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Former High School Cheerleader's Online F-Bombs Are Deemed Protected Speech

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At the Supreme Court today, a victory for student speech. By an 8-to-1 vote, the court declared that a cheerleader's online cursing about her school is protected speech under the First Amendment. But as NPR legal affairs correspondent Nina Totenberg reports, the court drew a line that would permit schools to punish some off-campus speech.

NINA TOTENBERG, BYLINE: The case was brought by Brandi Levy, then a 14-year-old junior varsity cheerleader who failed to win a promotion to the varsity cheer team, as she explained in an April interview with NPR.

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BRANDI LEVY: I was really upset and frustrated at everything.

TOTENBERG: So she posted on Snapchat a photo of herself and her friend flipping the bird to the camera, along with a message to her 200-plus friends. It said - and here I'm cleaning it up for the radio - F the school, F cheer, F everything. She was suspended from the cheer team, but a federal appeals court ruled that the school had no right at all to discipline students for any off-campus speech. The school board in Mahanoy, Pa., appealed, and today, the Supreme Court ruled for Brandi, while at the same time declaring that schools may in fact punish some speech, especially speech that is harassing, bullying, cheating or otherwise disruptive.

Writing for the court majority, Justice Stephen Breyer noted that the court, since 1969, has made clear that students do not shed their First Amendment free speech rights at the schoolhouse gate, and here, Brandi Levy's Snapchat posts were not disruptive to the classroom, did not target any individual or even name the school. Her comments, he said, were made on her personal cellphone to her friends and, while vulgar, were not legally obscene. Breyer went on to establish some general guardrails for school districts to follow in the future. Parents, not schools, he said, generally have the responsibility for disciplining students off campus. Indeed, were the schools to have the power to discipline off-campus speech, generally, it would mean that everything a student said, 24 hours a day, would be subject to punishment by school authorities. Lastly, he said, schools have a special responsibility to protect unpopular student expression. After all, said Breyer, schools are in essence, quote, "nurseries for democracy."

David Cole, legal director for the ACLU, which represented Brandi Levy, was elated.

DAVID COLE: I think it's a huge victory for student speech rights. I think it means that when students leave school every day, they don't have to carry the schoolhouse on their backs with respect to their free speech rights. The court made a very clear message that outside of things like bullying, threats, harassment, students can engage in controversial speech, in vulgar speech; they can express their emotions, and they can't be punished for it.

TOTENBERG: But Michael Levin, counsel for the Mahanoy School Board, also claimed victory, contending that schools could easily operate under these rules.

MICHAEL LEVIN: We're absolutely pleased with the decision. The Supreme Court ruled clearly that school districts have the right to regulate off-campus speech in a wide variety of situations.

TOTENBERG: The superintendent of schools in Mahanoy, Dr. Joie Green, however, was not so sure, noting that in this case, Brandi had signed a contract to follow the team rules, and she didn't.

JOIE GREEN: All the school did was support the coach's rules. And so that's where I have a concern, that - where is the line drawn?

TOTENBERG: Yale law professor Justin Driver, author of a book about these issues, called today's decision incredibly significant.

JUSTIN DRIVER: It's the first time in more than 50 years that a public school student has prevailed in a free speech case at the Supreme Court, so it seems to me that public school students should be dancing in the streets. At the same time, Justice Breyer's opinion for the court left many significant questions unanswered, and this suggests that the court is going to have another off-campus student speech case somewhere down the line.

TOTENBERG: Gregory Garre, who represents the National School Boards Association, saw the decision as hugely important, too, and a win for both sides - a win for Brandi Levy on the facts of her particular case, but a clear rejection of the notion that off-campus speech is outside the bounds of school discipline.

GREGORY GARRE: The court took a commonsense approach here that just because speech originates off campus, particularly in the special context of social media, doesn't mean that it can't substantially disrupt the campus and the classroom and school activities as well.

TOTENBERG: The lone dissenter in today's ruling was Justice Clarence Thomas, who long has taken the position that students don't have any free speech rights on or off campus.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.