Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Nico Perrino: Okay. 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, as always, your host, Nico Perrino. And today we’re putting together a flash episode to talk about the big decision from the Supreme Court yesterday in Mahanoy Area School District versus Brandi Levy. This is a case that we’ve discussed in the past on this podcast. And for those of you who don’t remember the facts, I’m gonna recap them briefly. And then I’m gonna introduce our guests today, who are gonna discuss the case with us.
The case was argued in front of the Supreme Court on April 28th. It involves Brandi Levy, who at the time was a student and cheerleader at Mahanoy Area High School in Pennsylvania, and she was frustrated with school, to say the least. She didn’t make the varsity cheerleading team so one day, it was I believe a Saturday, at the Coco Hut, she decided to vent her frustrations on Snapchat. And she took a photo of her and her friend flipping off the camera and — with a caption that read, “Fuck school, fuck softball, fuck cheer, fuck everything.” And snap was visible to I believe about 250 of her friends, some of whom were fellow students, fellow cheerleaders.
The snap made its way back to the cheerleading coaches who decided that the snap violated the team’s rules, the cheerleading team’s rules, and kicked her off the junior varsity cheerleading team. I think she was frustrated ‘cause she didn’t make the varsity cheerleading team. Anyway, she decided to file the case. ‘Cause she was a minor, she filed it through her father, that’s why the case is Mahanoy Area School District versus B.L. A minor by and though her father Levy. And she won at essentially every level of this case, I believe. The district court, and then there was a great third circuit opinion, and then the school district petitioned the Supreme Court to hear the case.
Which as I said, it did on April 28th. And here we are today, yesterday was what June 23rd? The Supreme Court issued an 8-1 opinion in favor of Brandi. Clarence Thomas, Justice Thomas, was the only dissenting opinion. There was a concurring opinion from Gorsuch and Alito, I think written by Alito. And here to discuss it today with two people that should be very familiar to listeners of the show, Will Creeley is, of course, legal director at Fire. He’s been appearing on the show on and off since we started in April of 2016. And then, of course, David Hudson, who’s appeared on the show I believe two or three previous times. He is an assistant professor of law at Belmont University.
He is also an author, co-author, and co-editor or dozens of books and articles, and a Justice Robert H. Jack’s legal flow for Fire, and a first amendment fellow for the Freedom Forum Institute. So, David and Will, thanks for coming on the show to discuss this.
Will Creeley: Hey! It’s an honor. Thanks for having me, I’m always happy to sneak on whenever I get a chance. And as I was saying to David before we hit record on this one, I’m so happy we’re here to talk about a good opinion. I mean, ohh, ohh, ohh, the nerves the last couple weeks Nico. They’ve been me, I imagine they’ve been getting to you too, David.
David Hudson: Absolutely, absolutely. My thoughts exactly.
Nico: So, Will, you’ve been doing a lot of media for this, so we’ll give you a breather as we start here. David, do you wanna kind of give us your big picture thoughts on this decision?
David: Yeah, sure. I thought I — looking at this opinion, I had sort of three major take aways. One is I thought it was generally a victory for student free speech rights in general. Second I thought it was a victory for parental rights in a sense. And then third I thought that it was a victory for the Supreme Court’s Tinker decision, which was decided back in 1969.
So, why was it a victory for student first amendment right? Well, the court emphasized that students have a right to engage in unpopular speech. There’s a great line in there from Justice Breyer’s majority opinion, where he says some of the effect that schools are nurseries of democracy.
Nico: Yeah, that one’s gonna be quoted a lot.
David: Yeah, I think that’s gonna get an off quoted phrase. But, I mean, it really reaffirmed the fact that students are persons under the constitution, and they don’t shed their constitutional rights to freedom of speech expression. Not just at the schoolhouse gate but anywhere. And they essentially have greater free speech rights off campus than they do on campus. And that school officials really have a heavier burden when they attempt to regulate speech that occurs off campus.
I though it also was a victory for parental rights because schools don’t always act in loco parentis. And when Brandi Levy made her vulgar Snapchat post at the Coco Hut on a Saturday afternoon, if anybody was supposed to discipline her for that it was really her parents, not the school. Right? And parental rights is something that the United States Supreme Court has emphasized since the 1920s in cases like Meyer v. Nebraska and Pierce v. Society of Sisters. And so, I thought that that was another take away from the case.
And then I think the really refreshing thing for me is that the court reaffirmed a lot of the core principles of the Tinker case, right? They quoted a lot of Justice Abe Fortas’s opinion. Hardly they argued neither students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate. They quoted Fortas for that great line where he said, “School officials can’t act on undifferentiated fear or apprehension of disturbance.” Right? “Which is not enough to overcome the right to freedom of expression.” And they reaffirmed that, look, it has to be a substantial disruption before school officials can punish students. Right?
It can’t be a minor disruption, it can’t be some vague generality of bothering team cohesion or team moral. It has to be a substantial disruption. So, those were the three major take aways that I took from it.
Will: Yeah, I’m with David on all those excellent points. And David has articulated the crux of the matter and really the main reasons for my relief yesterday and and my lasting relief this morning. Like David, I’m please to see the court really rediscover the animating spirit of Tinker. That student speech rights are important, and they’re important for a variety of reasons.
And maybe that’s what I’m most excited about, thinking about all the new tools in our toolkit. I was joking around yesterday to folks saying, in that all-staff meeting we had at lunch, where we were chewing over the opinion together. It was kinda like a bunch of kids hanging out on Christmas morning checking out all the new toys under the tree. I mean, look at all this great new language that we’re gonna use to defend students and faculty nationwide for the next 20 years. I mean, there’s a lot of good stuff in there.
And sure, a lot of it is indicted. I’m sure we’ll get to the whole thing and what this case means going down the line. But job No. 1 was making sure that Brandi Levy’s rights were vindicated. And that is a big check in that box. Kudos to the ACLU of PA, the ACLU National David Cole for bringing this one home. Because that Friday night when I found out that cert had been granted, I won’t forget it, my colleague, our colleague, Kaitlyn Patten, sent around an email about 6:30 that Friday night in January saying, “Hey, I don’t know if this went around already today, but Supreme Court wants to hear Mahanoy.”
And I thought, “Oh, no. Oh, no.” Because the third circuits opinion, and I miss it already, the third circuits opinion was so clear and so useful for not only resolving this case, but a variety of cases. As David knows just as well as anybody, the courts have been wandering around in the desert, trying to figure out — the appellate court’s been wondering around in the desert trying to figure out a workable rule for off campus, and online student speech in the K-12 context for going on two decades now. And so, when the court hauled up Mahanoy out of all the cases, L.V. to Womba, Doninger, — out of all the cases that have kind of kicked around here for the last 20 years, when they wanted to hear this one, I got nervous.
So, job one was getting Brandi’s rights vindicated, and that’s been done. So, kudos to all involved. And really, kudos to Brandi and her family for standing up and fighting the good fight. I can’t say that enough. And now job No. 2, is to take these shiny new toys we have from this language, take these three features, as Justice Breyer called them, and put them to good use. Make sure that we have not the kind of flowery language that can’t be put to good purpose, but rather we have good language that’s gonna animate good rules and more clarification from the lower courts in the years to come. And that’s a job for us, and that’s I think what we’ve got to do next.
Nico: Yeah, and I don’t think this outcome was clear from the oral arguments. I mean, there were some good questioning back and forth, there were some skepticism. And then when you look a the past cases, especially since Tinker, we’re looking at Hazelwood, Bethel, Kulhmeier, Morris v. Fredrick. I mean, the court hasn’t in the past half century been very good on high school speech cases.
Will: It’s been very bad on high school speech cases. This is one of the real areas of erosion and decline in this courts first amendment jurisprudence from an advocacy standpoint, from a first amendment advocacy standpoint. I mean, that’s what scared the hell out of me when they pulled it up. I though, “Oh, come on.” And I just wanna stop for just a second, there’s so much to talk about here. So, pardon me for going off in different tangents here, but the mind is still racing. Think about all the bullets dogged in yesterday’s opinion. Folks can say, “Oh, it’s narrow. There’s no bright line rule, etc.” Yeah, but think about all the paths we did not go down.
And kudos to Frank LoMonte for using the bullets dogged analogy in a tweet yesterday. And I think that’s the right way to think about it. After we got done thinking about all the new toys and the shiny new language we have to deploy, we also started talking about all the things that didn’t happen in this case. We don’t have a special care out for extracurricular speech. Right? We don’t have a loss. We don’t have embolden school administrators who now have the Supreme Court’s seal of approval for extending some kind of long arm jurisdiction into student speech without any kind of qualification or restriction. So, all those things are really helpful. It’s useful just to think of the path not travelled. And that makes me feel pretty good.
Nico: For our listeners here, David, what was the question presented to the court squarely?
David: Well, one of the questions was, the third circuit’s main opinion was that Tinker doesn’t apply at all to student off campus online speech. And so, one way that the case was iterated was —
Nico: Hold on, it looks like Will has an addendum to that.
Will: All right. Just to — but I wanna just to be clear on this point, David ‘cause I know you know this. But I wanna make sure the listeners are clear ‘cause I see this glossed over quite a bit. The third circuit’s opinion did reserve the question of how to approach harassment or true threats. And I see a lot of that both in the arguments from Lisa Blatt for petitioner, but also just in the general media coverage. That the third circuits opinion would’ve been this kind of handcuffs on school administrators to do anything about off campus speech. And I don’t quite think the third circuit went that far. If you think that’s fair?
David: Oh, no, that’s absolutely right. Harassment and truth rats, those are — certainly truth rats is an unprotected category of speech. And I think that’s the real difference between Alito’s concurrence and Breyer’s majority opinion here. But essentially there was a feeling that the third circuit may have gone a little bit too far in saying categorically that Tinker was really was confined to on campus student speech, and simply didn’t apply to off campus student speech.
But the brilliant of the third circuit opinion, I thought, is they also said, “Well, even if Tinker applies, there’s not a substantial disruption here.” And that was really a brilliant move by the third circuit because that allowed the Supreme Court to say, “Well, while we don’t agree with this sort of categorical rule, the third circuit that Tinker generally does’t apply to off campus speech, we agree with the third circuit that there’s nothing approaching a substantial disruption here.”
But I wanted to reaffirm something Will said because I think he said it more eloquently than anyone I’ve ever heard so far. Is he said, “That this decision reaffirmed the animating spirit of Tinker.” And I think that is just a most glorious aspect of this opinion because ever since Tinker, we’ve been having so called Tinker carve outs. Right? We’ve been chopping away at Tinker, and this decision reaffirms and breathes new light and spirit into Tinker.
Nico: I wanna go back to that third circuit opinion ‘cause we said that this court didn’t quite agree with the third circuit, it issued a more narrow opinion. And here’s what Breyer says in his majority opinion. He says, “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 interest remains significant in some off campus circumstances.
The party’s briefs and knows of amici,” of which Fire was one, “with several types of off campus behavior that may call for school regulation. These include series of either bullying and harassment, targeting particular individuals which we just discussed, threats aimed at teachers or other students which we just discussed, 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.” I mean, one of the things they do there is they just go through a list of unprotected speech categories.
So, Will, when you’re talking about how will people say, “Well, if the third circuit’s opinion stand in, people would be free to harass and bully.” It’s like, no. And maybe it’s because the public doesn’t understand why the carveouts are to the first amendment? That these are already unprotected categories. But reading further down into the opinion, and I think this is kind of gets to the crux of what the Supreme Court did here.
They said, “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 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 substantial disruption of learning related activities,” yada, yada, yada.
Will: Yeah. Yeah.
Nico: So, Will, how is this any different than Potter Stewart’s “I know it when I see it”?
Will: Well, that’s a good question, Nico. And I tell you what, just as you said earlier, we didn’t necessarily have a great read on which way this ball was gonna bounce following oral argument. I felt a lot better after oral argument then I did going into it. The court was far more concerned with the proposal by the school district to kind of give administrators carp launch to reach into student’s private lives than I had expected. So, I felt pretty good after oral argument.
But the other thing I felt after oral argument, this is to your point, is that the justices were kind of at a loss. They all kinda sounded like the dogs that had caught the mail truck. Now that they had the case involving student speech rights in front of them, what the hell were they gonna do with it? You could kinda see them entering this trap that they had set for themselves by granting cert, and saying, “Wait a minute, this is hard. Where do we draw this line?” So, I’m not surprised that in the end, they didn’t really draw a line. What we got instead were tea leaves, we got clues, we got Justice Breyer kind of pointing in a general direction with these three features.
For the listener’s sake, let’s go over those real quick. If I may, if that’s agreeable?
Nico: Yeah, we should go over those three features. ‘Cause he created a test of sorts, or at least a guide work to think about these cases.
Will: He created a quote he called three features —
Nico: It’s not really a test. Right? ‘Cause it’s like —
Will: No, no. It’s three features man. And I also wanna just say that I’ve already heard this in the office, people saying, “Well, yeah. The three factors,” and they say, “I’m gonna be up-headed about this for a long time.” And I say, “No, no, no. They’re not factors, they’re features.” Right? Let’s talk about the three features.
So, the first feature, as David astutely alluded to earlier, is that there’s this interest in the parents. That the parents have the interest to punish their own kids or regulate their own student speech — their own children’s speech. And when you’re out of campus — when your, as the court puts it, geographically speaking, off campus speech will normally fall within the zone of parental, rather than school related responsibility.
So, that’s number one. Right? Where your speaking counts. It’s Saturday afternoon and you’re at the Coco Hut. Unless the school is having some weird exam prep sponsored by school administrators at the Coco Hut on Saturday afternoon, guess what, you’re on your own time. Coco Hut does not belong to the Mahanoy Area School District. And by the way, I urge listeners to google search the Coco Hut, it’s exactly as cool looking as you’d think it would be.
No. 2 the —
David: That’s a convenient store, right?
Will: It’s a convenient store. So, No. 2. So, first of all, in loco parentis doesn’t apply when the students are in the parent’s control. Right? That’s the parent’s job. And there’s a number of amici briefs that pointed out this, I think for example, the conservative ACLJ file, the brief in support of magna party saying, “It’s the parent’s responsibility, damn it! It has nothing to do with the school.” And I think Mr. Levy said this much too, to the media, he said, “They should’ve called me, I would’ve done something about it. It’s not your right to punish the student for what she does on her time.” So, that’s No. 1, sorry.
No. 2 is — and this is a really good point. I’m very happy the country put this into writing. It says, “Courts should be skeptical, more skeptical of a school’s efforts to regulate off campus speech. For doing so may mean that the student cannot engage in that kind speech at all.” Because the speech that a student udders off campus, if that can be regulated too, then guess what, the students are on the clock subject to punishment 24 hours a day. That’s a surveillance state. Fire’s brief hammered this point. We said, “Look justices,” — and the third circuit hammered this point too, for what it’s worth.
Said, “Look justices, if schools can punish students for what they say off campus, then it’s open season on a wide variety of student speech. And you’ve really restricted their universe of what they can say into just screaming in their bedrooms with nobody around.” I mean, that’s the only place the students are going to be able to vent their frustrations today. And think about the ramifications for, you know, you go to a Black Lives Matter rally on the weekend or you go to a Trump rally on the weekend, and someone sees your post about it. Do school administrators really wanna be responsible for navigating that thicket? I’m sure some do.
But the court just said, “Now in the second feature, when it comes to political or religious speech that occurs outside of the school or a school program activity, the school will have a heavy burden to justify intervention.” And you can bet we’re gonna be tattooing that exact phrase on letter and lawsuits for years to come because that’s important. I’m really glad the court got that in there.
And finally, to wrap it up here, the third feature. So, when Breyer’s talking, in loco parentis doesn’t apply. Be careful that students aren’t on the clock for punishment all the time. And third, and this one is really fascinating, this one goes back to reaffirming, I think, Tinkers animating spirit. Is that schools themselves have an interest in protecting unpopular expression. And that teaching students that unpopular expression is part of education. I loved it. This is maybe my favorite part of the whole opinion. This is the one that makes me feel really good, even though we don’t have a bright line. Even though we just have these features, these load stars to point toward, this is a good one.
Hey schools, guess what, it’s part of your job to teach about the first amendment. The first amendment means sometimes you have to hear and respect, if not agree with, but allow for speech you don’t like. And that’s part of your educational mission. So, you have an interest of protecting that. That makes me very happy and I think that’s really maybe the most important point.
Nico: Yeah, and here’s Breyer’s language to that score, kind of you go blackish without being quiet as you go black. American 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 the future generations understand the working and practice of the well-known aphorism, “I disapprove of what you say, but I will defend to the death your right to say it.” Then he puts in parentheticals, “Although this quote is often tributes to Voltaire, it was likely coined by English writer, Evelyn Beatrice Hall.”
So, we get some language there, nurseries of democracy, that I think will be reflected in kind of first amendment discussions, free speech discussions for years to come in the same way the marketplace of ideas is often quoted. Which he quoted in his opinion. But, yeah. He ends that section by saying, “Taken together these three features of much off campus speech means that the leeway the first amendment grants to schools in light of their special characteristics is diminished.” Then he punts, “We lead for future cases to decide where, when, and how these features mean the speakers off campus location will make the critical difference.”
Will: David any other thoughts on the majority opinion?
David: Well, I think that one important thing, I think, to understand about Tinker, is really sort of two parts to the Tinker rule. Right? There’s the substantial disruption part, which is how this case was decided. And it was very clear from oral argument that Justice Sotomayor and Breyer basically said, “Look, is there really a substantial disruption here?” And ultimately, that’s what the court decided. Right? There just simply wasn’t anything approaching a substantial disruption or even a reasonable forecast as potential disruption.
Nico: Is that dangerous though? I mean, David, is that dangerous that they rested upon that? I mean, Breyer says in his opinion, “We can find no evidence in the record of this sort of quote substantial disruption of a school activity or threatened harm to the rights of others that must justify the school’s action.” Let’s say Brandi Levy’s snap on a Saturday at the Coco Hut started a movement on campus of sorts.
David: Well, yeah. But that’s always gonna be a concern with the Tinker test, when it partly depends upon the actions of onlookers. Right? I mean, it’s certainly, it’s been said sometime by some courts, sort of sanctions the heckler’s veto. But it does reaffirm that standard. Right? So, there’s no substantial disruption. I think it’s important though to acknowledge that there is another part of Tinker. And that is that public school officials can prohibit student speech when it invades the rights of others. And her tweet was — or her snapchat was not targeted at another specific individual. It’s still an unsettled area of K-12 student speech jurisprudence as to exactly when student speech invades the rights of others.
That’s something that’s still very much in play. That’s something that we need Fire for certainly because we do not wanna have an expansive interpretation of the invasion of the rights of others. That would be scary. That would be terrifying. And when we live in an age of cyberbullying, I think there’s still a lot of work to do to narrowly caven that category. That’s something this case did not deal with, again, ‘cause there’s no harassment, there was no targeting of a specific individual, there was no invasion of the rights of others. It was just a general expression of frustration.
Nico: And it was also kind of superfluous, as the court says.
Nico: And that’s what Breyer says at the end of opinion, “It might be time to dismiss B. L.’s words as unworthy of the robust first amendment protections discussed here in.” And this is great language, as well, “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.” But my concern always comes with the necessary, or the things that rankle people more, or the things that might be closer to the line. Are they gonna start walking this opinion back?
Will: Well, I worry less about walking back from the core of commitments and more about how these three features will play out in the details. And David’s exactly right, the invades the right of other languages is out there. There’s a number of cases that Fire’s participating in as amicus at the appellate court level right now. Which involves high school snapchat speech. That I instantly thought of after reading the opinion yesterday, and tried to pry some of those features to these outstanding cases. And as David says, it’s unsettled. And as good as some of this language is, it’s very easy to imagine how schools will attempt to distinguish it.
They’ll say like, “Unlike Mahanoy, this speech mentioned another student by name, or mentioned a school by name. Unlike Mahanoy, this speech cause more than the disruption…” I mean, to some extent it’s helpful to have the disruption in Mahanoy, it being so slight, and so admittedly slight that the justices could note that there was no material, or substantial disruption, or even reasonable forecast of such. But as we’ve seen in cases like Doninger, right, the lower courts are weird with what they think a disruption might be.
So, I can see a court saying, “Unlike in Mahanoy, where the school district administrator admitted there was no disruption, here we’ve got X, Y, Z.” Right? I can just see those features having some play in the joint so to speak, and there’ll be room for mischief and room to — I don’t want Mahanoy to be this easy to distinguish case for all the lower courts. And sometimes I worry that it may be, we’ll see. We will see, there’s a lot of work to do. So, we’ve got some good tools but we’ve also got certainly challenges.
Nico: So, I wanna move to the concurrence from Alito and Gorsuch. And they write, that they wrote their concurrence because this is the first case in which we have considered the constitutionality of a public schools attempt to regulate true off premises student speech. And therefore it is important that our opinion not be misunderstood.
And then in footnote two, which is of interest to us who work in the college environment, they write, “This case does not involve speech by a student at a public college or university. For several reasons including the age, independence, and living arrangements of such students, regulation of their speech may raise very different questions from those presented here. I do not understand the decision in this case to apply to such students.”
He doesn’t editorialize on that much to suggest that college students might have more free speech rights. But I think it’s understood, or suggested, or implicated by that footnote. Wouldn’t you say, Will?
Will: Absolutely. We will be hammering that for along time. Yeah, I’ll tell you what, after oral argument, if you ask me which justice I’d want to write the brief, I would’ve said Alito. Student speech has been a concern of his and from predating his time on the court. And he’s been sensitive, generally, to the importance of protecting speech in higher-ed. So, I think of him as a justice to, who some extent, gets it when it comes to free speech on campus. And when it came out as Breyer — when I’m sitting there refreshing the Supreme Court’s page and you see that B right there, I thought, “Oh, here we go.”
Breyer, as I recall, as I learned in oral argument, is the son of a school principle. If I’m not misremembering. David, do I have that right?
David: I believe so.
Will: Yeah. So, some of Breyer’s questions, I find them hard to read in oral argument. But Alito I was pretty sure was gonna be on our side. So, I’ll put it like this. Alito’s opinion, which is kind of this fascinating exegesis of the basis for in loco parentis, why does the state educate students in the first place, what right does the state have to restrict student speech in public schools in the first place?
That footnote two is gonna do a lot of work for us because it says, “Wait a second. Before we even talk about any of this, let’s be clear. We’re talking about grade school students.” And that’s a clarity I would’ve loved to have seen in the majority opinion, but we’re gonna make hay with it in the concurring opinion because that is a clarity that we rely on and we insist upon. And it’s been implied in other student speech cases and student cases generally before the court. But it’s nice to have another brick to build that wall with because there should be a wall — grade school speech should be treated differently for all the features listed in the majority opinion. And so, that’s a nice place to start with, Alito.
Nico: David, I know you’re kind of a scholar of Supreme Court.
Will: Kind of? Kind of a scholar?
Nico: He’s the expert, he’s a Jackson — he’s a [inaudible-crosstalk] [00:30:27] he’s the scholar.
Will: Thank you. He’s the expert, he’s the nations preeminent experts. Let’s put it like that.
Nico: Yeah, your recall of cases is — it still impresses me. Even after I’m well aware of it. But Justice Breyer, if I’m recalling him correctly and his thinking on first amendment issues correctly, he places a lot of emphasis on kind of how speech might serve democracy or the marketplace of ideas. And please correct me if I’m wrong, is more skeptical of speech that might not serve those purposes.
And so, my concern here was that he would see this as superfluous, and sort of dismiss it as not contributing much to the marketplace of ideas or to the democratic framework that our country depends upon. But he almost kinda took a step back from looking at the content of the speech. And how it might serve those purposes to the role that colleges — or not colleges, high schools play in holstering that democracy and the necessity of allowing a wide birth there to allow students to even engage in superfluous speech.
David: Yeah, I’m with Will. When I saw that Breyer wrote the opinion, I was a little nervous. Now I did remember an old argument that he had some questions about, “Is this really a substantial disruption?” But Breyer’s jurisprudence on the whole, I don’t think is great in the area of the first amendment. He’s often referred to as a balancer and he often will consider the regulatory interests of the government quite significantly. And he doesn’t — sometimes — he just balances things a bit much instead of sometimes affirming core first amendment principles.
Alito too, at times, has been bad on the first amendment right. Recall he was the lone dissenter in Snider versus Phelps. He’s been the lone dissenter in other first amendment cases. But as Will said, in the area of student speech, he wrote the sax opinion, I believe, the third circuit. Which he quoted in the case. And I thought one of the great takeaways from Alito’s concurring opinion here is he says quote, “Bullying and severe harassment are serious and age old problems. But these concepts are not easy to define with precision required for a regulation of speech.”
And so, to me, that’s a great line to quote anytime we’re dealing with any sort of policy that tries to regulate or define harassing or bullying speech. So, I think, in full candor, you ask my opinion about the justices and first amendment jurisprudence, I think Breyer and Alito generally are — it’s kind of a mixed back with them. I mean, they’re not William O. Douglas, they’re not Thurgood Marshall, they’re not William Brennan. But in the area of student speech, Justice Alito, as Will said, has been pretty strong. And it reaffirms his pattern of writing concurring opinions. Didn’t he have a concurring opinion in Morris v. Fredrick in 2007 with Kennedy that was pretty good.
So, I think it’s right, he does get it when it comes to student speech. And this is, I think, one of Breyer’s very best first amendment opinions that he’s ever written in his long tenure on the court.
Will: Yeah, that’s right David. I looked it up, by the way folks. So, I don’t have anybody emailing me after the fact. He was not a — Irving Breyer was not a principal, but rather an attorney for the San Fransisco School Board for a good 40 years, so.
Nico: That’s even worse.
Will: Yeah, no. That’s right. So, I was doing a podcast for National Constitution Center after the oral argument in Mahanoy with Francesca Negrone for the Nation School Boards Association. I think that’s where I learned the fact from it, he said, “Breyer’s one of ours.” So, that may be where I heard it. But yeah, no. David’s right. But it’s an interesting concurrence from Alito.
David: Yeah, I mean, he spends — it’s a longer concurrence — the concurrence is longer than the opinion. And they spend a lot of time just kind of philosophically analyzing what it means to enroll your kid in a public school. They write, “When a public school regulates what students say or write when they are not on school grounds and are not participating in a school program, the school has an obligation to answer the question with,” — which I began, “Why should enrollment in a public school result in the dimension of a student’s free speech rights, when enrollment in,” — and this is me kind of — that was the quote. But then it’s like as compared to enrolling your student in a private school where the government wouldn’t have that long reach into their off campus lives.
And then he said — they say, “Later, enrollment cannot be treated as a complete transfer of parental authority over a student’s speech.”
Will: Yeah, that’s right. And this speaks to David’s point about Mahanoy being kind of a big win for parental right’s too. Because all of that language, that history of the relationship between parental control and school control is gonna be useful. And we may see that play out in cases yet to come. I’m thinking of the discussion we’re seeing nationwide about school curricula, what kind of input parents and state legislators can have in public school curricula. There are elements of that as well. We’re seeing these protests play out about what students are being taught, the partisan of discussion of critical race theory etc. in schools.
Some of Alito’s, and joined by Gorsuch, some of that work in there may figure in. Now that’s a different podcast for a different time in a different legal question. But it’s interesting to see Alito tract the history of the relationship between student and educator in this concurrence.
Nico: I wanna talk now, or close out, with a discussion of Justice Thomas’s dissenting opinion. Which probably isn’t much of a surprise that he was a dissenter here. His takeaway is that, “A search and review reveals that school’s historically could discipline students in circumstances like those presented here. And because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent.”
He also says, and I thought this was interesting, “Perhaps there are good constitutional reasons he writes to depart from the historical rule. And perhaps this court and lower courts will identify and explain these reasons in the future. But because the court does not do so today because it reaches the wrong result under the appropriate historical test, I respectfully dissent.” David, what are your thoughts on his argument there, that it’s untethered from history and the constitution?
David: Well, it’s not quite as bad as his concurring opinion in Morris v. Frederick. But it’s still bad. I mean, how much millage is one gonna get off the old Jack Seaver case from Vermont? I mean, God, he sites this old Vermont, 19th century Vermont case as if it’s the gospel on high. And I knew we weren’t gonna get his vote. I mean, he’s called for the overruling of Tinker and Morris v. Frederick. I frankly didn’t find this as bad as his concurrence in Morris. I mean, it’s not great, obviously, but he does say plausible arguments can be raised in favor of departing from that historical doctrine.
So, I mean, there’s at least maybe a hope in the future in the right set of circumstances. Perhaps he’d actually vote for a student. But I didn’t spend as much time dissecting his opinion, I knew when he starts quoting the old Jack Seaver case —
Will: What year is that one, David? Is that 1847 or something like that?
David: Something like that. 1850 something, it’s crazy.
Will: It’s a very old Jack Seaver case at this point.
Will: Yeah, I’m with you David. My colleague, Adam Steinbaugh, said as soon as the opinion was issued, something like 8-1, Thomas Jade dissenting. The sweetest words that Brandi Levy could’ve hoped for to start out with. Right? Because that means that he’s doing his old saw again about how students don’t have any rights. And yeah, quoting from that Morris concurrence where he said, quote, “The history of public education suggested the first amendment originally understood does not protect student speech in public schools.” It’s just more of the same. He could have probably run the same opinion here. But you’re right, David, he didn’t.
So, now there may be some kind of glimmer of hope. Right? Plausible arguments. But I won’t speculate as to what those might be. I imagine I wouldn’t like them either. We’ll see. Justice Thomas, as with a lot of the steris prudence, you get the feeling that he’s writing for some government in exile that’ll come in in 40 years and just discover him as the one voice of truth through all these years. He’s writing his own legal history and his own legal reasoning. I give him points for consistency, but it doesn’t make for interesting reading. I think if you read one opinion, you’ve probably read a lot of them, at this point.
So, with all due respect to the justice, didn’t expect to get him, not surprised by it, it is what it is.
David: But at the end of the day, you give me 8-1.
David: I was shocked we got 8-1.
Will: Yeah, that’s right.
David: I mean, what a great victory. I mean, 8 to 1, wow.
Will: That’s a great point, David. Especially given the kind of fracturing we’ve seen in the court in some of these opinions from the April arguments. Where you’ve got these pluralities, or you’ve got these — you got three justices over here, three over here. We’ve had various assortments of justices. So, sitting there on the SCOTUS webpage for the last couple weeks, hitting refresh all the time and seeing all the other opinions that came down, I started to wonder if Mahanoy — maybe one of the reasons it was taking awhile was that the justices were aligned into different camps and we were gonna see kind of a fractured, shattered court with some kind of mess of a plurality to kind of reason forth with now.
We didn’t get the bright line rule that I might’ve liked, but we did get our three features. And one thing we didn’t get, to think about again the kind of bullets dogged, is a mess of an opinion that would’ve said some things over here, some things over here. You could’ve seen that coming potentially from the oral argument. Where some of the justices would’ve said, “When it comes to bullying and harassment, it’s open season. You can regulate student speech writ large.” Or in some of them said, “If there’s no right, Tinker should end at the gate.” Right? You could’ve had a much messier opinion then we did. And so, right on. I’ll take 8-1 all day. All day.
Nico: This is also the first student speech case in which Barrett, Kavanaugh, Gorsuch sat on the court, is this some sort of indication as to how they might rule in future cases?
Will: I don’t know if the opinion gives you that, but the oral argument gave you some of that.
Nico: Oh, that did, yeah.
Will: Yeah, I thought that Justice Barrett’s questions were pretty interesting. And Justice Kavanaugh, thinking just in the wake of his concurrence in the NCAA opinion, he was pretty sensitive to I think what I would call the play of the censored student. He was sympathetic to Brandi Levy and remembered, given his time as a student athlete and also his role in coaching youth sports, what it’s like to be a frustrated student. So, any time you get a justice who’s empathetic with the motivations of the student speaker, I’ll take it. That works for me. But other than that, I don’t know if there’s all that much you can clean here.
Nico: David, any other final takeaways?
David: Not trying to be sycophantic to Will, but the great takeaway is he says it reaffirms the animating spirit of Tinker. I’m gonna borrow that, quote him extensively because I think, at the end of the day, that was awesome. It was awesome that — you read Tinker, it’s like a pile on to student expression. I mean, there’s so many great phrases in there. And for the first time in 50 something years, the Supreme Court went back to that. And that to me is the ultimate point of positivity that emanates from this case is that the pro-speech, pro-student viewpoint expressed in Tinker is back.
Will: Yeah, right on. Yeah, I’m just gonna jump in there, if I may, Nico?
Nico: Go for it.
Will: Sorry. I just first of all just wanna say thank you to David. And I stole that one, David, right out of the writing I did for Fire and the NCAC in the comp of legal defense fund and our amicus brief. And just if I may quote briefly ‘cause I’m proud of it, but also think that that it shows what a good opinion this is. In the conclusion to our introduction of our brief we said, “This court must reaffirm Tinker’s animating concern for student speech rights, not abandon it. Failure to do so will embold in campus sensors. If public grade school administrators may surveil and punish off campus student expression far beyond the schoolhouse gate, a generation of Americans will be taught a corrosive illiberal lesson about the illusory values of their constitutional freedoms. To properly educate tomorrow’s leaders about the power of their first amendment rights and know limits of governmental authority, this court should uphold the third circuit’s decision.” And we got some of that spirit in there, in that opinion. So, I’m right with you. This is a damn good opinion —
Nico: Sounds like the third factor.
Will: Yeah. Well, hey. It’s funny to read the court’s opinion after spending a month of my life hold up here in this house pending our brief for it. So, it’s really gratifying to see some of what I hoped would be in the court’s opinion end up in there.
Nico: Well, I’ll copy that brief into the show notes along with the opinion, the concurrence, and the dissenting opinion. Again, the case we’re discussing today is Mahanoy Area School District v. B.L. Case is decided yesterday on June 23rd. That for being argued on April 28th. It’s a great victory for student rights. And Will and David, I appreciate you both coming onto the show to discuss this. We’re releasing this podcast a little bit early. Steve’s on the news and I hope I’ll have you guys on again very soon.
David: Awesome, thank you so much. Thank you.
Will: Yeah, my pleasure Nico. I look forward to jumping back on with David in a couple months or a couple years when we got — when we see how these three features wind their way to the lower courts. We should do a follow up of this one in a little bit. Thanks so much for having me on.
Nico: Thank you. This podcast is hosted, produced, and recorded by me, Nico Perrino, and edited by Aaron Reese. You can learn more about us at Twitter, twitter.com/freespeechtalk, or by liking us on Facebook at facebook.com/sotospeakpodcast. We take feedback at So To Speak at the fire.org. Please leave us reviews if you enjoyed the show. Reviews are the best way to help us get new listeners to listen to the show. We take reviews on Apple Podcasts, GooglePlay, or pretty much anywhere that you get your podcasts. And until next time, I thank you all again for listening.