The U.S. Supreme Court decided four cases today, reducing the number of pending cases to eight (I expect four on Friday, and the last four on Monday).
The much anticipated “cussing cheerleader” case was decided in her favor, consistent with the Court’s previous First Amendment free speech precedents, i.e., Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969).
Fuckin’ a, the cheerleader wins!!! (that one’s for you, B.L).
Mahanoy Area School District v. B.L., is an 8-1 decision, with Justice Breyer writing for the majority, and only scold Justice Thomas dissenting. In reading the opinions, it is an interesting stylistic choice that Breyer does not censor the vulgarity used by B.L. in his opinion, but Thomas does.
Held: 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.
What was at issue:
The first image B. L. posted on Snapchat showed B. L. and a friend with middle fingers raised; it bore the caption: “Fuck school fuck softball fuck cheer fuck everything.” The second image was blank but for a caption, which read: “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?” The caption also contained an upside-down smiley- face emoji.
And this went all the way to the U.S. Supreme Court?
We have made clear that students do not “shed their con- stitutional rights to freedom of speech or expression,” even “at the school house gate.” Tinker, 393 U. S., at 506 … “[M]inors are entitled to a significant measure of First Amendment protection” (alteration in original; internal quotation marks omitted)). But we have also made clear that courts must apply the First Amendment “in light of the special characteristics of the school environment.”
This Court has previously outlined three specific categories of student speech that schools may regulate in certain circumstances: (1) “indecent,” “lewd,” or “vulgar” speech uttered during a school assembly on school grounds, (2) speech, uttered during a class trip, that promotes “illegal drug use,” and (3) speech that others may reasonably perceive as “bear[ing] the imprimatur of the school,” such as that appearing in a school-sponsored newspaper.
Despite the Court’s ruling, Breyer’s opinion leaves to another day off campus speech:
Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus. The school’s regulatory interests remain significant in some off-campus circumstances … These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.
We are uncertain as to the length or content of any such list of appropriate exceptions or carveouts to the Third Circuit majority’s rule … Particularly given the advent of computer-based learning, we hesitate to determine precisely which of many school-related off-campus activities belong on such a list. Neither do we now know how such a list might vary, depending upon a student’s age, the nature of the school’s off- campus activity, or the impact upon the school itself. Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as “off campus” speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent, e.g., substantial disruption of learning-re- lated activities or the protection of those who make up a school community.
We can, however, mention three features of off-campus speech that often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech. Those features diminish the strength of the unique educational characteristics that might call for special First Amendment leeway.
First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco parentis treats school administrators as standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.
Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.
Third, the school itself has an interest in protecting a stu- dent’s unpopular expression, especially when the expres- sion takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, “I disapprove of what you say, but I will defend to the death your right to say it.” (Although this quote is often attributed to Voltaire, it was likely coined by an English writer, Evelyn Beatrice Hall.)
Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway, we can, as a general matter, say little more than this: Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference.
Supreme Court reporter Robert Barnes at the Washington Post reports, Supreme Court sides with high school cheerleader in free-speech dispute over profane Snapchat rant:
The Supreme Court on Wednesday ruled for a Pennsylvania cheerleader whose profane off-campus rant cost her a spot on the squad, saying the punishment violated her First Amendment rights.
The court ruled 8 to 1 that the punishment was too severe, although it declined to say schools never have a role in disciplining students for off-campus speech.
“It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein,” Justice Stephen G. Breyer wrote in his 11-page majority opinion.
“But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
Brandi Levy — now an 18-year-old college student — was a frustrated ninth-grader when she lamented being passed over for the varsity cheerleading squad at Mahanoy Area High School. On a spring Saturday in her freshman year, she posted on Snapchat[.]
It was supposed to disappear in 24 hours, but her cheerleading coaches were alerted to it, and Levy was suspended from cheerleading for a year — but not from school.
Sounds to me like this was a personal vendetta by this coach for her having questioned the coach’s decision.
An appeals court said schools had no authority over student speech that occurs off-campus.
But Breyer said the Supreme Court was not willing to go that far.
“We do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent … substantial disruption of learning-related activities or the protection of those who make up a school community,” Breyer wrote.
But Levi’s speech did not fit, he wrote.
“The vulgarity in B. L.’s posts encompassed a message, an expression of B. L.’s irritation with, and criticism of, the school and cheerleading communities,” Breyer wrote, adding “the school’s interest in teaching good manners is not sufficient, in this case, to overcome B. L.’s interest in free expression.”
On the same day that the Supreme Court issued a student free speech decision, Florida Gov. Ron DeSantis signed legislation requiring Florida students, faculty and staff to register their political views in surveys in an effort to promote “intellectual diversity” at colleges and universities, and the measure set off backlash across social media. “‘Florida goes full fascist’: Ron DeSantis sparks furious backlash with ‘authoritarian’ campus political surveys”, https://www.rawstory.com/florida-desantis-survey/
“Critics decried the law, which DeSantis claims will promote freedom of speech, as a “thoroughly Orwellian” attempt to gain control over academic debate at institutions of higher learning.”
This is the correct analogy. In the novel Nineteen Eighty-Four (1949), by George Orwell, the Thought Police (Thinkpol) are the secret police of the superstate Oceania, who discover and punish thoughtcrime, personal and political thoughts unapproved by the government. The Thinkpol use criminal psychology and omnipresent surveillance via informers, telescreens, cameras, and microphones, to monitor the citizens of Oceania and arrest all those who have committed thoughtcrime in challenge to the status quo authority of the Party and the regime of Big Brother.