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Cheerleader's F-Bombs Are Protected By The 1st Amendment, Supreme Court Rules

RACHEL MARTIN, HOST:

When Brandi Levy failed to make her school's varsity cheerleading team in 2017, she did what a lot of teenagers do. Levy, who was 14 years old at the time, logged on to social media. She posted a photo of herself with a friend flipping the middle finger with a message aimed at her school riddled with the F-word. She described this earlier in a television interview.

(SOUNDBITE OF ARCHIVED RECORDING)

BRANDI LEVY: I said it was F school, F cheer, F softball, F everything.

MARTIN: The school punished Levy, suspending her from the JV cheerleading squad for the rest of the year. So she and her parents went to court and won. The Supreme Court ruled yesterday that her online swearing off campus is protected under the First Amendment. The American Civil Liberties Union represented her in the case. Vic Walczak is the legal director for the ACLU of Pennsylvania, and he joins us this morning. Thanks for being with us.

VIC WALCZAK: Good morning.

MARTIN: How much of this decision by the court hinged on the fact that the comments that this teenager made were made off campus?

WALCZAK: That's right. The law has been developing about schools' ability to regulate what kids say inside the school or during school activities for half a century. That's pretty well-known. But this is the first time that the court has the opportunity to decide how much authority schools have to regulate what kids say outside of school that may be about what's going on in school, or it may somehow impact the school. And they drew a clear distinction and said that young people who are outside of school have much greater free speech rights when they are off campus than on campus.

MARTIN: But I mean - I don't have to tell you - we live in this time where there's so much concern about online bullying and harassing - harassment that can even lead to to violent threats. And all this is happening in - on social media among kids, and many of them go to the same school. So what kind of precedent does this decision set for schools' ability to rein that kind of harassment in?

WALCZAK: Right. So, I mean, you've identified the big problems that caused countless pages of ink to be filed with the Supreme Court, not just by the parties, but by many interested groups across the country. The thing is that Brandi's speech was none of those. It was not harassing, threatening or involving any kind of cheating. It was an expression of frustration. And the court said that that is completely protected by the First Amendment. The school had no cause to punish her.

What the court also said, though, is that there are categories of speech, like threats, violence, harassment, bullying, where schools will have greater interest in regulating off-campus speech. The court said they are not going to specify what all those categories are in this case or the circumstances in which schools can regulate. But they did say that there are important interests that distinguish schools' rights off campus. Like, you got to worry about the fact that, hey, parents direct and control the kids when you're outside of school. If you regulate speech in school and out of school, that means the kids can't talk about that anywhere.

And schools have a really important interest in teaching students about the importance of free speech. And part of that lesson involves modeling that you got to sometimes allow speech that may be considered unpopular. So the court - this was the court's first word on schools' ability to regulate speech off campus. But it's certainly not going to be the last word. But the first word set a pretty high bar for schools to act.

MARTIN: I just want to read a little bit when you talk about the model - right? - being able to model what democracy looks like through free speech. Justice Breyer wrote in his opinion. After all, he added, quote, "America's public schools are the nurseries of democracy." So that gives a view into some of what he was thinking about in authoring this.

I mean, it's interesting. Both sides, to some degree - I mean, Brandi Levy obviously claiming victory here and her parents. But the school district also viewed yesterday's ruling not as an outright victory, but it seemed to leave some space for future suits. I mean, there is some ambiguity here that's going to be - that's going to come up again, right?

WALCZAK: Yeah. Yes, I think that's right. You know, I think the school's claims of victory are a little bit of spin. They have a great communications director. But it is true that the court really just kind of set some markers about how the law should unfold going forward. It provides useful guidance to lower courts, which haven't always respected student free speech rights. And this really feels like the court has put its thumb on the scales on the side of student free speech, which isn't something we've always seen.

MARTIN: Vic Walczak - he is the legal director for the ACLU of Pennsylvania. The ACLU in that state represented Brandi Levy in this case that went all the way to the Supreme Court.

We appreciate your time and perspective on this. Thank you so much.

WALCZAK: Thanks so much for having me. Transcript provided by NPR, Copyright NPR.