Estimated read time: 8-9 minutes
SALT LAKE CITY — Cheerleading loomed large in Isabelle Johnston's youth and college years.
She cheered all four years of high school, two in college and on competition teams. Her mom is a cheer coach and her husband was a cheerleader, too.
Whether she was cheering for Salt Lake's West High, on a competition team or the two years she cheered for Boise State University, Johnston was required to sign agreements that spelled out the schools' or clubs' expectations such as maintaining a certain grade point average, eschewing alcohol and prohibitions on posting images on social media that could reflect poorly on the team or organization, she said.
Johnston said she didn't think too much about the agreements she signed because "I understood that I tried out for a team and if I made the team there would be certain expectations I had to uphold."
Most of her teammates followed the rules, although one of her college teammates got a warning from a coach over her social media posts.
"She had been photographed at parties with alcohol, which is a no-no for college cheer. The coach was like, 'You have one more chance. If it happens again, you're off the team.' I felt like it was always pretty fair, you know, multiple warnings at least before the end-all," Johnston said.
Because of her long history with cheerleading, Johnston closely followed the case of the so-called cussing cheerleader. She was intrigued what the Supreme Court decision would mean in terms of students' off-campus speech, the role of social media and moving forward, any resulting changes to the agreements schools require cheerleaders, athletes and other school leaders to enter as a condition of participating in extracurricular activities.
"It matters to cheerleaders because in the future it shapes their freedom of speech. I do still follow cheerleading pretty closely when it comes to what's happening in the cheer world, so I found it interesting to see what was happening," she said.
The landmark case of Brandi Levy v. Mahanoy Area School District, which was decided earlier this year by the Supreme Court, marked the first time in more than 50 years that the high court ruled in favor of students' free speech rights.
When she didn't make the varsity cheer squad at her Pennsylvania high school in the spring of 2017, then 14-year-old Levy went on Snapchat to vent her frustration, both that she would not be moving up from the junior varsity squad as a rising sophomore but also that an incoming freshman made the varsity team.
One snap was a photograph of Levy and a friend, their middle fingers raised, with the caption "(Expletive) school (Expletive) softball. (Expletive) cheer. (Expletive) everything."
The second snap said, "Love how me and (another student) get told we need a year of jv before we make varsity but that's (sic) doesn't matter to anyone else?"
Both were sent to about 250 Snapchat friends, who included the school's cheerleaders.
Snaps disappear about 24 hours after they are posted, but one recipient took a screenshot of the first snap and showed it to her mother, a cheerleading coach.
Upon learning about Levy's posts, school officials suspended her from the junior varsity cheerleading squad for the upcoming year. After her parents' attempts to reverse the punishment at the district level were unsuccessful, they sought relief in federal court, arguing that punishing Levy for her speech violated the First Amendment.
A federal district court agreed, as did the 3rd Circuit Court of Appeals.
The case was appealed to the Supreme Court, which ruled the Mahanoy Area School District had violated Levy's First Amendment rights when it suspended her from the junior varsity cheerleading squad for a vulgar social media message sent while she was not on school grounds.
In an 8-1 decision, the court found that in some instances, schools may remain free to regulate speech that takes place away from the physical school building such in case of threats, harassment or bullying.
During oral arguments before the Supreme Court, the justices considered the extent to which schools should have discretion to discipline students for what they say off campus and whether the speech rises to a material and substantial disruption of the school environment.
"If using those words off campus were the issue, my goodness, every school in the country would be doing nothing but punishing," said Justice Stephen G. Breyer.
The off-campus, on-campus debate
The ruling comes as social media platforms continue to evolve and after a year when students nationwide participated in some form of remote learning, which somewhat blurred the definition of the school setting.
Jeff Van Hulten, director of public affairs for the Utah State Board of Education, said the Levy case "confirms for us how Tinker applies in a new way."
In Tinker v. Des Moines Independent Community School District, the Supreme Court addressed an Iowa school district's ban on allowing students to wear black armbands to protest America's involvement in the Vietnam War.
The justices concluded that students and teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," ruling "our Constitution does not permit officials of the state to deny their (the students') form of expression."
However, the 1969 ruling empowered schools to punish disruptive speech, at least when it occurred on campus.
Now, the question of off-campus speech has become more complex.
"When we look at the ever-changing school boundaries, which now can exist entirely in cyberspace, there is this question: It's a lot harder to imagine on- and off-campus speech, and what, therefore, does the school have the ability to regulate?
"But when I look at the practical implications, as the court lays it out, they are really kind of limiting their ruling saying you can't come after a student for speech unless it's substantially disruptive or it threatens or harms an individual or their rights, which to me really kind of made this nice chunk, carve-out for bullying," said Van Hulten.
The state board has not taken a position on the decision, he said.
RonNell Andersen Jones, professor of law at the University of Utah S.J. Quinney College of Law and First Amendment scholar, said the high court refused to adopt a hard geographic line between at-school and away-from-school speech.
"They refused to say as a flat rule that those special characteristics that give schools additional license to regulate speech will always disappear when the school regulates speech that takes place off campus," said Jones, speaking at a recent University of Utah Hinckley Institute of Politics forum.
"It's accepting that in this new media landscape, schools may sometimes have a substantial interest in regulating some student communication, even when it's not happening at school," specifically naming severe bullying, harassment that targets particular people, and threats that are aimed at teachers or students, she said.
Jones said the ruling says students' off-campus speech will generally be the responsibility of their parents, and it won't be the role of the court to intervene and punish that speech.
"There's an explicit recognition by the court in this opinion that if schools could regulate all off-campus speech that in any way implicates the school community, this would cover virtually everything that any modern student says or does outside the school. The student would be under the thumb of the school 24/7. The justices make it clear that they think this isn't an acceptable First Amendment dynamic," she said.
The Levy case has a limited fact set — the snaps were sent outside school hours, from a convenience store, and neither the school nor school personnel were named or identifiable — so it should not be viewed as a free-for-all in terms of student speech, Van Hulten said.
"I think a lot of people are reading the headlines and assuming this case does a whole lot more than it does," he said.
Why the Levy ruling opens doors for other legal challenges
Less clear are the practical implications for schools' contracts or constitutions that regulate the speech and conduct of cheerleaders, athletes or other students participating in extracurricular activities, Jones said.
"The court doesn't speak squarely to it, and what that will mean is that there will almost certainly be additional litigation that will happen down the line. The case that was just decided will provide the guiding precedent in the area, and then in subsequent cases, cases that are not exactly on all fours with this cheerleader's case, but instead have slightly different facts, that might be slightly more persuasive for the courts to find in favor of school districts in those areas, those might come out differently," Jones said.
Despite the vulgar nature of Levy's snaps, the ruling notes, "the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus, because America's public schools are the nurseries of democracy."
Levy, who is now in college, said in an ACLU press release when the court handed down its ruling in June, that her school "went too far, and I'm glad that the Supreme Court agrees."
She continued, "I was frustrated, I was 14 years old, and I expressed my frustration the way teenagers do today. Young people need to have the ability to express themselves without worrying about being punished when they get to school. I never could have imagined that one simple snap would turn into a Supreme Court case, but I'm proud that my family and I advocated for the rights of millions of public school students."
Johnston said she believes that Levy "was completely within her rights to express frustration and anger.
"I'm sure she worked really hard to make her varsity team and, you know, when she made the JV team, I'm sure she was frustrated. I think it's fair to express on your personal social media that you feel frustrated."