Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Nico Perrino: Welcome back to ‘So to Speak: The Free Speech Podcast’ where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am your host Nico Perrino. Now, before we begin today’s episode, I want to quickly apologize for a technical error that we had in the last episode featuring Professor Donald Downs. When uploading that episode, we mistakenly uploaded a separate audio file from our new ‘Free Speech Out Loud’ podcast series, which features audio recordings of court opinions from famous Supreme Court cases.
In this situation, we inadvertently uploaded regular, So to Speak guest Bob Corn-Revere’s reading of the case. Cohen V. California now, while I encourage you all to check out Free Speech Out Loud and subscribe, we won’t be carrying its content here on, So to Speak.
After listeners wrote in about the area error error, excuse me, we quickly fixed it and you should now find the Donald Downs interview in your podcast feed. Again, apologize for the error.
So, for today’s show, we are discussing one of the hottest free speech cases on the Supreme Court’s docket this term. The case is Mahanoy Area School District versus BL, which will be argued in front of the court next Wednesday, April 28th. The case involves Brandi Levy, a student and cheerleader at Mahanoy Area High School in Pennsylvania. Brandi was frustrated with her school to say the least, including not making varsity cheerleading team. So, one Saturday, she decided to vent her frustrations on Snapchat and took a photo of herself and her friend flipping off the camera with the caption “fuck school, fuck softball fuck cheer, fuck everything.” The snap was visible to her 250 or so friends, some of whom were fellow students and cheerleaders.
Now the snap made its way to the cheerleading coaches who were not happy with it and they decided Brandi’s snap violated team rules and school rules and kicked her off the Junior varsity cheerleading team. So Brandi sued, the federal district and appellate courts, agreed with her claim that the suspension violated her First Amendment rights. The school then petitioned the Supreme Court to hear the case, and that’s where we are today.
Now joining us to discuss the case and why it matters are Franklin LoMonte and Lindsie Rank. Frank is the director of the Brechner Center for Freedom of Information at the University of Florida. Previously, he was the executive director of the Student Press Law Center in Washington DC and Frank recently published an essay for Slate entitled ‘The Future of Student Free Speech Comes Down to a Foul Mouth Cheerleader’ Frank, I suspect you didn’t write that headline, but even if you did, it’s a good one.
Franklin LoMonte: Thanks.
Nico: Also joining us again is Lindsie Rank, who is a colleague of mine at FIRE. This is actually our first time on the show. She is a program officer in our individual rights defense program and has been following this case closely. Frank, Lindsie welcome on to the show.
Frank: Thanks for the opportunity.
Lindsie Rank: Thanks for having me.
Nico: Frank, let’s start with you. What is the question that the Supreme Court is seeking to answer in this case?
Frank: Well, interesting, you say that ’cause there’s about three dozen briefs at the Supreme Court who all present the case in about 3 dozen different ways. But I think the simplest way to explain it is the school district is asking the Supreme Court to essentially decide that all students speech, no matter when and where it occurs, is now to be regarded as on campus speech because of its ability to reach and affect the school, and therefore it’s now all equally subject to the same degree of school punitive authority.
No matter when and where it takes place.
Nico: Lindsie has a school or is the Supreme Court addressed these sorts of questions before?
Lindsie: The Supreme Court has never decided squarely where the jurisdiction of a school ends when it comes to student speech issues. So we’ve seen a lot of cases where the Supreme Court has addressed student speech on campus or at campus endorsed activities, off campus if that makes sense, school sponsored activities but never have we seen the court take up a case where a student is saying the F bomb at a shopping mall, which is what happened in this case.
Nico: Was the bong hits for Jesus case? It would that that kind of be a parallel? Here it was an off campus you know event, although I don’t recall if it was a school sponsored event or not. Frank, do you remember the facts of the case and how might it bear on this one?
Frank: Yeah. I mean, I think a lot of school attorneys would like to use the Morse vs. Frederick case as a license to get into students off campus lives. But if you really read the opinion, it’s a very narrowly drafted opinion. Just like you said, Nico, this is the case where the student at the Juneau, Alaska High School holds up a banner that says “Bong Hits for Jesus” with some classmates and he gets suspended from school for doing it.
And the kind of jurisdictional fudge that the Supreme Court allowed itself in order to resolve that case was to say, well, he was appearing at an event where the school had given students a day off from school and encourage them to all gather in the same place across from the school building to cheer on the Olympic Torch while it was being run through town. For that reason, the court says this was the equivalent of a field trip. It was a school sanctioned event, and that’s the nomenclature they used.
That this is in school speech, says the Supreme Court, by virtue of the fact that takes place at a school sanctioned event that would be a mighty stretch indeed, to stretch the Morse reasoning into just this, Lindsie is saying this student in the Mahanoy case is at a convenience store with her friend on a Saturday afternoon. None of the indicia of school sponsorship or school sanctioning is indicative in this case, so I think would be quite a strain of the Morse principle to try to fit this under the ambit of quote unquote school speech.
Nico: So, the Tinker case in the 1960s, and perhaps we can talk a little bit about that, held that students do have First Amendment rights, at least some in the high school context. But ever since then, the Supreme Court has narrowed their interpretation of that case in four or five subsequent cases. And so, for First Amendment free speech advocates like ourselves. This is a big one. This is an opportunity for the court to really reaffirm Tinker and address this question of off campus speech.
Lindsie, if you could talk a little bit about what the Supreme Court is done since the late 60s when the Tinker case made its way there, and how that’s challenged not just high school speech rights but also the speech rights of college students who have not been implicated in many of these cases, but whose colleges general counsels, use these cases to justify censorship in college as well.
Lindsie: Yeah, sure, I mean, I think you’re totally right that although most of this precedent comes from the K12 contexts at FIRE, where we advocate for the rights of college students, we all the time are seeing college administrators trying to apply these cases to the college and University context. So some of those precedents have been things like that lewd speech isn’t allowed in the K12 context.
That if you’re a student at school and you say sexually suggestive themes that you can get in trouble for that. There’s also, of course, the Hazelwood case that talks about student media, that which both Frank and I work with a lot. Where K12 student media rights were very much diminished by this idea that if the schools imprimatur or the schools name is connected to the student media, then college administrators then have more rights to determine what that content of that that student media might be.
And then of course there’s the “Bong Hits for Jesus” case, you know, where they extended it to this sort of field trip – esque type student activity and said that you know his speech was inappropriate for young minds. So there’s a lot of this of the Supreme Court sort of considering what is appropriate for young people in sort of the school context where the school is acting in loco parentis or instead of parents.
And unfortunately, like I said, we see administrators all the time, taking that and applying it to the University setting were really, you know, college students are adults. Administrators really shouldn’t be trying to act in loco parentis because we’re talking about adults who don’t need or theoretically don’t need you know that supervision, at least from a legal perspective.
Nico: Frank, let’s revisit the Tinker case a little bit? I mean, that’s the foundational case here. It involved Mary Beth Tinker, who I know you’ve worked with quite a bit in recent years on the Tinker Tour and much else.
She and her brother wore black arm bands to kind of mourn the losses of lives in the Vietnam War and were punished by their school in Des Moines, Iowa for doing so. And they took their case all the way up to the Supreme Court, which held that they you know, there are First Amendment rights, students do have free speech rights to a certain extent in the high school context, but although schools do have more flexibility and ability when those rights result in a substantial disruption, substantial disruption is a relative term.
What one might consider a substantial disruption and another might not, and in the years subsequent high school districts and the Supreme Court have driven a huge truck through that hole. Can you talk a little bit about that? And then talk about its implication in this case, when we live in a digital environment, especially now with covid and your campuses are often in your living room, how should we think about the substantial disruption in that way? And do students have any private life? I guess I should say to express themselves or is everything implicating your 8:00 AM to 3:00 PM education Monday through Friday?
Frank: Yeah, so let’s rewind to 1969 and the Tinker case for a second. If you read that opinion by justice Fortas, and this was kind of the last hurrah of that court of the Warren court right after that opinion, both Warren and Fortis leave the Supreme Court, and you have this kind of fruit basket turnover where the court becomes much more deferential to authority figures, and in particular to school authority figures after 1969.
But if you read the Tinker opinion it lays out firmly that there are boundaries that school authorities cannot and should not cross that students are persons under our Constitution that just speculating that speech might cause other people to have hard feelings or might cause an animated exchange of opinions. The court not only says that’s OK, they actually embrace it. They say this is the source of our national strength that we’re supposed to engage in spirited disagreements and differences of opinion, and in fact, that’s not a distraction from education, it’s arguably the whole point of education.
So this opinion is really animated by kind of a notion of schools as a participatory place of learning, a place we learn by using your voice and ever since that time, just as Lindsie explained, the philosophy and the approach of the court has been let’s clear these annoying penny ante school cases off of our dockets and will defer almost with a blank check of authority to people in schools.
And so this idea of a substantial and material disruption, that was recognized in Tinker, which requires the court told us something more than just the mere apprehension that something bad might happen. It requires proof of facts on the ground that something bad imminently will happen. This has been defined down by the subsequent lower courts to mean almost anything that distracts administrators from doing their jobs.
An especially bad iteration of this, I think probably the low watermark in the appellate courts, the Lauren Avery Donniger case. Out of the Second Circuit is student who is a student government official and operates a blog on the site, uses her blog to encourage people to call and email the school to help her overturn a school policy decision. And in doing so, she uses a moderately course word, not the F bomb, to refer to school administrators, and by virtue of having used the moderately coarse term and having encourage people to call and email the school, the Second Circuit decides in the Doninger case that she’s lossed the protection of the 1st Amendment and she’s committed a punishable offense, and I think ominously for this case one of the tangents that that the court unhelpfully goes down is the idea that she only quote unquote only lossed the benefit of participating in an extracurricular activity that is a leadership position at the school, and therefore it wasn’t really very much punishment at all. And we can have a long conversation about the fact that the 1st Amendment is not supposed to be penalty sensitive, and it’s not in the adult world, but there’s every reason to be fearful that when you have a case like this that’s got the complication of the extracurricular setting and the student was forced to sign a waiver. First Amendment rights. We should also talk about that it just has all sorts of landmines at the court. I think honestly, doctrinally, the Mahanoy case is a very easy case, that doctrinally, there is no way for the school to win, and the student to lose if anything approaching recognizable First Amendment principles are applied. But as we saw with the Morse case there are times when school, when the Supreme Court is tempted to say, let’s clear the docket of cases that we think are insignificant, and let’s create new work arounds to enable schools to wield a freer hand of punitive thought.
Nico: Yeah, let’s talk a little bit. Frank and Lindsie about the extracurricular component of this ’cause I think that is a complicating factor as you spoke to that Second Circuit case.
Often the cases that we look at or that the Supreme Court is considered in the high school context, involved school suspensions or expulsions? I think, mostly suspensions.
They haven’t involved extracurricular activities so much, and when I think of extracurricular activities as a former high school and college athlete, you know the coaches are often responsible for maintaining team morale discipline in people who are detrimental to the team.
You know in this case, it wasn’t a practice, it wasn’t a game, but it was discussing the team and she was a member of the team. So how do we think about that? I mean, what do you? Are there certain privileges that come with extracurricular activities that aren’t the same sort of rights that we think of the right to get an education from the government?
What are the? What is the court going to have to grapple here? Frank or Lindsie you guys can go.
Frank: Alright, I’ll start. You said the P word you said the privilege word and so that’s a trigger word for me because in the land of the 1st Amendment that is a meaningless distinction. The Supreme Court has said for many decades that the government can neither take away or right or entitlement, nor a privilege from you. If the intention is to punish you for the content of your speech or to deter you from speaking in the future.
And people understand this very, very well in the adult world. In the column that you referenced for Slate, I gave the example of if you’re a blogger who vituperatively criticizes the Department of Motor Vehicles is called them out in your blogs. This is an incompetent, mismanaged agency, and everybody there should be fired. And then the next day you show up at the DMV to get your driver’s license. They can’t pull you out of the line and say we disapprove of your speech and driving is a privilege and therefore we’ve decided that to punish you. for your anti DMV speech you will no longer enjoy the privilege of a drivers license, right? 100 out of 100 federal judges will get that case right. 100 out of 100 federal judges will recognize that there is no meaningful distinction between a governmentally extended benefit versus a government extended privilege, and so that ought not to be ought not to be a deciding factor in the Mahanoy case.
There’s every reason to fear based on the precedent of the Doninger case, which did involve extracurricular participation and which by the way, just as Sotomayor sat during her time on the Second Circuit, that that may be a distracting factor. But the reality is that if the government takes anything at all away from you, imposes any kind of a disability on you for the message that you’re voicing, that’s enough to trigger the 1st Amendment. And there’s no materially or significance test here. And again, people get this right away in the off campus world.
You know, Nico if you’re walking down the street and a cop sees you wearing the FIRE emblem on your shirt and stops you and says I don’t like that emblem on your shirt, buddy. Here’s a $5 free speech ticket. I’m issuing you a $5 free speech ticket. Nobody thinks that the Federal court would say, oh, just suck it up and pay it buddy. It’s 5 bucks, right? 100 out of 100 federal judges get that right. They say that there is no materiality requirement and of course, that’s an unconstitutional ticket. And participating in high school cheerleading or sports is worth a lot more than 5 bucks.
Lindsie: Well, I think especially if you consider the population that we’re talking about here, right? So for a First Amendment case, the question is what a reasonable person in that population you know, be deterred from exercising their free speech rights in the future? So here we’re talking about a 14 year old kid. Would add another 14 year old kid look at this case and go, ‘oh crap, I shouldn’t complain about my school because I might, you know, lose XYZ,’ and then and then a chilling effect takes place that that kid won’t complain, won’t speak up, won’t you know, say the things that they otherwise would have said, a First Amendment violation has occurred. That’s a chilling effect, that is, that is barred by the 1st Amendment. So I think, especially when we’re talking about, you know teenagers who are going to be scared away by the idea of the big bad administration punishing them by taking them off their tier team or kicking them out of choir or whatever it happens to be. I definitely think Frank is right here, but there’s been a clear First Amendment violation in this.
Frank: She other point I would add to this is you know once the Supreme Court declares some piece of First Amendment real estate to no longer be constitutionally protected, then subsequent courts are not going to make penalty sensitive or punishment sensitive decisions.
And we’ve seen that with the case like the Donnager case, even though the Donnager case was based on the relative leniency of the punishment, it has been relied upon, incited by subsequent courts, including the 5th Circuit, in the Taylor Bell case, to be validation for expelling people from school as well, and so once you decide that a particular category of speech is constitutionally unprotected against a minor disciplinary sanction, then you better be prepared for it to be grounds for suspension or expulsion too. And if you’re not prepared for Brandi Levy to be expelled from high school for venting on Snapchat, then you can’t vote in favor of the school district here.
Nico: Now what if Brandi had said this during practice? what if after the coach gave her the workout for the day, she said fuck cheer and fuck this workout. Would the coach have any recourse in that case?
Frank: I think if it’s directed at the coach for sure, right? I mean at that point you arguably have crossed the line of substantial disruption. I don’t think anybody would make a First Amendment argument, you know, let’s take it outside the athletic setting. I don’t think anybody would make a First Amendment argument that there is a right a constitutionally protected right to direct profanity at an educator on school grounds, during school time. I think that’s a nonstarter, and so surely right? If she directs that speech at the coach, that’s one thing. But you know what makes this so interesting too is the complicating factor of social media.
We should talk a little bit more about that down the road too, but you know, I think to be honest, if after practice Brandi Levy goes with three of her friends to McDonald’s and she says the exact same thing at McDonald’s table and one of the friends, then tattles the coach afterward and said, you know Brandi said that the McDonald’s table, she said fuck school and fuck cheerleading. I think nothing happens to Brandi Levy. I think most educators say, well, you know, I’m not the McDonald’s police, this is not my job. Why are you bringing this to me? But it is that unique context of social media that people in authority, whether it is employers or school disciplinarians feel like they absolutely have to, they’re duty bound to impose punishment for the speech. Because social media is so big, scary and powerful that different rules apply. And that’s going to be the temptation that we’re going to have to be relying on the justices to resist here. To see this as nothing more than a case about Snapchat and not what it really is, which is a case about all off campus.
Nico: Do we think that, Lindsie, do we think that there is some off campus speech that could create a substantial disruption on campus?
Lindsie: I mean, I think that that can be a complicated question, but I don’t think we have to answer that question here. You know if we’re talking about someone saying I’m going to bring a gun and shoot up the school tomorrow like that’s a different conversation that we’re going to have to have separately, but we don’t even have to get there. The court doesn’t even have to get there in this case because all she said is fuck the school like there’s no, there’s no reasonable disruption, there’s no reasonable fear of disruption to the school environment because she says fuck the school. There’s no reasonable fear of violence taking place, not enough that, there’s this isn’t harassing anyone, so this is just core protected speech.
So I mean, maybe there’s a conversation that we would have to have, and if you look at FIRE’s amicus brief in this case, we talk about that a little bit, that that’s sort of a separate question, but it’s just not a question that we even have to be worrying about at this point in this case.
Frank: I would add two things to that. Thing number one, obviously there’s no First Amendment objection to punishing a student for speech that would be constitutionally unprotected speech if an adult said it in the adult world, and so there’s an array of danger, dangerous speech like true threats like incitement to violence, like harassment that is already recognized as being unprotected by the 1st Amendment and subject to government punitive action when adults say it in the adult world, and so one of the kind of canards that we have to joust against in this case, is the idea that somehow, by ruling in favor of the speaker and against the school, you’re depriving the school of the ability to respond to any and all off campus speech. That’s not what the decision below at the Third Circuit said, and it’s not what the court is being asked to decide here.
So that’s thing number one and then number two. I, you know, I also think that there’s a risk here that you know if you look at the briefing that was done below, including by the Solicitor General, every single brief tries to bring it back to bullying, bullying, bullying, bullying. To echo Lindsie’s point, this is not a case about bullying. This is a school asking for the authority to punish non bullying speech so that they can get at bullying. And my analogy would be right this would be like the police asking to be able to pull you over and ticket you for going 55 miles an hour in a 60 zone so that you don’t get close to speeding. They’re trying to punish speech preemptively that might one day approach bullying so that they can stop bullying and the First Amendment just doesn’t allow that. It doesn’t give you this zone of kind of overcompensation where you get to punish harmless speech just to make sure that no harmful speech gets through. First Amendment always defaults the other way that every once in awhile we have to let some quote unquote bad speech get through the net to make sure that all of the protected speech gets heard.
Lindsie: That’s why the Tinker, the Tinker standard is substantial disruption, and not apprehension, or fear of some small disruption. It’s substantial disruption that’s known that you have evidence for. Because we have to have that breathing space for speech that maybe is caustic or frustrating to administrators that is really at the core of First Amendment protected speech.
And I’d also like to point out that when it comes to things like true threats, harassment, incitement to violence we already have structures in place to deal with that kind of speech. We don’t even, I mean, we don’t need to get to this question on this case, but even if we did, you don’t necessarily need it, high school administrators dealing with that because we already have structures in place in the adult world. You know we have law enforcement that deals with it. When someone gives you a call and says I’m going to come over and kill you right now, that’s already. Those structures are already in place because the 1st Amendment has long recognized certain categories of unprotected speech, but this case just doesn’t even come close to any of those categories.
Nico: Yeah, the cyber bullying question is interesting. You know I you could consider a situation where a student is being bullied however you want to define it off campus by someone, but that someone never says anything or never even sees them on campus. I’m going to talk campus. I’m talking about in the high school context here so this gets into the question that the jurisdictional question if the school wanted to go after the student for its treatment of this other student off campus, do we, from a First Amendment perspective, would that be OK, or do we think that there needs to be a scope of off campus life that isn’t under the purview of the school? But as Lindsie says, maybe should be under the purview of separate law enforcement that has jurisdiction there? I just I’m just very wary of how schools are not allowing anyone to have any sort of personal life these days, even when doing so might allow bullying to take place if it’s not properly addressed by parents or law enforcement.
Frank: I mean, I think you have to parse out this very broad category of what’s often referred to as bullying speech into about three or four different sub categories, each of which has an appropriate response to it. We talked about the law of harassment, and so once something is sufficiently severe and pervasive to constitute harassment, then it loses its First Amendment protection.
So, a student who was punished for that act would have no grounds to object under the First Amendment. And that’s true now under current law and so let’s say the student uses their smartphone off campus to bombard another student with text messages in the middle of the night saying ‘kill yourself, kill yourself, kill yourself’ over and over again in the middle of the night that crosses the line of what the law would recognize as harassment even in the adult off campus world influences. I mean Lindsie right that there’s a policy argument about whether the school should police that or not. But in any event, there’s certainly no First Amendment barrier to doing that, because that’s not First Amendment protected if you or I do it, so that’s one sub category of speech.
But then I think you know, kind of the teasing kind of speech that might one day a rise to the level of bullying speech. But that’s just sort of the interplay between the social interplay between teenagers that has always happened even before anybody had smartphones or social media is often much more productively dealt with by the conversation or the parental phone call, you know.
And this case, Mahanoy is so emblematic of that. You know, again, the student didn’t target any other student for any type of harassment. Here it was about her frustration with the school and the First Amendment has always protected our ability to vent our dissatisfaction with government agencies. And so all that it had to happen at most, right? If in fact, let’s take the school at their word that this caused other people at the cheerleading team to experience some dissension within the ranks, it caused some discord within the cheerleading team.
I’m not sure I buy that, but let’s take them at their word. That seems like the kind of thing that educators deal with all the time by way of a conversation. You know, at most the coach picks up the phone. She Contacts the student. She says, you know, you really hurt my feelings with that. I work really hard at this job, and I tried my best to select the best people for the squad and if you got a problem with how people are selected, come on in and let’s talk about it. And oh, by the way, as an educator, I’m really concerned for your well-being. You sound like you’re really frustrated and unhappy with your life and with school.
You know, I’m not really sure that in this situation that the bullying concern is on the right side of this case. The bullying concern may be on the side of Brandi Levy here, Brandi Leavy is the person who seemed to be experiencing some degree of stressors in her life that made her uncomfortable and unhappy coming to school and the idea that we’re going to default immediately to punishing her seems like it’s actually counterproductive to resolving bullying.
Lindsie: Yeah, yeah, I definitely think another risk to this case. If the Supreme Court approaches it wrong, headedly if the if the Supreme Court does decide that schools have this much broader jurisdiction is you end up with schools stepping on the toes of parents, right? So on campus schools are supposed to act in in loco parentis which is again in the place of parents because the parents aren’t there on campus with their students.
But when you get to off campus behavior that’s really the province of parents to deal with what their kids should and shouldn’t be doing. So at a certain point you also have to consider you know what did Brandi Levy’s parents think. And I’ve seen a couple of interviews with them, and I think they said, yeah, she you know she probably shouldn’t have used that language and we talked to her about it, but that doesn’t mean she should have experienced this discipline and school, and I think that’s right, right? Like the parents should be able to say. Hey Brandi, maybe don’t use the F word on social media without the school coming and saying you can’t, you can’t cheer this year or you can’t be on choir, you can’t be in the school play anymore.
Frank: The overlay of social media here too is so important and it can’t be ignored. And it’s one I think, foundational argument for why we should be wary of giving schools the same degree of regulatory authority over Brandi Levy’s speech that they would have if she said the same thing in the classroom.
And that is because social media is so uniquely susceptible to contextual and cultural misunderstandings. You know, if you look at the horror story, the nightmare cases that Justin Carter case out of Texas where a kid who is on Facebook chatting with some of his buddy gamer buddies about the shooter game that they’re playing, gets arrested by the police for threat speech. Because somebody who’s not in on the back story sees a copy of the chat and mistakes this gamer for a would-be school shooter and he spends four months chilling in jail until he can raise the bond to get out.
Winds up with a felony threat speech case hanging over his head for many years until he finally gets depleted out. Social media speech is so often context specific, it requires you to be in on the back story. People speak ironically, they speak jokingly, they quote movie lines and lines out of rap songs and that kind of speech, you have to tread especially careful with the use of governmental punitive authority.
Nico: Yeah, we you see that sometimes with how these social media sites police their own speech on their own platforms or user’s speech on their own platforms, often you find them taking down posts that are satirical because they don’t understand where the butt of the joke is.
Lindsie, can you talk a little bit about FIRE’s amicus brief? What is our interest in the case and how does it intersect in the collegiate environment? We talked a little bit about that before, but if you could put it squarely, I’d appreciate it.
Lindsie: Yeah, sure. So FIRE’s amicus brief our interest in the case is just what I was talking about before that these high school cases, you know on their face seemed like they would only apply in the K12 environment, but all the time are cited by college administrators to censor the speech of college and University students and FIRE as an organization that defends the free speech rights of college students and faculty are very concerned about the idea that the Supreme Court might rubber stamp administrators censoring or disciplining off campus online speech. And we see it all the time, people who listen to this podcast are probably familiar with the huge, huge uptick in cases that are individual rights defense program had over the summer and that that we continue to have and a lot of those cases are on or off campus online speech that there’s a lot of them are social media posts, people complaining about their colleges; policies on line.
There are people who are, who are saying black lives matter online. There are people who are saying, you know that Biden sucks online. There are people on all sides of the political spectrum who we are seeing in our casework at FIRE be disciplined in various ways for posting these kinds of complaints online during their personal time. And these are both students and faculty. And unfortunately we even see some of these high school student speech cases applied to faculty from time to time, so this case, even though it’s not a college or University case, it just has a huge potential to affect FIRE’s work.
Nico: Yeah, when we think about those cases, often it involves a faculty member posting on their personal blog as we just saw at University of San Diego Law School. You know he’s under investigation now by the college University? There’s a risk to a job or an education in those cases. In this case, we’re talking about a 14 year old who’s suspended from the junior Varsity cheer team for a year.
Why should the average American care about this case?
Lindsie: At its core, this is a case about government overreach. This is a case about the government in the form of school administrators coming into your home and determining what your children are allowed to say and do in their off time, and it is. It has the huge potential of being a case about government officials ability to reach into your home and determine what you do, and you’re in your off time because like Frank was saying, it’s always a slippery slope, you know.
It starts with the 14 year old high school cheerleader and it ends up being the you know, the guy who’s posting on his personal blog about the DMV. So it, there’s just always a slippery slope in these First Amendment cases.
Nico: Frank, you have a great line in your Slate piece addressing this question. You said you can’t be a little bit pregnant and you can’t be a little bit constitutionally unprotected either. Can you explain that?
Frank: Yeah, I mean kind of going back to an earlier thread of the conversation that once students or any speaker loses a piece of First Amendment real estate, it’s gone. And so if the court were to decide and Brandi Levy’s case that venting on Snapchat is not protected speech because of the athletic context and this idea of discord in the locker room, there is every chance that in subsequent cases that same type of speech outside the locker room and outside of extracurriculars is also going to be deemed to be unprotected speech, and frankly, we saw that precedent not too many years ago with the Supreme Court and drug testing. The Supreme Court took away the 4th Amendment right of high school athletes to be free from suspicion-less drug testing and then just a few years later they came back and said, well, this seems to be working okay, let’s just take away all students for 4th Amendment rights to be free from suspicion-less drug testing, and so there’s every risk that this is going to result in the speech that keeps me up at night, the speech that I worry about seeing silence to get back to your question about why should we care is whistle blowing speech.
If you read the briefs by the school district and by the Solicitor General, each of them is inviting the court to come up with some type of a formulation that looks like speech becomes punishable if it quote unquote targets the school. That is a common formulations being offered by the school or its supporters and notice what they’re not saying targets the school with wrongful intent or harmful intent, targeting the school will translate in the minds of school authority figures and to Lindsie’s point in the minds of 14 year old to speech about the school. And so what they’re really being asked to decide in a very practical on the ground way, is that speech about the school will no longer be constitutionally protected and that should chill all of us.
Nico: The last high school speech case correct me if I’m wrong was Morse v Frederick, right? And that was 2007. We’re looking at 14 years ago at this point, so to wrap this conversation up, I want to ask each of you how you think the court will come out on this case. It’s a different composition then we had 14 years ago. A lot of these justices haven’t ruled on a speech case, so this will be their first foray into. It. Will be interesting for us who do this work to see what we might be able to expect, the outcome
So Frank, I’ll start with you. What do you think the outcome will be?
Frank: So, I’ll give you the glass half empty in the glass half full. I think the glass half empty and for people who are inclined to be pessimists will say there is a reason that the court took this particular case. They’ve had many, many invitations to take cases involving student off campus speech and student social media speech in the past, but in every one of those cases, the student lost and so there is a reason that they decided to take a case in which the student won and the temptation maybe to say they took it to reverse it.They took it because they’ve like to clear their dockets of what some of the justices may consider to be insignificant cases, that are not federal questions. So that’s the glass half empty.
I don’t actually believe that I actually believe that, particularly if you read what Justice Alito wrote in his decisive, concurring opinion and the Morse case, he said two important things. First of all, he said, I’m not taking anymore exceptions, the window is closed. Don’t bring me any more of these student free speech exceptions. I’m done. Also what he said is I don’t buy this in loco parentis stuff for a minute. When schools are regulating the content of speech, they’re not your mom. They’re not your dad. There are the government, so I really think that that that’s the person to watch on the court. I think Justice Alito and to a lesser extent, Justice Gorsuch are the people to watch on this court. Justice Gorsuch has a pretty good record, including right before he joined the court, a dissenting opinion in a speech that involved overzealous punishment of students speech, in which he vigorously dissented from the two one majority so those are the folks that I’d be watching, but I’m cautiously optimistic.
Lindsie: I think I’m also, cautiously optimistic, but I think that might be because I’m just a generally cautiously optimistic person more than because that’s an educated guess.
I think we just don’t, I’m just not sure if we know enough about this particular court and how they deal with First Amendment issues and especially First Amendment issues in the school contexts to make a call. I, I really hope you know. I pray and I hope that they do the right thing in this case and determine that A: That schools don’t have the jurisdiction to regulate off campus online student speech, and that B: even if they did, this speech doesn’t rise to the level of a Tinker disruption.
But I don’t know we’re just going to have to see aren’t we?
Nico: Yeah we are. Frank, is there a way to lose this case and that wouldn’t be catastrophic? I mean, you talk in your piece repeatedly about how this is one of the most important cases that the court is has taken addressing free speech in the education context. Is there a good way or less bad way to lose this case? For us in fire, I mean, I imagine it would be a footnote that says that their decision doesn’t reach the higher education context, although those in the past have been ignored as well so.
Frank: Yeah, now first of all, that’s the most important point. If the decision is going to be in favor of the school district and against the student, then the court has to not a footnote, but in the body of the case say that this is uniquely an exclusively about the K through 12 school student relationship, which doesn’t apply to the very different context of the Higher Ed relationship.
That’s point number one, but I think point #2 and there is a risk when you’re trying to assemble your five votes in that conference room that they will default to the narrowest possible way for the school district to win just as they did in the Morse case in the Morse case, they were actually invited to decide that speech loses its constitutional protection when it is quote unquote offensive. That was one of the arguments that the school district asked them to embrace and Chief Justice Roberts writes, no, we’re not going there. We will decide it on much narrower grounds. They fashioned this this exemption for prodrug speech that is narrowly crafted. And so there’s a possibility, right?
Kind of crash land the plane safely by just losing on the basis that this is within the locker room and that there are certain decisions like who gets to be on the Varsity team at not that are committed to the sound discretion of the coach and we’re just not going to disturb those decisions. But you know, if I were trying to write that opinion for the school district in the narrowest way, I would say there is a bright line when school punitive authority is used like a suspension or expulsion from school.
We are actually enjoying the benefit of your state guaranteed public education where the First Amendment is going to kick in, so I suppose there’s a way to write it in the narrows possible way. That’s just about the athletic context and a glass half empty, that may be where we land.
Nico: Well, we’ll see. This podcast is coming out the week before the arguments, and we expect the decision. I hope well, we can expect it before the end of the term, which would be late June, early July. Lindsie, Frank I appreciate you both coming on the show and I hope to have you both on again.
Frank: Thanks, enjoyed it.
Lindsie: Thank you, Nico.
Nico: That was a Brechner Center’s Frank LoMonte and FIRE’s Lindsie Rank. The case is Mahanoy Area School District versus BL, and it’s set to be argued in front of the Supreme Court on April 28th with an opinion expected. As I mentioned this summer, this podcast is hosted, produced and recorded by me, Nico Perrino and edited by Aaron Reese. You can learn more about, So to Speak by following us on Twitter at twitter.com/freespeech talk or by liking us on Facebook at facebook.com/sotospeakpodcast. You can also email us feedback at so to speak at thefire.org.
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