The rhetoric around the First Amendment tends to be incredibly misinformed. On one side are the First Amendment absolutists who act like proscribing any speech—even hate speech, or even when the prohibition is made by a private company—is tantamount to an assault on the very concept of freedom and liberty. Usually, these absolutists are screaming at people on the other side who haven’t actually thought through how wide-reaching government restrictions on speech—“Ban Fox News!” “Ban people who lie!”—would lead to an utter dystopia.
Invariably someone shows up to say, “You can’t shout ‘Fire!’ in a crowded theater” (which is not true—you absolutely can shout fire in a crowded theater, so stop quoting this line), and everybody turns off the television less informed than when they started.
The reality of our First Amendment freedoms is altogether more boring, and more nuanced. The government does and must have the authority to regulate speech in all kinds of situations. But that authority is and should be treated with deep skepticism. The government should always be challenged to come up with the least restrictive means to achieve its legitimate ends. But when courts adhere to that principle, when judges issue practical rulings that balance the right to free speech against the government’s legitimate interest in restricting certain kinds of speech, the cases don’t make the news.
That’s why the decision at the end of the Supreme Court’s term in Mahanoy Area School District v. B.L.—better known as the “cheerleader case”—garnered comparatively little attention, even though the underlying controversy was widely publicized. At issue was a Snapchat post from Brandi Levy. As a first-year high school student, Levy failed to make the varsity cheerleading team. Disappointed, she posted a picture of herself with the caption “Fuck school fuck softball fuck cheer fuck everything.”
Students who made the squad saw Levy’s post and showed it to the cheerleading coach. The coach then suspended Levy from the junior varsity team. Levy sued the school. If Tina Fey and Amy Poehler want to write a movie about this starring Zendaya, I will probably watch it.
The case got the media engine churning for another round of speech wars. (Levy is white. I imagine if she were dark-skinned, the white-wing media would have wanted her deported to a country she’s not from.) I, like most people who have been 14, think the school was clearly wrong and over-punished Levy for harmless vulgarity.
But teasing out why the school should be constitutionally prohibited from this kind of punishment is a little tricky. State-run schools have broad authority to regulate speech inside their walls, and while Levy’s Snapchat post clearly occurred off campus, we live in an age of wonders when off-campus speech can instantly spread to the entire school community.
It’s not hard to imagine an off-campus Snapchat post that could require in-school discipline. Most people would probably agree, for instance, that the school could punish Levy if she had joked about doing violence to her coaches, even if the message did not rise to the level of “true threat” required to get law enforcement involved. Other, more subtle forms of intimidation also might warrant punishment from the school. And yet Levy’s particular post was clearly not that, and schools should generally be prohibited from policing students after hours. That is the job of their parents, not the state.
The current federal standard for school restrictions on speech was set in Tinker v. Des Moines, in 1969. The Supreme Court ruled that students do not lose First Amendment protections simply by showing up to school, but they do not enjoy absolute freedom of speech either; schools can punish students whose speech “materially and substantially” interferes with school business. In the years since, Tinker has been extended to things like field trips, but it has never been applied to fully off-campus speech like Levy’s. And it has never contended with the age of social media.
In Mahanoy, the Supreme Court, by a vote of 8-1, ruled to protect Levy—and declined to extend the Tinker standard all the way off campus. In his majority opinion, Justice Stephen Breyer issued a limited and exceedingly pragmatic ruling that made clear that Levy’s conduct is constitutionally protected and sent a signal to schools that their authority to police off-campus speech is much more limited than their authority to police speech within their buildings.
But Breyer’s tolerance for angsty Snapchat posts was not absolute. At the lower level, the Third Circuit Court of Appeals had ruled for Levy but found that public schools have no authority to punish students for off-campus speech disseminated on social media. Breyer disagreed. Instead, he listed a number of instances in which a school may have cause to regulate off-campus speech, including when a student uses social media to bully or harass other students.
Breyer’s approach is the right one. An absolute rule that says schools can never police students on social media would open the door to racial epithets, sexual harassment, and threats of violence. But a Tinker-like rule in which schools get to police everything from dirty words to collegial etiquette would essentially take away the free speech rights of students at all times. The First Amendment requires the courts to balance legitimate state interests against the presumption of freedom, and here Breyer walked that tightrope expertly.
Which is probably why the ruling wasn’t covered with the same fanfare as the initial argument. In the run-up to the case, right-wing stalwarts like David French hoped the court’s decision would “limit the reach of cancel culture.” But the ruling offered nothing to aid conservatives in their endless self-victimization. Nor did it swing the door open to the kind of virulent racism that they are always quick to defend under the guise of free speech. The decision was just a logical ruling that offered a practical way to think about the First Amendment in relation to social media.
So I guess those looking for the next culture war will pivot away from the white cheerleader whose vulgar social media posts were completely defended by most people, including the three liberal justices on the Supreme Court, and go back to crying about persecution from the left because they can’t organize a coup on Twitter. Real First Amendment issues are never quite as sexy as the people who scream about the First Amendment want them to be.