Justice Department urges Supreme Court to rule against cheerleader in free speech case

Lawyers for the Biden administration on Wednesday urged the Supreme Court to rule against free-speech rights for a foul-mouthed cheerleader who was kicked off the team for using the F-word on Snapchat.

The Justice Department’s acting solicitor general warned the justices that ruling against the Pennsylvania school district that punished the cheerleader could limit schools’ ability to fight off-campus harassment and bullying.

“The First Amendment does not categorically prohibit public schools from disciplining students for speech that occurs off campus,” the Justice Department argued in court papers.

The free speech battle began when cheerleader Brandi Levy, identified as B.L. in court papers, posted a photo of herself flipping the bird, which appeared on Snapchat for 24 hours accompanied by the caption, “F—- cheer.”

“F—- school f—- softball f—- cheer f—- everything,” read the Pennsylvania teen, in her rage over not making the varsity cheer squad.

It is not unusual for the Justice Department to participate in oral arguments in high-profile cases. This legal battle is the first major school-speech case to reach the steps of the high court in decades.

Still, the position taken by the Democratic administration puts it at odds with the left-allied American Civil Liberties Union, which is representing the Levy family.

Sara Rose, an attorney with the ACLU of Pennsylvania, said the organization disagrees with the position that rules restricting students’ speech while on campus should apply to students everywhere.

“Young people need to have someplace in their lives where they have full free speech rights to blow off steam or express their views on politics, religion, or other social issues without worrying their schools will be monitoring everything they say, 24/7. We’re urging the court to protect young people’s constitutional right to express themselves,” she said.

The crux of the federal government’s case is that off-campus speech should be regulated if it is threatening, targets a specific individual or group, or targets school programs.

Angry over not making the varsity squad heading into her sophomore year, Miss Levy blasted out the uncensored Snapchat post while shopping on the weekend with a friend.

She neither wore a school uniform in the image nor mentioned the school’s name.

When Mahanoy Area School District officials became aware of the post, they ruled it violated school policy requiring cheerleaders to avoid “foul language and inappropriate gestures.”

The high school then removed Miss Levy from the cheer squad, prompting her parents to sue. They argued that the school violated their daughter’s First Amendment rights.

“As a parent, I know that sometimes kids do foolish things. But when my daughter is on her own time and out of school, it’s my role as a parent to address her behavior. In this situation, I did that and felt that the school overstepped its bounds,” father Larry Levy said.

“We’re in this case because we don’t want to see schools have the power to discipline students for what they do on their own time. Leave that authority to parents,” he said.

They first filed suit in 2017 and won in the lower courts and their daughter was reinstated on the squad.

Miss Levy has since graduated from high school but her Snapchat post could still create a legal standard for student speech in the digital age.

Mahanoy Area School District argued in its court filing that students should be punished for speech that substantially disrupts the school environment — whether it’s spoken on or off campus.

“Schools’ authority to restrict student speech tracks schools’ interests in preventing significant on-campus harms, not the location where student speech occurs,” lawyers for the district said in its filing. “The Internet makes swift action especially imperative; students can reach the whole school immediately, exacerbating disruptions.”

Five other federal appellate courts considered similar student-speech cases and ruled that a school may discipline off-campus speech if it has a nexus to the classroom.