by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Brandi Levy was at a convenience store called Cocoa Hut when she posted a Snapchat that would land her in the Supreme Court.
The rising sophomore wanted to broadcast her anger after learning she would spend a second year on the JV cheer squad at her Scranton-area school. … Her coaches removed her from the team after they saw a screenshot of the photo. That punitive step set off a major First Amendment battle over school power to police student speech off campus, which the justices will consider later this month.
School administrators determined to enforce new ideas about racism, sexuality, and privilege have similarly taken to punishing students for statements made beyond the schoolhouse door. Those administrators argue that certain harmful views warrant punishment no matter where or how they are expressed. The High Court’s decision in Levy’s case could put a major check on those efforts.
“Our culture currently is experiencing a dangerous trend of punishing individuals for speech on social media with the intent and effect of stifling ideas,” lawyers for the libertarian Cato Institute wrote in legal papers supporting Levy. “Empowering school administrators to punish students for anytime-anyplace speech creates an incentive for students, parents, and staff to engage in informant-style behavior that is anathema to American values.”
The Supreme Court said in a 1969 case called Tinker v. Des Moines School District that schools can regulate student speech that undermines discipline or interferes with operations. …
… Citing Tinker, most lower courts have held that administrators can punish students for off-campus speech. …
… But in Levy’s case the Third U.S. Circuit Court of Appeals went the other way and said Tinker simply doesn’t apply off campus. Conceived as a shallow First Amendment carveout, the court warned that Tinker has become “a vast font of regulatory authority,” since students are in touch about school on social media at all hours and in all places.