple. Okay, so that's a ruling, but it doesn't get you very far. Then the next question in the case is, well, what's left then? Well, what's left from the Tinker case is, does the speech in question cause substantial disruption? And it's possible

the Supreme Court rules on that. If it does rule on that, I suppose it will say that this Snapchat message was not likely to cause substantial disruption. But it would be more typical for the court not to rule on that question itself, but rather to send it back down to the lower court and say, why don't you guys, in the first instance, decide that question? So if this case does get sent back to the lower court, as you think it might, it seems unlikely that we'll get any clarity on this bigger free speech issue anytime soon. That's the way it looked to me because it touches on this extremely active debate people are having all over the country about censorship and cancel culture and online speech and whether the consequences for things that people do and say online should be the same or different from the things they say in schools and workplaces. And it seems to me like the Supreme Court justices understand, maybe correctly, that they can't just rule narrowly on this one case because there are so

many other situations like this one where people say things on social media that offend or disturb other people. And the question in all of these cases kind of seems to me to be, is the internet just an extension of things like schools and workplaces, or is it different and we need a new different set of rules and laws that take those differences into account? account. Yeah, so this is a version, Kevin, of the kinds of things you cover all the time. But the difference is, while so much of our focus is on how tech companies can regulate the speech that goes on on their platforms, here the court has an opportunity to ask the more fundamental First Amendment question of what can the government in the form of a public school do. of what can the government in the form of a public school do. And it seems that they, like so many of us, are coming to the conclusion that these issues are so novel,

so complicated, so difficult, so hard, that there may be no ready answer and that we're going to have to move in little incremental steps. Don't we rely on the Supreme Court to figure out exactly these kind of really hard, really complicated cases? That's their job. That's their usual job. But there may be a kind of judicial Hippocratic oath, too, which is, you know, first do no harm. Right. So if they're not going to rule this time, when do you think we might actually get a solution or an answer on this question about the boundaries of online versus offline speech is it just about finding like a clear-cut case to

rule on yeah i suppose you need something where the lines are clean enough that you can say one side or the other wins and here's why, rather than something where you have cross currents and different issues. But this is not the first time that the Supreme Court has confronted free speech in the internet era. And it wouldn't be the first time either in earlier cases too. They've taken very modest steps. And they're nervous because they themselves would be the first to admit that new technology is not at the core of their expertise. Adam, it kind of sounds like in this instance, maybe we're just not equipped to rule on things this new, things this sort of complicated and technical. Maybe we're just not equipped to decide whether Snapchat counts as an extension of school. Yeah, I think that's part of it.

But another part of it is that these are authentically difficult questions as a matter of First Amendment doctrine, even if you're the most tech-savvy person in the world. Figuring out what the line between the school's jurisdiction is would be hard for anyone, would be hard for someone who's deeply immersed in technology. And while on the one hand, school administrators should have some substantial amount of power to make sure the schools can function properly, on the other hand, the First Amendment does guarantee, and the Supreme Court has said it guarantees for students in particular, substantial rights to stay what they like.

So striking the right balance here is difficult for anybody. Adam, thank you so much. Thank you so much. Thank you, Kevin. We'll be right back. Here's what else you need to know today. Thank you. critic of its president, Alexander Lukashenko. The EU called on all European airlines to stop flying over Belarus and begin banning airlines based in Belarus from flying over EU countries or landing at EU airports. But Lukashenko seemed unrepentant. On Monday, he signed new laws that further cracked down on dissent. And... New York City public schools, one million kids will be back in their classroom in September,

all in person, no remote. Wow. New York City said that it would no longer offer remote learning this fall, a major step toward fully reopening the nation's largest public school system amid the pandemic. It's just amazing to see the forward motion right now, the recovery that's happening in New York City. But you can't have a full recovery without full strength schools, everyone back sitting in those classrooms, kids learning again. So that's what we're going to have in September. The city's mayor, Bill de Blasio, said that the decision reflected the city's progress in vaccinating residents and its low rate of infection.

But it's unclear just how many parents, teachers, and staff will feel that it's safe enough to return to the classroom. Today's episode was produced by Luke Vanderplug, Stella Tan, and Rob Zipko, with help from Rachel Quester, Robert Jimison, and M.J. Davis-Lynn. It was edited by Dave Shaw and engineered by Chris Wood. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.