Instead, an adolescent outburst and the adult reaction to it has arrived at the Supreme Court, where it could determine how the First Amendment’s protection of free speech applies to the off-campus activities of the nation’s 50 million public school students.
“Much of the speech from students is off-campus and increasingly online,” Driver said. “When I talk to school administrators, they consistently tell me that off-campus speech bedevils them, and the lower courts desperately need some guidance in this area.”
That shouldn’t be a surprise, as cellphones have become an extension of almost every teenager’s hand and social media a preferred mode of communication. And for the past year, many students have not gone near a school campus, with their “speech” happening in their homes during Zoom classes.
The First Amendment does not “force schools to ignore student speech that upends the campus environment simply because that speech originated off campus,” says a brief filed by Mahanoy Area School District, which upheld the school’s decision to kick Levy off the cheer squad.
“Wherever student speech originates, schools should be able to treat students alike when their speech is directed at the school and imposes the same disruptive harms on the school environment.”
The school board’s brief, as well as Driver’s book title, refers to the foundational Supreme Court case regarding student speech, Tinker v. Des Moines Independent Community School District. The 1969 decision famously held that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
But it also held that schools have broader authority over students than the state generally does when restricting speech and that authorities can discipline students for on-campus speech that causes or is likely to cause “material and substantial” disruption of school functions. (The court ruled 7 to 2 for Mary Beth Tinker because, it said, the black armband she wore to protest the Vietnam War was not disruptive.)
In the half-century since, the Supreme Court’s decisions have been few and lean toward school administrators. The justices have upheld school disciplinary action regarding lewd speech by students, a student newspaper that operated at the direction of school officials and a nonsensical sign with a seemingly pro-marijuana message — “Bong Hits 4 Jesus” — held by a student at a school activity.
Levy’s case is different. It concerns speech far beyond the schoolhouse gate, made online and on a weekend, unconnected to a school event.
“This may seem like a very narrow case about a minor temper tantrum on Snapchat, but it is about speech anywhere and everywhere, by students of all ages,” said Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida.
Because it is somewhat rare for the justices to take a student speech case, “they are writing broadly the standards that will apply for two or three generations,” LoMonte said. “And they are writing the standards for all forms of speech across all media.”
None of that was on Levy’s mind, of course, when she and a friend were at the Cocoa Hut, a 24-hour convenience store in Mahanoy City, a town in Pennsylvania’s coal country about 40 miles southwest of Wilkes-Barre. After a year on the Golden Bears junior varsity squad, she had hoped to move up to varsity. Worse, in her view, a rising freshman had gotten a spot ahead of her.
“I was just feeling really frustrated and upset at everything that day,” said Levy, now 18 and a college student studying accounting.
Besides the snap in which she and her friend posed with middle fingers extended, she sent another: “Love how me and [another student, whom Levy…