SCOTUS hears off campus free speech case

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The Supreme Court’s first big student free-speech case of the internet era appeared to divide the justices on Wednesday about whether to issue a sweeping ruling bringing First Amendment law for schools into the social media age or settle for a much more modest decision.

The case, framed as a test of school officials’ power to regulate student speech on the web, stems from a profane but mundane lament on Snapchat by a Pennsylvania ninth-grader, Brandi Levy, about being denied a spot on the varsity cheerleading squad.

“F--- school, f----softball, f--- cheer, f---everything,” Levy wrote in her 2017 message, which prompted a one-year suspension from the cheerleading program.
The arguments over Levy’s case seemed to scramble some of the court’s usual ideological lines on speech issues, as liberal justices who often favor robust free-speech rights questioned whether limiting the authority of school officials to speech physically taking place on their campuses or at official events could undercut efforts to rein in bullying and harassment.

The chief proponent on the court for a broad decision grappling with student free-speech rights appeared to be Justice Samuel Alito, who as an appeals court judge two decades ago issued an influential ruling warning that some school anti-harassment rules unconstitutionally intrude on free expression.

A lawyer for the Pennsylvania school district, Lisa Blatt, told the justices that officials needed to have authority to police online speech directed at the school just as they do with on-campus speech.

But Alito said deciding what statements are about a school amid the torrent of daily social-media posts about friends, sports, politics and social issues is no easy task.

“What troubles me is what you’ve just proposed is a very nebulous line,” said the conservative justice, who was appointed by President George W. Bush. “I’m quite concerned about the effects of this on freedom of speech. … I have no idea what it means to ‘target the school.’”

Justice Stephen Breyer said the case was ill-suited to making far-reaching generalizations about free speech, and he suggested it was unwise to use it as a vehicle to do so.

Breyer did scoff at the idea that schools should be trying to punish bad language uttered outside of school.

“She used swear words, unattractive swear words, off-campus,” Breyer declared. “Mmmmh, my goodness, if swearing off campus [is forbidden] every school in the country will be doing nothing but punishing” that.

Justice Brett Kavanaugh seconded Breyer’s view that the case was a poor one to try to set a bright-line rule for student speech.

Still, when it came to the facts of Levy’s case and her punishment, Kavanaugh was, hands-down, the most anguished member of the court. The justice, who is an ardent sports fan and has served for years as coach of a middle-school girls basketball team, seemed outraged at the decision to kick Levy out of cheerleading for a year for venting about the kind of team-roster decision that can indeed seem earth-shattering to a high school kid.

Alito seemed perturbed by his colleagues’ reluctance to embrace the case as a chance to opine broadly on students’ free speech rights. He suggested disdainfully that if the court wanted to dispose of the case “without deciding those tough issues,” it should just dismiss the case without issuing any ruling.

One surprising aspect of Wednesday’s arguments was the absence of discussion about how the ongoing pandemic has further blurred the lines about what is considered on- or off-campus conduct.

A decision in the case is expected by the time the justices leave town for their summer recess in late June or early July.

“She used swear words, unattractive swear words, off-campus,” Breyer declared. “Mmmmh, my goodness, if swearing off campus [is forbidden] every school in the country will be doing nothing but punishing” that.