According to lawyers for the Mahanoy (PA) Area School District, this is what awaits America if the district loses a case pending before the Supreme Court:
A swollen-eyed student breaks down during English class; her teacher discovers that her classmates are calling her worthless on social media and urging her to kill herself. The science teacher goes on leave after his students create a fake email account that impersonates him and spews invective about other students, prompting outrage from parents…Older students follow a disabled student home and describe sexual acts in such graphic terms that he cannot face returning to school.
This teenage wasteland will inexorably follow a decision that the district lacked the power to punish a high school sophomore who, while hanging out with friends at the Cocoa Hut a mile from campus, uttered into cyberspace the following terrifying words: “Fuck school fuck softball fuck cheer fuck everything.”
The student, known here as B.L., also added a sarcastic comment decrying the injustice that she, a sophomore, had been relegated to the junior varsity cheer squad, while a freshman girl had gone straight to varsity.
These comments were, shall we say, inelegantly phrased. But did Mahanoy Area High totter at this disrespect? Do these two words rise to the level of bullying, fake email harassment, or sexually harassing a disabled student? Do they threaten to disrupt the education of the school’s roughly 300 students?
Why, yes. Yes, they do, according to Lisa Blatt, a high profile Supreme Court litigator, who argued for the school authorities before the Supreme Court last week: “[S]he targeted her coaches, the sport, and another teammate’s ability to play, and the coach recently forecasted someone who berates with a profane gesture and word, all three of those things is not somebody you’d want at the bottom of the pyramid.”
In other words, freedom of speech means you can’t cry “unfair” in a crowded human pyramid.
B.L.’s profanity was posted on Snapchat, a social-media application that shares photographs with a user’s “friends,” and then deletes them 24 hours later. Before it disappeared, though, one of the recipients took a screenshot and showed it around school. Several members of the cheer team went to Nicole Luchetta-Rump, co-advisor of the squad, who recalled that “they were visibly upset, like, ‘can’t you do anything, what are you going to do, have you seen it.’”
Luchetta-Rump, with the backing of school authorities, did what school officials often do when faced with saucy speech by a teen: They punished her. B.L. was suspended from the cheer squad for a year.
The case turns on the meaning of a venerable Supreme Court precedent, Tinker v. Des Moines Independent Community School District, decided in 1969. In Tinker, three students at Iowa public schools wore black armbands to protest against U.S. conduct of the Vietnam War. Warned of the protest, school officials had hastily adopted a rule that forbade armbands. When the students wore their armbands to school anyway, they were suspended.
The court held that punishment a violation of the First Amendment. Justice Abe Fortas wrote for a majority what has become a famous passage:
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech at the schoolhouse gate … In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.
Schools certainly had the power, and the obligation, to maintain school discipline, the majority said. They can punish students for their speech, but only if permitting it would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”
Tinker remains good law. But that case revolved around administrators’ power inside the “schoolhouse gate.” If students don’t shed their First Amendment rights even when physically at school, then what about when they are off campus? The Third Circuit held that “Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.” Snapchat at the Cocoa Hut didn’t meet that test, the court concluded, so B.L. had the same right to say “fuck cheer” as anyone else.
Conservative adult judges tend not to want to hear too much guff from the kids. But a lot of school First Amendment cases these days deal with kids who want to engage in Christian evangelism on campus; other disputes involve speech (including tee-shirts and buttons) about hot-button culture war issues like LGBTQ rights or sexual harassment. Complicating the issue is the rise of social media, which has meant that a lot of what used to take place in the bathrooms or under the bleachers—bullying and threats, for example, or sexual harassment—can now be carried out from the comfort of the Cocoa Hut but can have devastating effects on campus. Some argue that the geographical distinction between the school playground and the Cocoa Hut is meaningless in social media cases.
Not surprisingly, a number of school administration groups, along with some who work on cyberbullying issues, have filed amicus briefs supporting the school district. Amicus briefs supporting B.L. have been filed by religious-right groups like the Alliance Defending Freedom, the Christian Legal Society, and the Life Legal Defense Foundation. Just as the religious right backing Donald Trump was one of the oddities of recent years, so, one might say, is their embrace of the “fuck cheer” case. But in each case, the religious groups have a larger goal of expanding their purview which makes the odious palatable. (One group, the American Center for Law and Justice, tried to split the difference. In an amicus brief by Donald Trump’s impeachment counsel, Jay Sekulow, ACLJ argues that Tinker doesn’t apply off campus—but that B.L. should still lose because “B.L.’s expletive here was simply a crude insult of the sort that aims to incite a hostile reaction” and thus the First Amendment doesn’t apply and she could be punished for saying it anywhere.)
The oral argument, a great listen, shows off three high-profile litigators. Representing B.L. was David Cole, national legal director of the ACLU. He was opposed by Blatt, who has a near-perfect record in 40 Supreme Court appearances. Malcolm Stewart, deputy solicitor general and also a Supreme Court veteran, also argued for the federal government, which filed a brief on behalf of the school.
The Court did not take this case out of concern for the well-being of Golden Bear Cheer. It’s seeking to address a split in the federal appeals circuit. Five of them have held that school administrators may punish off-campus speech using the Tinker standard—that is, if there is something like “reasonable foreseeability” that the speech will reach campus and cause disruption. The Third Circuit, which covers Pennsylvania, Delaware and New Jersey, is the first to hold that authorities lack Tinker-style jurisdiction over off-campus speech entirely.
B.L. and the ACLU don’t argue that schools can never punish off-campus utterances. Cole argued that “outside of the school supervision, the First Amendment governs, and the school has the same authority that the city would have with respect to regulating speech that is not under its supervision.” In other words, he argued, Blatt’s forecast of rampant bullying and harassment is a chimera. Schools can punish off-campus threats, bullying, and sexual harassment if they are aimed at the school or students and are serious enough to “interfere with access to education.”
Blatt and the school district suggested that Tinker should apply off campus “only when the student targeted both the school audience and a school topic.” In addition, Blatt argued, “schools cannot target political and religious speech.” The alternative to their rule, she suggested, was “madness, confusion, and chaos.”
For the federal government, Stewart suggested that Tinker should apply to “school speech in the sense that it focuses on the school as such”; the school would be able to punish that speech if it can “make the showing that the speech is likely to cause substantial disruption of school operations.”
In its practical form, I think, the dispute is this: if Tinker applies off campus, administrators can punish students for anything they say anywhere—unless the student can prove the speech didn’t threaten “substantial disruption.” If the Third Circuit rule applies, the burden will be reversed. Administrators who want to crack down on students for off-campus speech will have to prove that the speech—because, for example, it is a threat, or part of a pattern of bullying, or sexual harassment—is unprotected by the First Amendment.
Justice Brett Kavanaugh, who has been a volunteer youth coach at a local Catholic school for decades, was the only member of the court who seemed interested in B.L. as an individual: “[S]he blew off steam like millions of other kids have when they’re disappointed about being cut from the high school team or not being in the starting lineup or not making all league,” he said. Kavanaugh cited Michael Jordan’s acceptance speech when inducted into the Basketball Hall of Fame, in which the global superstar, then 46 years old, attributed much of his competitive nature to a coach who decades earlier had cut him from a high-school team: “I wanted to make sure you understood—you made a mistake, dude.”
That speech, Kavanaugh said, is
emblematic of how much it means to kids to make a high school team. . . . So maybe what bothers me when I read all this is that it didn’t seem like the punishment was tailored to the offense given what I just said about how important it is and how much it means to the kids. I mean, a year’s suspension from the team just seems excessive to me.
Kavanaugh’s words were an interesting counterpoint to Blatt’s breezy assertion that political speech would be immune from regulation. To begin with, that’s certainly nowhere in the original Tinker opinion; under Tinker’s rule, political speech can be restricted if it will predictably cause disruption. Beyond that, what do we mean by political speech? To teenagers, politics isn’t necessarily about marginal tax rates or the future of the filibuster. Much more important to them is the curriculum, the lead in the school play, the team mascot, and who’s hooking up with whom—and trivial as these concerns may seem, they may begin to seem more important when they shade into racism or sexism in school texts, into sexual harassment in the drama club, into sexual assault by one student against another, or into physical abuse by the wrestling coach. Silencing speech about school itself is roughly equivalent to telling the citizens of Mahanoy City that they can kvetch about the federal government all they want, but better not criticize the Mayor.
Overall, the tone at argument was focused on how bad B.L.’s speech was—was it just sorta bad or, you know, totes bad? No one suggested that free speech, even when vulgar, may actually be as important for teenagers as it is for, say, those who benefit from the Roberts Court’s decisions protecting the rights of corporations and the rich to fund dark-money political ads. To adults, allowing teens to talk about real things may mean what Blatt called “madness, confusion, and chaos.” But could we for a moment imagine a democracy where schools welcome the chance to prepare young people for free speech and active citizenship? Anyone who thinks most public schools take that responsibility seriously isn’t really paying attention.
I confess that school censorship issues affect me the way “Niagara Falls” affected the late, great Moe Howard. When I was 18, just as the Court was deciding Tinker, I committed a very minor defiance of Southern segregated ideology. (My private, all-white school did not lower its American flag when Martin Luther King was killed; on an impulse, I lowered it for them.) The rest of my senior year was a barrage of bullying and threats, coming not from my classmates but from the “adults” entrusted with my education—who, among other things, told me they were going to make sure my college admission was revoked. (It wasn’t.)
Half a century later, the events of April 1968 have not faded in memory. Partly as a result of that experience, my political mantra is Ralph Ingersoll’s motto for the famous 1940s progressive newspaper PM: “We are against people who push other people around.”
Even today, some school administrators sincerely believe the world will end if they can’t control what students can say, on or off campus. But all I can say is that if the cheer squad can’t take a joke, then Fuck cheer.