A high school cheerleader’s free speech and the First Amendment

Penn’s Sigal Ben-Porath explains the significance of a case before the U.S. Supreme Court

five students sitting on steps looking at phones and computers
The U.S. Supreme Court is considering a case with implications for free speech for students. 

A high school cheerleader’s profanity-laced rant declaring her disappointment for not making the varsity squad is now the foundation of a highly anticipated U.S. Supreme Court decision on free speech. 

On a spring Saturday four years ago, Brandi Levy, then 14, posted a Snapchat social media story to about 250 followers displaying a photo of herself, middle finger raised, with a profanity-filled caption. Snapchat posts disappear in 24 hours, but one of her followers took a screenshot and shared it with her parent, a school coach, who then took it to the administration of Pennsylvania’s Mahanoy Area High School. The school suspended Levy from the junior varsity cheerleading squad for a year, citing unsportsmanlike conduct and a form she signed during tryouts which included language about behaving in an appropriate manner. Levy’s parents filed a lawsuit citing her First Amendment rights to protected speech, and Pennsylvania’s Third Circuit Court found for Levy. The school reinstated her to the cheerleading squad. 

But then the school district appealed, and the case was taken up by the nation’s highest court, with implications for the First Amendment’s protection of free speech, in particular how it applies to speech off campus and in social media posts by public school students. 

Sigal Ben-Porath, professor in the University of Pennsylvania Graduate School of Education and affiliated member at the Institute for Law and Philosophy, joined an amicus brief to the court in support of Levy. Ben-Porath is an expert in the philosophy of education and has written extensively on free speech, including the 2017 book “Free Speech on Campus.”

Penn Today spoke with Ben-Porath about the amicus brief, her take on the implications of the case, and her predictions on the Supreme Court decision.

professor stands with arms folded in hallway
Sigal Ben-Porath is a professor in the University of Pennsylvania Graduate School of Education and affiliated member at the Institute for Law and Philosophy. She joined an amicus brief to the U. S. Supreme Court in support of the high school cheerleader in a First Amendment case. 

What are the important elements of this case?

One issue is whether minors have the same speech rights as adults, particularly when they are considered as students. The court is very undecided on this, and despite a majority of strong advocates of free expression this court has continued the ongoing erosion of the speech rights of minors. An even more important part of this case, which is one of the most pressing issues in our democracy today, is the regulation of speech on social media platforms, including Twitter, Snapchat, Instagram, and Facebook. The other question is the authority of schools to regulate speech on campus versus off campus, which includes social media, which was very evident in the oral arguments. With virtual and online communication, whether written or spoken, there are really no clear boundaries. Does it matter that she was off campus when she posted that photo? It’s unclear that it matters, but what is very clear is that it is not feasible to expect schools to regulate every single thing that every student or teacher says on every platform. But this is actually what the school in this case seemed to see as their responsibility to regulate, at least when it comes to posts that are about the school—a very broad category.

What is your argument in the amicus brief to the Supreme Court? 

I think the court should side with protecting Brandi’s speech rights; this is important for the speech rights of minors and students. As we noted in the brief, there is a reasonable expectation of parents that they can make decisions about their children’s social media use. And it’s not the responsibility of the school to decide what language children might use off campus, or how they might use social media platforms. I think it’s actually better for the school not to be made responsible for student’s social media use. My position puts me outside the camp of most education professionals and educational organizations who came out in support of the school district, claiming that the punishment was reasonable and within the mandate of the school. I agree that we need to let schools make decisions of this type, but the issue of student speech here still requires our attention. 

The regulation of speech on social media platforms still needs to be resolved. But we cannot solve these huge issues of social media platform regulation on the back of this girl and this case. 

What are your views on what she said in her post? 

Imagine if she had said on her post ‘I resent the coach’s decision to put me on junior varsity.’ Would that be okay? If so, then is the issue the use of a four-letter word? Because if this is the issue, then it really is ridiculous. She could say in the school cafeteria during the school day and to her friends around the table, ‘I’m so mad that I didn’t make varsity and I hate the coach,’ and nothing would have come of this, right? This is a very normal response from an athlete, from a young person who didn’t accomplish what they were hoping, expressing themselves in anger, or maybe even with profane language. In my view, this should not be punishable by the school.

What is the distinction between what the cheerleader said and speech that is not permissible?

Profane or critical expression that is the focus in this case is different from threats, from bullying, from disrupting the learning environment, all of which are impermissible. There are already clear decisions in the courts related to the effort to maintain an accessible learning environment. If you are experiencing a hostile environment because of extreme and clear and directed bullying, including in person or on social media, which is not going to allow you to safely and confidently attend school or college, your public learning institution has a responsibility to address that issue. They have to make sure that you can attend school and learn and know that you are not going to be attacked verbally or otherwise. There are some similar issues with cheating, as well as with disruption to learning; the definition of ‘disruption’ is expanding, and the school district is asking here that the Snapchat message be included in it. But what Brandi said was not threatening, not targeted, not mean to her peers. It really is a marginal mistake she made here, if at all. So, if this is punishable, just imagine the universe of punishable expressions for young people: political speech, sexual speech, religious speech, even when just hanging out with their friends over the weekend. I don’t think it makes sense to not let people, and definitely young people, to just express themselves freely, openly, sometimes objectionably, when they are expressing their views or feelings.

Why would the school and teachers’ unions support punishing her for what she said? 

I do think they have some good arguments, including that the school should be able to make decisions about children’s club participation based on their professional judgment. I do think that education professionals need to maintain professional autonomy and respect for the decisions that they make, including giving them some space to make mistakes, as I think they did here. I accept some of the arguments on the other side that say that generally schools have to be able to operate, to educate, and to sanction students according to their professional judgment. In my view, however, the arguments on the other side—protecting the free expression of young people, especially—is stronger than these arguments. 

After listening to the oral arguments before the Supreme Court justices in April, what do you expect?

Of course, I am not a lawyer or law professor, so my assessment here is just based on what I heard and read. I think that whichever side wins, it’s going to be a very narrow decision that would not make a real change in the doctrine or the precedent. Justice Breyer even noted that he cannot ‘write a treatise on the First Amendment’ based on this case. So, I don’t think that the justices are going to use this case to clarify any of the broad issues. I don’t think the court is going to use this case to resolve issues around the speech rights of minors. This is not going to be the case that will help us to resolve regulation of speech on social media platforms. The case is too small, too idiosyncratic. I think the justices are going to find consensus that would allow them to resolve the case without addressing these grand issues. 

Would any decision apply to college campuses? 

clear distinctions between minors and adults. And in this case to particularly because it has to do with school-based activities and the use of profanity, it seems to be uniquely relevant to issue affecting schools and minors. These are two elements that are just not going to fit into a campus-based environment.

Why is it important that young people be able to express themselves freely?

Young people need to be able to develop their voices, to develop their views, to be able to contribute their perspectives where they can try out and stumble sometimes, not be afraid to make mistakes, whether it’s in regard to political views, social views, their own identities and experiences. I think overregulating the speech of young people is detrimental to democracy, not only because it stands in contradiction to the First Amendment but also because this is the next generation of citizens. If we clamp down, if we let schools start observing every word that young people are saying through the lens of whether it’s appropriate for school, we will have to regulate away so much political speech, religious speech, just interpersonal, including unpleasant, exchanges. I’m hoping that children and young people’s speech will be protected in this case, including on social media and outside of school so that we continue to have open exchanges for the betterment our democracy. Admittedly, that is a lot to demand from these few, not very important, not very meaningful words posted on Snapchat by a 14-year-old.