Transcript
f**k school, f**k softball, f**k cheer. f**k everything. On May 28th 2017. Brandi levy age 14 wrote those words in a Snapchat message visible to 250 friends, me and my friend posted a Snapchat on my story. It said F school f cheer, f softball of everything. I was really upset at a lot of things. At the end of the 2016, 2017, school year, Brandi a studio atma Hanoi Area High school in MMA Hanoi pennsylvania tried out for a position on the school softball team and for a place on the varsity cheerleading squad. She didn't get her preferred spot on the softball team and the school put her on the junior varsity cheerleading team. I was a 14 year old kid expressing my feelings, expressing how I felt and that's how that's how kids do it. Like they do it over social media outside of school hours and off school property. She had vented her anger on Snapchat. The words were a caption to a photo of her and a friend, both raising a middle finger to the camera, Snapchat has 293 million daily users who send out about four billion messages called snaps a day. It's been around for a while as of this recording and it's still pretty popular among teens and preteens. According to a study posted in august 2022 from the Pew Research Center. About 59% of teenagers surveyed said they used Snapchat, which was third to instagram and Tiktok Snapchat automatically a racist content after a short time period ranging from one second to 24 hours. This helps users exchange messages, photos and videos without creating a record that can be viewed by others For Brandi Levy. However, it didn't work out that way. Another student saw her snap and used a second cell phone to take a photo of it. It spread around to the schools cheerleaders, some of whom complained to coaches. They rescinded her place on the junior varsity cheerleading squad. Her parents then filed a lawsuit arguing the school had violated their daughter's constitutional right to freedom of speech. After the A. C. L. U. Backed the case. It went all the way to the United States Supreme Court in 2021. At the heart of the case was the question when can a school discipline a student for online behavior. It was a pertinent question in the age of remote learning, cyberbullying and an entire school social order that moves on to platforms like Snapchat After the final bell rings instead of vanishing after 24 hours. Brandi Levy's four f**k rant is now a cornerstone of case law that affects each of the over 50 million students in American public schools. This is Jillian and we're going to get into it today on civil Part one Fighting for her rights at the start of the year. I always have the best intentions. I'm going to eat better. I'm going to go to the gym more, going to be a better parent and friend. 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Brandi, who had been cheering since fifth grade and was about to become a sophomore, stewed over the fact that she and a friend whose name is redacted in court documents were placed on the junior team. Love how me and blank get told we need a year of JV before we make varsity. But that doesn't matter to anyone else. She wrote next to an emoji of an upside down smiley face. She didn't name the soon to be freshman who had leapfrogged over them. I put no one's name in it. Nothing towards the school. Exactly. The photo of the snaps circulated among students, particularly the cheerleaders and reached cheerleading coach. Nicole lucetta through lucetta as daughter who was also a cheerleader. On June 1, 2017, Lucetta summoned brandy out of homeroom and told her she was kicked off the squad. She could try out again in one year. She pulled out photos of the snaps and told her they were disrespectful to the coaches. Brandy's parents. Larry and Betty lou didn't think that was fair. Larry wrote a letter addressed to the school superintendent, the principal and the athletic director to protest Brandi's dismissal, claiming that punishing a student for off campus speech was a violation of the First Amendment. He met with a few school officials, including the two cheerleading coaches. They brought a copy of the school's cheerleading rules showing one that prohibits posting negative information about cheering online and they refused to overturn their decision. Larry attended the next school board meeting and asked the board to intervene. The superintendent dr Joy Green later informed Larry of the board's decision to maintain Brandy's suspension. She informed him over Facebook messenger. Larry often protested that the school had usurped his role as a parent to discipline Brandy for online behavior. Years later, he told the local newspaper the Republican and Harold that she hadn't faced any punishment at home for her snap. I was more concerned as to what led to the Snapchat. Like I was more concerned of the emotional situation that Brandy was having at the time. More so over the use of a profane work. Brandi's parents went to the A. C. L. U. Of pennsylvania. The organization hoped for a quick resolution. We expected after we sent a letter, Brandy would be on her merry way and we would turn to other things. Legal director Y told Walsh told the local paper the Republican in Harold with the suspension still in place. That september Larry and Betty lou with a state A. C. L. U. S. Backing filed a lawsuit against the school in the U. S. District court for the middle district of pennsylvania because she was a minor at the time. Brandy was referred to as B. L. In the suit. The A. C. L. U. Of pennsylvania had one cases like this before. In the early days of social media about a decade earlier, the organization provided legal help in two separate cases of public school students who created profanity laced parody profiles of their principles on the platform. Myspace In the first, a middle school student in a small rural district made a parody account copying the head shot of her principal from the school's website. Among his interests were detention being a tight a*s my golden pen f**king in my office hitting on students and their parents and baseball. The student got a 10 day suspension. In the second case, 17 year old high school senior Justin L. Of Hermitage, Pennsylvania also created a Myspace profile using the official photo of his principal because he's apparently a large man. Justin filled out the profile with references to steroids and repetitions of the word big Though he was months away from graduation. The school ordered Justin to finish high school using a state program called Alternative Education for disruptive youth administrators also barred him from graduation ceremonies. They later downgraded the punishment to a 10 day suspension. Both students created the profiles on home computers because they weren't in school, the school had no right to discipline them. The pennsylvania A. C. L. U. Argued. The districts argued that because the speech involved school personnel and made obvious references to the school, the school's authority extended to the fake accounts. The state A. C. L. U. Consolidated the two cases into one and put it before the third circuit Court of Appeals, which ruled in the students favor in 2011. The opinion of the court read quote, neither the Supreme Court nor this court has ever allowed schools to punish students for off campus speech that is not school sponsored or at a school sponsored event and that caused no substantial disruption at school. The school districts appealed to the Supreme Court which declined to hear the case. The court would actually be silent on the issue of online student speech until Brandi Levy's case, one of the first results of the lawsuit, Brandi's parents filed was at the district court issued an order to the school to reinstate Brandy to the junior varsity squad. While the case proceeded. This was probably awkward initially, but she cheered for the rest of high school and one year after the cheer snap, she earned a place on the varsity squad on March 21st 2019. The court ruled that the school had violated Brandy's First Amendment rights. The school district appealed to the third U. S. Circuit Court of Appeals In oral arguments. Michael Levin, Attorney for the district emphasized that the snap pertained to the school, even if not sent on school grounds. This post was definitely related to school context. He said it was sent to other students and referred directly to school. The court was unmoved and upheld the decision of the lower court on June 30, 2020. The snap was rude, crude and juvenile wrote Judge Cheryl ann krause for the court but the school couldn't punish her for it as arms of the state public schools have an interest in teaching civility by example, persuasion and encouragement she wrote but they may not leverage the coercive power with which they have been entrusted to do so. Otherwise we give school administrators the power to quash student expression deemed crude or offensive which far too easily metastasizes into the power to censor valuable speech and legitimate criticism. The school district appealed again and on January 11, 2021 the United States Supreme Court agreed to hear the case. Brandy would not be personally affected by the outcome. In June of 2020 she graduated from high school in a ceremony moved online because of the COVID-19 pandemic. She is now enrolled at Bloomsburg University of Pennsylvania where she studies accounting on april 28th 2021 she watched the Supreme Court oral arguments on her laptop, stationed at home in ma hanoi because of the pandemic now that I'm older and I look back at it. I don't regret doing it because now I'm here fighting for my rights and I feel like everyone should be able to do what I did. So I don't regret it one bit according to the E. P. A. Indoor air on average can be 2 to 5 times more polluted than outdoor air and sometimes it can be up to 100 times more polluted than outdoor air. That's right. 100 times more polluted. And you can find that statistic right on the E. P. A. Website. So what's the solution? We're happy to introduce an air purifier that has captured the attention of established media outlets like CNN Money abc and more Air Doctor filters out dangerous contaminants and allergens. So your lungs don't have to. 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They do have some First Amendment rights, but there are times when a public school which essentially acts as a government, can limit those rights with a heavier hand than could most governmental authorities. If that speech disrupts the goings on of the school. Most of these standards are traced back to Tinker V. Des Moines Independent Community school district. In 1965 5, students wore black armbands to various public schools in Des Moines Iowa to protest the Vietnam war. Four of them were members of the Tinker family. Their mother and father were civil rights activists. Some administrators created policies to prohibit the armbands and suspended the students until they agreed not to wear them. The tinkers were also represented by an A. C. L. U. Chapter In Tinker decided in 1969, the court affirmed that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. However, schools have a legitimate interest in limiting student speech that would quote materially and substantially interfere with the requirements of appropriate discipline in the operation of the school. The following is an exchange between Justice Byron White and the Tinkers, Attorney dan L. Johnston studying mathematics. They're supposed to be well except that your honor. I believe that the method that the students chose in this particular instance was specifically designed in such a way that it would not cause that kind of disruption. This actually became known as the tinker test. A school can't simply ban a form of speech because it's unpopular or challenges authority. It has to actually disrupt the school day or interfere with the schools function of educating Children. The next series of cases looked at what would be considered interference in these cases. The students were less lisa Simpson and more bart. In 1986 the Supreme Court heard bethel school District V fraser at an assembly of 600 classmates. At a Washington State High School student, Matthew fraser gave a 117 word endorsement speech for a classmate running for school vice president. The speech was full of sexual innuendoes and double entendres. I know a man who is rock hard, he's firm in his pants, he's firm in his shirt. His character is firm. The speech began Frazier said that his friend Jeff Coleman doesn't attack things in spurts. He drives hard, pushing and pushing until finally he succeeds. He concluded, Jeff is a man who will go to the very end. Even the climax for each and every one of you, according to the court record, The crowd hollered and imitated sex acts. Other students reacted with embarrassment or confusion. The school suspended fraser and removed him from the list of candidates for graduation commencement speaker. He gathered enough write in votes to secure a spot at the podium at graduation, but the school disregarded this. He and his family filed a lawsuit arguing his First Amendment rights were violated. When the case reached the Supreme Court, his attorney argued that sexual metaphors do not reach the court's definition of obscenity established in miller v California. Wouldn't you find this speech offensive to intelligent people? Uh no, personally, I don't find it offensive. The record suggests that most of the students were quite entertained by the speech. That it did succeed in establishing our core with the students and that they succeeded in getting the candidate elected. Sex is not a forbidden topic for students, it's not his candidate. In a 7-2 decision, the court was rock hard in its rejection of that argument. Chief Justice Warren Burger, writing for the court stated that given the schools need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process. The school disciplinary rules need not be as detailed as a criminal code. The fraser case established that schools could discipline students for speech that could reasonably be considered vulgar or offensive. Moreover, it said school boards have the authority to determine what speech is inappropriate. This vastly widened what school districts could censor Hardwick v. Hayward, in which an appellate court upheld a south Carolina high schools ban on clothing showing the confederate flag, cited fraser extensively. The next relevant Supreme Court case was morse v Frederick decided in 2007. It's also known as the bong hits for jesus case in 2000 to Juneau Douglas high School in Alaska permitted students to leave class to watch relay runners carry the olympic torch and route to the winter games responded joseph Frederick, the senior was late to school that day when he arrived, he joined his friends across the street from the school to watch the event as the torch bearers and camera crews passed by, Frederick and his friends unfurled a 14 ft banner bearing the phrase quote, bong hits for jesus end, quote their goal, they later said, was to get on television. That's Chief Justice, john roberts recounting the key event of the day when handing down the court's decision, he clearly disapproves. Principal Deborah Morris ran across the street and confiscated the banner. She suspended Frederick for 10 days for violating the school's anti drug policy. Here's joseph Frederick talking about it on a local newscast. I find it absurdly funny. I was not promoting drugs, I assumed most people would take it as a joke. He filed a lawsuit. Key to his attorney's argument was that Frederick was not on school grounds when displaying the banner. He was a citizen exercising free speech in a public place at a public event. In a 54 decision, the court ruled that school sponsored events are essentially the same as being in school for free speech purposes. This is justice roberts. Again, we conclude that the viewing of the relay by the students was a school event and that our school speech precedents, therefore apply. The Brandi levy case tested. How far from a school can that school exert its authority under a new paradigm of communication. The snap brandy sent was unquestionably sent from a place where the school had no oversight role, a convenience store in oral arguments, attorneys for the school district said that the internet has made the location of speech irrelevant if sent from home or school or the cocoa hut. It has the same effect. This is lisa blatt representing the district when it comes to the internet. Things like time and geography are meaningless and it makes absolutely no sense whatsoever to say that the same speech is somehow within the schools regulation if it's one ft on campus or one ft off campus or at Starbucks or at the cbs or in your car or on the school bus. The internet is ubiquitous. It's uh, and it's, it's just, it doesn't have a geography. She suggested a new standard for school speech. The question is here, She targeted her coaches, the sport and another teammates ability to play and the coach reasonably forecasted someone who berates with the profane gesture and a word. All three of those things is not somebody you want at the bottom of the pyramid. And the record was not just the swearing, but it was disrespect for the for the for the coaches and the entire team and her teammates in connection with the swearing. The caveats to free speech rights specific to students and created by the tinker case should apply off campus. She argued when the student speaks to an audience of students in that school or broaches a school related topic, online rants aimed at the school or teachers or fellow students can interfere with the school. She also said that by participating in a voluntary program like cheerleading, Brandi agreed to be a representative of the squad and the cheer program could terminate her for bad mouthing it the same as when an employer fires an employee who's online conduct shames or embarrasses them. This is Malcolm Stewart, a deputy solicitor general for the Department of Justice, which joined the argument against Brandy speaking to the court. So if I, for example, posted a message online that tracked the text of bl snap, but instead of school softball and cheer, I put Doj law and the Supreme Court, that would be constitutionally protected speech. But DoJ as my employer could certainly take the position that that was inconsistent with my job as a doj attorney and that would rest in part on the fact that my employment DoJ is is voluntary on my part, but it would also rest on the fact that communications like that would have a much greater destructive tendency coming from within the department than from the outside. And the same principle applies here. The attorneys for Brandy argued that extending Tinker standards to online speech would cripple students freedom of speech by imposing in school restrictions on their entire lives. It would also allow the school to replace parents as the authorities on what is and isn't acceptable speech. This is David D cole Blatt of the A. C L. U. This court school speech cases are called that for a reason the authority they recognize is justified by and limited to the special characteristics of the school environment. So schools can prohibit pro drug messages at school, but not elsewhere. They can ban profanity at school, but not at home. So too, they can punish disruptive speech at school, but not at a convenience store on the weekend. Expanding tinker would transform a limited exception into a 24 7 rule that would upend the First Amendment's bedrock principle and would require students to effectively carry the schoolhouse on their backs in terms of speech rights everywhere they go. Now, arguably this could leave a school powerless to intercede in online bullying. About 15 years before this states passed a slew of laws to address online harassment of teens after a spike in public awareness, Brandi's attorneys argued that harassment threats and bullying have narrow legal definitions that go beyond the more subjective interfere standard of tinker. Our position is that bullying can be regulated like harassment consistent with the First Amendment, where it is defined as interpersonal aggression, so severe or pervasive as to interfere with access to education. All of that is critical to that definition. It's not just had an effect on the school, whereas their test is just had an effect on a school. And therefore there test would encompass someone who puts up a sign that says blue lives matter more or somebody who criticizes the coach for physically abusing players or somebody who organizes an off campus protest of the school's covid policies, all of those things could be disruptive, but they wouldn't be bullying, they wouldn't be harassment, they wouldn't be threats. And under our rule, Brandy's attorneys also argued that previous incidents in which schools punished student speech were acceptable because they occurred in play cases or at events overseen by the school. This means that students have other forums. Now, some of them online where they are full fledged members of society with the same rights as anyone else. In other words. So bong hits for jesus could be regulated because it was in a school supervised event, but if it was put on Facebook, it couldn't be punished. Part three. The decision when questioning the attorneys for the school, the Supreme Court justices, both liberal and conservative, seemed skeptical. Here's Justice Stephen Bryer, she used swear words, you know, unattractive swear words off campus. Did that cause the material and substantial disruption? I don't see much evidence it did. Here's justice Brett Kavanaugh as a judge uh, and maybe as a coach and a parent to, it seems like uh maybe a bit of an overreaction by the coach. So my reaction when I read this, uh, she's competitive, she cares seem like millions of other kids have when they're disappointed about being cut from the high school team or not being in the starting lineup or not making all league. Here's Justice Samuel alito what you say is and the solicitor general makes a similar argument. It matters whether the speech targets the school, I have no idea what it means to target the school Justice. Elena Kagan quizzed Malcolm Stewart of the department of justice by tossing out hypotheticals and asking if they could be considered punishable school speech by the standards for which he was advocating. Can I give you a few hypotheticals and you just tell me school speech or not? School speech and let's just assume that all of these cause substantial disruption. Okay, Student emails his classmates, the answer to the geometry homework every day after school school school student emails his classmates that they should all skip school tomorrow for an impromptu senior skip day school speech. Student emails that they should refuse to do any work for english class until the teacher changes the syllabus to include more authors of color school speech so that can be punishable if it causes substantial disruption. Okay, student tweets that there's pervasive homophobia at his school and the prospective students should stay away. That seems like school speech, especially the last part of it when it encourages other people to avoid the school based on this characteristic last one student tweets that his school really stinks and students should stay away. I think it's still school speech. Justice Kagan seemed to get Stewart to admit that there was a range of online speech related to the school that a new standard would kneecap, some of which was socially conscious criticism. The court was not on board with us. On June 23, 2021, the Supreme Court ruled 8-1 in favor of Brandi Levy the court's opinion written by Justice Stephen Breyer was nuanced and acknowledged that the justices were standing on moving ground because of the relatively new and ever expanding role of online communication. It gave ample room for schools to intercede in cases of off campus speech. The school's regulatory interests remain significant in some off campus circumstances wrote Justice Bryer. He listed there as bullying harassment threats. The use of computers in school activities, breaches of school security devices and the failure to follow rules concerning lessons, particularly given the advent of computer based learning. We hesitate to determine precisely which of many school related off campus activities belongs on such a list. Justice Breyer wrote also, the court said that list might vary depending on a student's age, the nature of the off campus activity or the impact on the school itself, but the court didn't extend the broad interference guidelines of tinker outside schools and school events. Instead, they set up a three part guideline for future decisions of lower courts dealing with off campus speech of students. First, generally, parents should be regulating and disciplining students for speech made outside the school setting. Second, courts should be skeptical of schools regulation of off campus speech, particularly if it's political or religious. Third, as nurseries of democracy. Schools have an interest in allowing unpopular speech. It might be tempting to dismiss biel's words as unworthy of the robust First Amendment protections discussed here in Justice Breyer concluded, but sometimes it is necessary to protect the superfluous in order to preserve the necessary to sum it up. The Supreme Court can't give schools an exact list, but there are a few circumstances in which learning or security are so negatively impacted by off campus speech that schools can punish students for it. Brandi levy's snaps didn't rise to that level. Justice alito filed a concurring opinion, noting that a public school has special responsibilities to the First Amendment because it acts as an arm of the state justice Clarence thomas filed a dissent and accused his colleagues of relying on vague considerations and ignoring a long held historic rule that required students to be respectful of teachers. The most annoying area school district claimed vindication because the court decided not to strike down all school punishment for off campus speech. Their statement read in part quote. Although the court upheld the judgment in favor of MS Levy, we are very pleased that the court agreed with our arguments about schools authority to address off campus speech under a wide variety of situations. Amy Howe of scotus blog, an independent website analyzing Supreme Court decisions wrote that the school district may have won the war over regulating off campus student speech but it lost the battle over a cheerleader's profanity laden complaint on Snapchat. The A. C. L. U. Still saw a reason to celebrate the organization is with Brandi Levy's permission selling T shirts stamped with the word Fulk and a list style order of words school softball, cheer. Everything. On the day of the verdict, a newscaster at Scranton Tv station W. N. E. P. Implied he had a chance encounter with Brandi at an opportune location, the cocoa hut. I just feel like the school went really like way too far with what they did and they definitely showed enough and I'm glad that the Supreme Court also agreed with me with that. It feels great. It's been a long four years and that's all for this episode. This episode was researched by Nicole Gus Moradi and written by Nick kepler and matt stroud. If you're enjoying these civil episodes, please consider subscribing and sharing with your friends. We have many more fascinating civil cases coming up and we hope you find them as interesting as we do. Thanks again for listening until next time.
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