The Supreme Court has once again cleared the subterranean bar that most left-of-center Americans have for it, this time by ruling 8-1 on Wednesday that schools don’t have a right to punish students for non-disruptive social media speech that occurs away from school.
The case, Mahanoy Area School District v. B. L., concerned the case of Brandi Levy, who, as a 14-year-old high school freshman, expressed her irritation over not making the varsity cheerleading squad by taking out her phone in a local convenience store, opening Snapchat, and declaring “Fuck school. Fuck softball. Fuck cheer. Fuck everything.” As one does, as a 14-year-old in the digital age.
The “fuck everything” Snap wasn’t composed on school grounds or using school equipment. It was not sent from an official school-affiliated account, or during school hours. Nevertheless, Brandi was kicked off the JV cheerleading squad after the post made its way to school officials. It’s not publicly known who alerted the authorities when they saw that a rude teen was doing swears online, but we can safely assume that whoever did it was an enormous dweeb and an exhausting narc. From there, Brandi’s family sued, life went on, Brandi made the cheerleading squad the next year, and her case made its way to the Supreme Court. By now, so much time has passed since “fuck everything” that Brandi Levy just completed her freshman year of college and has probably moved on to TikTok.
The case was news catnip—angry cheerleader, social media, vulgarity, high school… it’s a headline writer’s dream!—but the questions at the center of the case were much more serious. Did schools have a right to discipline students for off-campus speech? What does “off campus” even mean during an era of virtual schooling? If it was right and proper to discipline Brandi Levy for writing “fuck cheer” on a disappearing messaging app, then what other speech did schools have the right to regulate?
“Being rattled, even performatively, by the word “fuck” seems awfully old fashioned.”
The poetic perfection of “Fuck school. Fuck softball. Fuck cheer. Fuck everything” aside, this case made free speech advocates nervous because it was a 21st-century test of whether the First Amendment protects student speech.
It made me nervous, too. Do you know the feeling you get when you’re in line at an automated airport kiosk behind two very old people who are having trouble understanding the touch screen instructions, and nobody is helping them, but the man half of the couple keeps hitting buttons anyway, getting nowhere, until both of them give up and walk away, and so you walk up to the kiosk thinking it’s your turn, only to find out that the elderly couple actually kind of broke the touch screen and just left it like that? That’s how I feel every time the Supreme Court takes up a case that deals with technology or changing social mores.
We are a country run disproportionately by older people who do not use or understand the latest ways other people use technology to speak, and those older people are in charge of making and interpreting rules around technology and speech. It’s chilling.
“It’s not publicly known who alerted the authorities when they saw that a rude teen was doing swears online, but we can safely assume that whoever did it was an enormous dweeb and an exhausting narc.
Even the judges who “get it” don’t really seem to “get it.” Justice Breyer, one of the Court’s most staunchly liberal justices, characterized Levy’s language as “unattractive” during oral arguments, and in his majority opinion wrote, “It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein.” Really? Tempting for whom? Breyer added that protecting Levy’s “superfluous” language was akin to protecting the necessary. Again: what? It’s not like Brandi Levy is the first American to write “fuck” somewhere, or that “fuck” is some kind of novel invention. Quentin Tarantino has made millions of dollars for hundreds of people off the word “fuck.” Where would the music industry be without “fuck”? “Fuck” has been around for awhile, and its use is about as pedestrian as a mudflap festooned with the profile of a sexy woman, or visible bra straps. Being rattled, even performatively, by the word “fuck” seems awfully old fashioned.
But, back to the very low bar the Court cleared: a win for Brandi Levy means that schools can’t punish students for digital saltiness, although schools are still allowed to punish students for disruptive behavior like bullying or incitement. A loss for Brandi Levy would have been devastating for student speech, and would have ushered in yet another era of the loss of individual liberty to religions and corporations. Public school budgets are being slashed around the country. Republicans have made it a public priority to promote funneling money from public schools to religious schools and charter schools, which are often run by corporations. Allowing religious and corporate-affiliated school administrators to punish students for using naughty words during their free time would have been another win for corporate and religious “speech” at the expense of the rest of us.
So Mahanoy v. B. L. isn’t a “win” so much as it is a non-loss. There’s no telling whether the Court would have ruled differently if Mahanoy Area School District were a religious-run institution. The recent ruling on Fulton v. Philadelphia, where the court ruled that the city of Philadelphia discriminated against Catholic Social Services by no longer contracting with them after the religious-affiliated organization would not screen LGBTQ couples for placement of foster children, has shown once again that much more sympathetic to cries of “religious rights” than they are to things like “human rights.” The Court still hasn’t handed down rulings on a few remaining cases which deal, among other things, with voting rights and the right of rich people to anonymously contribute dark money to nonprofit organizations. And the Court recently agreed to hear a direct challenge to Roe v. Wade, which, given the makeup of the court and the nature of the case, is not long for this world.
If things go wrong, at least we can vent on Snapchat.