The Case for Free Speech

June 23, 2021 Philadelphia Gay News

As cries of “cancel culture” regularly resound from various quarters, the importance of free speech — actual legally protected speech — has become ever more critical.

On June 23, in the first student free speech case the Court has taken since 2007, the U.S. Supreme Court ruled 8-1 in favor of Pennsylvania cheerleader Brandi Levy.

Justice Clarence Thomas was the sole dissent, arguing that members of extracurricular programs must meet a higher standard because they “have a greater potential, by virtue of their participation, to harm those programs.”

Two lower courts ruled that Levy’s school violated her First Amendment rights.

In a decision authored by the court’s most liberal justice, Stephen Breyer, the Court found that the teen’s Snapchat F-bombs about her school are protected speech under the First Amendment.

The decision, while narrow in scope, is declarative in message.

“The school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy,” the opinion states.

Levy sued her school after a social media post got her banned from her high school’s cheerleading squad. “F–k school f–k softball f–k cheer f–k everything,” Levy, then 14, wrote in 2017 in an angry Snapchat post.

Levy was reacting to her failure to move from the junior varsity to the varsity cheerleading team. The Snap included a picture of her and a friend holding up their middle fingers.

The case was closely watched to see how the Court would handle the free speech rights of 50 million public school children versus the concerns of schools about off-campus and online speech that could amount to a disruption of the school’s mission or rise to the level of bullying or threats.

The Court found that the punishment the Mahanoy Area School District officials meted out to plaintiff Levy for her social media post made at a local convenience store in Mahanoy City on a weekend violated her free speech rights.

“It might be tempting to dismiss (the student’s) words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary,” Breyer wrote.

Breyer argued that the court has made clear that students “do not shed their constitutional rights to freedom of speech or expression even ‘at the school house gate.’”

Breyer said, “While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.’s interest in free expression in this case.”

Breyer added, “But we have also made clear that courts must apply the First Amendment in light of the special characteristics of the school environment,” referencing issues of bullying and/or violence.

The issue of free speech — particularly unpopular speech as Breyer stated so emphatically — is fundamental to marginalized communities in the U.S. This is especially true as the right intrudes more and more deeply into the civil rights and civil liberties of women, people of color and LGBTQ people.

In March, Lambda Legal joined the Lawyers’ Committee for Civil Rights Under Law, the National Women’s Law Center, pro-bono counsel Ropes & Gray LLP, and more than thirty other organizations on an amicus brief in B.L. v. Mahanoy Area School District.

In reviewing the decision, Lambda Legal Counsel and Students’ Rights Strategist Paul D. Castillo said in a statement, “The Supreme Court did the right thing by recognizing and upholding students’ off-campus free speech rights. Free speech rights for students are particularly important for LGBTQ+ students who are often punished inappropriately in educational environments simply for engaging in coming-out speech or other forms of expression that affirms who they are.”

But Castillo countered that there is a balance to be met. He said, “The Supreme Court correctly acknowledged that schools do have an ongoing legal obligation to address bullying, harassment and threats of violence, whether on or off-campus, that could have devastating or deadly consequences to students if it goes unchecked.”

Breyer’s statement that “America’s public schools are the nurseries of democracy,” is pivotal to both this case and a broader rendering of where we stand on this most fundamental of American constitutional rights.

We model that democracy by ensuring that students have a right to speak in an environment that is free of bullying and harassment, an environment where students are able to speak to and about their own lived experience without fear of reprisal from other students or from school administrators. That includes Black and brown students being free to call out racism and female students being free to call out misogyny.

"When it comes to political or religious speech that occurs outside school or a school program or activity,” Breyer writes, “the school will have a heavy burden to justify intervention.”

“In a representative democracy,” Breyer also writes, students must navigate the “free exchange” of “informed public opinion” and learn how best to apply it.

While the Court was delivering its free speech ruling, Florida Gov. Ron De Santis was proving its necessity. On June 22, De Santis signed legislation requiring public universities and colleges to survey students, faculty and staff about their beliefs and viewpoints.

A chill on freedom of speech if ever there were one.

According to the bill, which goes into effect July 1, the survey will determine “the extent to which competing ideas and perspectives are presented” in public universities and colleges, and discover whether students, faculty and staff “feel free to express beliefs and viewpoints on campus and in the classroom.”

But DeSantis has already espoused views that are distinctly anti-LGBTQ and oppose Black history in the 1619 Project and any and all feminist theory.

The functionality of his new law, according to DeSantis, who is positioning himself to run for president in 2024, is to support “intellectual diversity.”

“It used to be thought that a university campus was a place where you’d be exposed to a lot of different ideas,” DeSantis said. “But now the norm is really, these are more intellectually repressive environments that have orthodoxies are promoted and other points are shunned or even suppressed. We don’t want that in Florida. You need to have a true contest of ideas. Students should not be shielded from ideas.”

Unless those ideas are left-leaning, anti-racist, pro-LGBTQ or feminist.

The case for free speech may have gotten support from the Court on June 23, but the battle to limit and constrain free speech when that speech supports an alternate view to right-wing orthodoxy is ongoing. And repression of free speech will always be a very real threat to us all.