Hoppy Kercheval, Opinion

An important and timely victory for free speech

Fourteen-year-old Brandi Levy sounded like she was mad at the world when she failed to make the varsity cheerleading squad at Mahanoy High School in Eastern Pennsylvania. She posted a picture of herself and a friend flashing the middle finger on Snapchat and wrote, “F— school, f— softball, f— cheer,  f— everything.”

School officials were alerted to the post, and they disciplined her by suspending Levy from cheerleading activities for a year. Levy and her parents appealed the decision, arguing that her speech was constitutionally protected.

Wednesday, the United States Supreme Court in an 8-1 decision sided with Levy. Justice Stephen Breyer, writing for the majority, determined that the student’s speech was protected by the First Amendment. Justice Clarence Thomas dissented, writing that he would have upheld the school’s decision to discipline Levy.

Justice Breyer said schools should be “nurseries of democracy. Our representative democracy only works if we protect the ‘marketplace of ideas.’ ”

Levy’s situation was different from previous high-profile cases involving the First Amendment and public schools because Levy’s speech occurred away from school property. “Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility,” Breyer wrote. “The school will have a heavy burden to justify intervention.”

However, the Justice did not deliver a carte blanche to off-campus speech. He said schools can still take disciplinary action when the speech creates a “substantial disruption of learning-related activities or for the protection of those who make up the school community.”

This is one of the more significant school free speech cases in years. In 1969, in Tinker v. Des Moines Independent Community School District, the Supreme Court ruled students who wore black armbands to school to protest the Vietnam War were exercising their First Amendment rights and could not be punished.

Dropping the f-bomb over failing to make the cheering squad is not the moral equivalent of a political protest against a war, but speech comes in all different forms. The First Amendment does not discriminate on the merits of the speech; it exists to protect unpopular speech that the government may try to stifle.

The decision comes at a time in this country when the cancel culture is busy punishing expressions that one group or another finds offensive, hurtful or inappropriate. This widespread effort to silence speech is having a chilling effect on public discourse.

Most of the “canceling” is not a constitutional issue. The First Amendment only restricts action by the government, not the private sector. However, the First Amendment does set an informal standard for protecting expression.

This free exchange of ideas, even ones that may be offensive to some, creates the opportunity for more rational thought. We improve as a society by shedding bad ideas and replacing them with better ones. Simply shouting down or canceling unpopular speech is a toxic trend that generates a culture of fear, rather than fostering freedom.

Hoppy Kercheval is a MetroNews anchor and the longtime host of “Talkline.” Contact him at hoppy.kercheval@wvradio.com.