The 8-1 majority opinion was penned by Justice Stephen Breyer. “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 said 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.'” “But,” he said, “we have also made clear that courts must apply the First Amendment in light of the special characteristics of the school environment.” “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 read.
Breyer disagreed with the reasoning of a lower court opinion that held that a school could never regulate speech that takes place off campus, but at the same time he declined to set forth what he called “a broad, highly general First Amendment rules stating just what counts as ‘off-campus speech.” Instead, he allowed that while the cheerleader’s post were “crude” they “did not amount to fighting words.” He said that while she used “vulgarity” her speech was not “obscene.” In addition, her post appeared “outside of school hours from a location outside of school” and they did not target any member of the school community with “abusive” language. He added that she used her own personal cellphone and her audience consisted of a private circle of Snapchat friends. Breyer said “these features of her speech” diminish the school’s interest in punishing her. Justice Clarence Thomas dissented. He wrote that students like the former cheerleader “who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs.” He added: “For example, a profanity-laced screed delivered on social media or at the mall has a much different effect on a football program when done by a regular student than when done by the captain of the football team. So, too, here.”
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