This week’s episode is designated “explicit” because we kind of have to get into the reeds a little bit in terms of language and speech. But, you know, that’s the nature of the First Amendment.
Last week there was a really important free speech decision handed down by the Supreme Court that you may have heard something about. It was the cheerleader case, and we want to give it a little attention today. It was highly anticipated, so when it turned out to be an 8-1 decision, which is pretty decisive, it was a pretty big victory for the citizens involved. What is notable about that, is the citizen in this case, was a student. A high schooler, at that. It’s been a long time since a student was successful in a free speech case, so this is a really important moment for young people. As supporters of young people we thought this was worth talking about.
To understand this case you have to go back in time a bit and think about a previous case, Tinker v. Des Moines. This was a Vietnam-era case and is kind of the beginning of student’s free speech rights. It’s also kind of the end. It was a major victory for free speech for students, but since then, students haven’t really had too many more victories. The Court may have established in Tinker that students don’t shed their rights at the schoolhouse gates, but since then they’ve been awfully quick to curtail those rights as much as possible.
The story of the Tinker case is interesting because it is pretty political. According to Oyez.org, In December 1965, a group of Des Moines students met in the home of 16-year-old Christopher Eckhardt to plan a public showing of their support for a truce in the Vietnam war. They decided to wear black armbands throughout the holiday season. The principals of the Des Moines school learned of the plan and met on December 14th to create a policy that stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension. On December 16th , Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were sent home. The following day, John Tinker did the same with the same result. The students did not return to school until after New Year’s Day, the planned end of the protest.
Through their parents, the students sued the school district for violating the students’ right of expression. The district court dismissed the case and held that the school district’s actions were reasonable to uphold school discipline. The U.S. Court of Appeals for the Eighth Circuit affirmed the decision without opinion. Justice Abe Fortas delivered the opinion of the 7-2 majority of the Supreme Court. The Court held that the armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it. They argued that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would “materially and substantially interfere” with the operation of the school. In this case, the school district’s actions evidently stemmed from a fear of possible disruption rather than any actual interference.
The irony of the Tinker case is that while it was a big win for student speech, the reasoning of the case, the tests for whether student speech can be suppressed, has been used to silence students’ speech in the decades since.
But the reason it’s important to understand Tinker for our purposes today is because this time around Tinker was finally used for something good and the SCOTUS used it to support students’ rights.
So, let’s get into Mahonoy Area School District v. B.L.
Real quick I want to define a term that’s going to come up a lot, in case you’re not familiar: in loco parentis. In loco parentis basically means “in the place of the parent.” That will make more sense in a minute.
Mahanoy Area High School student B. L. failed to make the school’s varsity cheerleading squad. While visiting a local convenience store over the weekend, B. L. posted two images on Snapchat, which if you are not familiar with is a social media site that allows you to share images and captions with your friends for a limited time. She posted a selfie of her giving the middle finger with the message, “fuck school, fuck softball, fuck cheer, fuck everything.” When school officials learned of the posts, they suspended B. L. from the junior varsity cheerleading squad for the upcoming year. After unsuccessfully seeking to reverse that punishment, B. L. and her parents sought relief in federal court, arguing that punishing B. L. for her speech violated the First Amendment. The District Court granted an injunction ordering the school to reinstate B. L. to the cheerleading team. Relying on Tinker v. Des Moines Independent Community School Dist., the District Court found that B. L.’s punishment violated the First Amendment because her Snapchat posts had not caused substantial disruption at the school. The Third Circuit affirmed the judgment, but the panel majority reasoned that Tinker did not apply because schools had no special license to regulate student speech occurring off campus.
Ultimately, the Supreme Court held that 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.
They argued, in Tinker, we indicated that schools have a special interest in regulating on-campus student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The special characteristics that give schools additional license to regulate student speech do not always disappear when that speech takes place off campus. Circumstances that may implicate a school’s regulatory interests 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.
It’s interesting to note that in the opinion the Court acknowledges that the Tinker standard has been used against students for a longs time. Justice Breyer writes, “Many courts have taken this statement (the Tinker standard) as setting a standard – a standard that allows schools considerable freedom on campus to discipline students for conduct that the First Amendment might otherwise protect. But here, the panel majority held that this additional freedom did ‘not apply to off-campus speech,’ which it defined as ‘speech that is outside school-owned, – operated, or – supervised channels and that is not reasonably interpreted as hearing the school’s imprimatur.’”
But three features of off-campus speech often, even if not always, distinguish schools’ efforts to regulate off-campus speech. First, a school will rarely stand in loco parentis when a student speaks off campus. 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. Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy. 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.
The school violated B. L.’s First Amendment rights when it suspended her from the junior varsity cheerleading squad.
- B.L.’s posts are entitled to First Amendment protection. The statements made in B. L.’s Snapchats reflect criticism of the rules of a community of which B. L. forms a part. And B. L.’s message did not involve features that would place it outside the First Amendment’s ordinary protection.
The circumstances of B. L.’s speech diminish the school’s interest in regulation. B. L.’s posts appeared outside of school hours from a location outside the school. She did not identify the school in her posts or target any member of the school community with vulgar or abusive language. B. L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends.
The school’s interest in teaching good manners and consequently in punishing the use of vulgar language aimed at part of the school community is weakened considerably by the fact that B. L. spoke outside the school on her own time. B. L. spoke under circumstances where the school did not stand in loco parentis. And the vulgarity in B. L.’s posts encompassed a message of criticism. In addition, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom.
The school’s interest in preventing disruption is not supported by the record, which shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class “for just a couple of days” and that some members of the cheerleading team were “upset” about the content of B. L.’s Snapchats. This alone does not satisfy Tinker’s demanding standards.
Likewise, there is little to suggest a substantial interference in, or disruption of, the school’s efforts to maintain cohesion on the school cheerleading squad.
The Court asked us to consider B.L’s speech. It was vulgar, yes. But it didn’t constitute fighting words. And it wasn’t obscene. Breyer writes, “To the contrary, B.L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”
That’s a really powerful statement in my mind. Because it gets to the heart of this. This isn’t because of what she said. It’s because she is a student. And being a student puts her in a double-bind – she is young, and she is beholden to a state institution.
Now, adults have the protected right to criticize state institutions. In Cohen v. California Robert Paul Cohen won that right. He wore a jacket into the LA County Courthouse that was emblazoned with “Fuck the Draft” and the Court ruled it was protected free speech. So why isn’t B.L. afforded the same rights? Simply because she’s young. Breyer has hit the nail on the head. If she were a grown up this wouldn’t even be an issue because this is obviously protected speech. But we don’t believe that young people should be afforded the same constitutional rights as adults. And that’s a whole other episode just waiting to happen.
It’s important to note that this opinion does not disallow for a school to curtail ALL off-campus speech. In the case of bullying, harassment of students or teachers, or other harmful speech they argue the school has a responsibility to step in and do something about it.
While I was sitting at my computer working, my kid asked me what I was doing. I told her I was working on my podcast. She asked me what it was about. I told her it was about a big First Amendment case that had just come through, and I explained the basics to her. Then I asked her what she thought. I asked her if she thought a school should be able to tell her what to do and say when she was not at school.
She thought about it for a few seconds, then said, “No.” But then after a beat said, “But I guess it makes a difference if you are on school equipment or applications or anything. Like if you are on Teams or something through school then they should probably have a say. But if you’re just talking outside of school, then no.” And I thought that was a pretty good distinction for an eleven-year-old.
It’s easy to write these kinds of decisions off because “Oh, I don’t have kids,” or worse, “These are just kids,” but the thing is, the kids grow up. And they are watching. They are paying attention to how we approach our basic rights. And if we chip away at their rights too much, as we have been for decades, why would they think they are important as grown-ups? How are we going to raise adults who think rights are important if we spend the first two decades of their lives telling them their rights aren’t?
So cases like this ARE important. It matters how we treat our kids. Am I saying a 6-year-old should be treated the same as a 36-year-old? No, of course not. But I do think we should seriously consider how we handle the voices of 16-year-olds. No, they don’t have the knowledge and experience of an adult. But maybe don’t tell them they don’t have any value?
If we’re going to raise a generation of leaders, we have to start cultivating those ideas and voices earlier, not later. And you can’t do that by silencing them. College is too late to tell somebody they can think or speak independently. By that time, the lessons have already been learned.
If democracy really is a chorus of voices, then we need to start the vocal training before adulthood. You can’t just jump into that as a grown-up without any practice. You need time and space to figure out how to be an active member of a functioning democracy. And that requires the ability to speak. And sometimes to make mistakes.
The Court did the right thing here. I’m hoping this is a turning point.