Friday, June 25, 2021

Supreme Court upholds vulgar, off-campus speech

The Supreme Court first recognized the constitutional rights of grade-school students to speak out without punishment in 1969, when it ruled in Tinker v. Des Moines Indep. School District that the speech may only be restricted if it would materially disrupt the educational process. Tinker was also the last time the Supreme Court ruled in favor of students in a free speech case. Until now.

The case is Mahanoy Area School District v. B.L, issued on June 23. In Tinker, the Court said the school could not discipline students who wore anti-Vietnam War armbands in school. But subsequent cases always found in favor of the schools. In 1986, the Court said education authorities could regulate vulgar student speech in school. In 1988, the Court ruled that school principals had broad authority to censor student newspapers. Then, in 2007, the Court said the school could regulate off-campus speech if the student said it the course of a school-sponsored event. The 2007 case was known as the "Bong Hits for Jesus Case." 

In Mahanoy, the plaintiff posted on her personal Snapchat account, "Fuck school fuck softball fuck cheer fuck everything." She did this out of frustration over not making the cheerleading squad. The school disciplined her for this. Over the years, federal courts have not been able to agree on how, if at all, schools can regulate off-campus speech. The Supreme Court resolves that dilemma, at least somewhat.

In an 8-1 ruling (Justice Thomas dissenting), the Court notes that the in loco parentis principle (in which the school stands in place for the parents) is diminished when the speech happens off-campus. Also, "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." And the school has an interest in protecting unpopular expression because American schools are "the nurseries of democracy" and our representative democracy will not work unless we protect "the marketplace of ideas." In sum, Justice Breyer writes:

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.

Under this new principle, the student wins the case. Her speech was neither "fighting words" nor obscene as defined under Supreme Court precedent. This was "pure speech" that B.L. uttered off-campus, on her own time, without even mentioning the name of her school, and she did so on her cellphone to her private circle of Snapchat friends. The school's interest in regulating this speech is low, not enough to stifle her free speech interests. And the speech did not substantially disrupt the academic process. 



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