The U.S. Supreme Court wrestled openly on Wednesday with how to balance the free speech rights of American teenagers on social media with the needs of schools to maintain order and discipline in classrooms and on playing fields.
"I'm frightened to death of writing a standard," Justice Stephen Breyer said in a nod to the case's significant stakes for schools, parents and students.
The justices heard oral arguments in an appeal by a Pennsylvania school district seeking to reverse a sweeping lower court decision that said what students say off campus after hours is strictly off-limits for punishment by school officials.
They were wary of that stark standard even as most were also uneasy with the idea of schools policing student speech unfettered, after hours.
"If schools are going to have any authority... outside of school," Justice Samuel Alito said, "there has to be a clear rule. That’s what I’m looking for."
The case involves a former teenage cheerleader in the Mahanoy Area School District who was given a year suspension from the squad in 2017 after a coach learned of an expletive-laden Snapchat message posted to teammates online over a weekend.
Brandi Levy, then a 14-year-old freshman, told ABC News she was venting frustration to friends about not making the cut to cheer for the school’s varsity squad. "I was upset. I was angry," she said in an interview. "I said, 'F school, F cheer, F softball, F everything.'"
Levy sued the school and won twice in lower federal courts. She was reinstated to the team and graduated last spring.
"If they would have just taken her aside and said, 'Watch; be careful.' But the action they took, I think reached above and beyond where they should be," said Larry Levy, Brandi's father, who brought the case with help from the ACLU.
The school contends Levy’s social media post violated an agreed upon team code of conduct and that punishment was reasonable and justified. Attorneys for the district argue that schools need to be able to respond to student speech that is disruptive, even if it takes place off of school property.
"Off-campus speech on social media can be disruptive," attorney Lisa Blatt told the justices. "The speaker’s location is irrelevant."
In the landmark 1969 decision Tinker v Des Moines, the Supreme Court said that students don’t give up their First Amendment rights at the schoolhouse gate but that conduct that "materially and substantially interferes" with education or the rights of other students can be regulated by schools.
The court has not addressed the matter of school-related speech made off campus, after hours on social media. Over nearly two hours of arguments, the justices openly wrestled with how and where to draw the line.
"Can you punish the student for cursing at home at her parents? Can you punish her for cursing on the way to school?" Justice Sonia Sotomayor pondered aloud. "If you can’t punish for that, you can [punish] for her doing it on the internet?" she said skeptically.
Justice Clarence Thomas raised one of the challenges of the digital age: "Aren’t we at a point that if it’s on social media, where you posted it on social media doesn’t really matter?" he said.
Justice Stephen Breyer wondered openly whether court precedent authorized any school punishment for the type of posting made by Levy. "It says, ‘School, you cannot punish this unless there’s substantial disruption or infringement on others. You can’t, unless," he said. "Here pretty clearly it didn’t satisfy."
Justice Brett Kavanaugh was openly sympathetic to Levy, saying outright that he was "bothered" as a "judge and coach and parent, too," by the punishment.
"She’s competitive. She cares. She blew off steam like other kids do," Kavanaugh said. "It didn’t seem the punishment was tailored to the offense…. A year suspension from the team just seems excessive to me."
Justices Elena Kagan and Amy Coney Barrett, however, raised the legitimate stakes for schools in potential scenarios of cheating on academic assignments and student threats of violence that might take place electronically, off campus.
Kagan suggested that school authority might not need to be limited geographically under court precedent but instead "as what’s necessary for a school’s learning environment."
Echoing that view, Justice Samuel Alito said he’s "concerned" about cyberbullying. "Is there anything a school could do about that?" he said.
ACLU attorney David Cole, representing Brandi Levy, said communities across the country already have anti-bullying and anti-harassment legislation that is constitutional and enforceable.
Cole urged the Court to make clear that schools simply cannot police students’ social media on the basis of a potential "disruption," even if they can legally impose clear codes of student conduct and impose penalties accordingly.
"If you’re at a convenience store on the weekend, Tinker does not apply. End of story," Cole argued. "Here they set forth conditions [for team membership.] She agreed, and she did not violate any conditions."
The justices are expected to hand down a decision in the case by the end of June 2021.