Did Brandi Levy have the right to post on her Snapchat account a string of profanities to protest against her non-selection among the cheerleaders the most capped from his school in Pennsylvania who accompany the games of the local softball team, a variation of baseball? The 14-year-old girl, a member of the junior group of these cheerleaders, had indeed launched, major erect, in an angry tirade. “Fuck school, fuck softball, fuck the cheerleaders, fuck everything ” (« Fuck school, fuck softball, fuck cheer, fuck everything »), she exclaimed, in the company of a friend.
The apostrophe had quickly overflowed its circle of subscribers, and the school, obviously anxious to make an example, had reacted by a one-year exclusion from the group of supporters. Brandi Levy was not yet in line. Supported by her parents, she took her school to court, which she accused of having infringed on her freedom of expression, guaranteed by the sacrosanct First Amendment of the Constitution.
By the game of appeals, the case resulted in the highest American judicial body where the judges ruled, Wednesday, June 23, by an overwhelming majority (8 to 1) in favor of the young student. Only the very conservative Clarence Thomas took sides in favor of the school and the sanction. The onus of drafting the ruling in favor of Brandi Levy fell to a progressive minority judge, Stephen Breyer.
“Protect the superfluous to preserve the necessary”
The dean of the Supreme Court considered that the school could all the less claim a right of police force of the language, justifying a sanction, that the incriminated tirade had been published “Outside of school hours”, from’“A place outside the school”. He also noted that the teenager did not have “Identified” its establishment, nor specifically targeted some of its members. He added that the teenager had used her personal cell phone, and that she had contacted “To an audience made up of his private circle of friends”. The judge finally found that the school had been unable to provide proof of a general commitment to prevent students from using insults outside the classrooms.
In so ruling, the highest judicial body in the United States has shown itself to be consistent. In a famous case, Tinker v. Des Moines, returned in 1969, she had already arbitrated in favor of the free expression of high school students against their school, in a much more dramatic context, since it was the wearing of an armband to denounce the war in Vietnam. The judges had ruled that the students did not “Not give up their constitutional rights, freedom of speech or expression at the school gate”.
Stephen Breyer made a subtle allusion to this precedent in drafting his judgment. “It might be tempting to dismiss the comments” by Brandi Levy “As unworthy of the strong protections of the First Amendment (…). But sometimes it is necessary to protect the superfluous in order to preserve the necessary “, he noted.