# High School Student "Free Speech" Case Before SCOTUS **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [April 28, 2021, 3:07pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931 "2021-04-28T15:07:41Z")\ **Posts on this page:** 20\ **Page:** 14
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [April 30, 2021, 11:31am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/261 "2021-04-30T11:31:26Z")
Proposed bright-line rule for regulating speech: was the student using any school resources whatsoever in making or disseminating the speech? A student standing on campus, or using a school-issued device, or on school wifi, or using a school-issued hotspot, or using a school account, is implicating the government in her speech. Just as your speech may be curtailed in a courthouse or a school or a legislative building, it may be curtailed here in order to prevent impeding government functions. But if the speech occurs without government resources, it’s not the school’s business. I like having a bright-line rule like this, but I’m uncomfortable with how it’d intersect with bullying or off-campus sexual harassment or the like. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 30, 2021, 12:26pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/262 "2021-04-30T12:26:54Z")
> [@Left\_Hand\_of\_Dorkness](#): > > But if the speech occurs without government resources, it’s not the school’s business. IMHO, that makes little sense. Suppose the school provided Chromebooks for use at home. The girl posts the exact same thing on her school provided Chromebook. The disruption is the same. Some posters think that this is no disruption at all and others think it is. Why is the specific device she used relevant to the analysis? Why is it different if the student runs a foot off of school property and yells at the coach that he is a motherfucker? ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [April 30, 2021, 12:39pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/263 "2021-04-30T12:39:24Z")
> [@UltraVires](#): > > I thought the rest of your analysis was excellent, but don’t understand this. A student speaking for or against gun control or gun ownership is the quintessential example of non-school related speech. Much like if he attended an abortion rally (for or against) or a gay or transgendered rights rally (for or against). The school is there to teach facts, not opinions, and the kid’s outside of school speech is not punishable or relevant to the in school environment. > [@UltraVires](#): > > If I stand up in geography class while the teacher is explaining how the Dakotas were formed and I scream “Trump 2024!” or “McDonalds sucks!” or “I believe Brexit was a poor choice” or “vanilla is a better choice of ice cream than chocolate” he can tell me to sit down and shut up. And if I post that during class on social media, the unanimous opinion seems to be that the teacher can stop me. But if I post it after school and it has the same effect on class, you would say that the teacher is powerless to stop that disruption. I think that is a silly distinction that has no real world meaning. > [@UltraVires](#): > > Again, the “outside of school” has little distinction in the social media context. You would agree that a school could punish a student for saying “Fuck you, Mr. Jones” in class. You would agree that a school could punish a student for emailing to Mr. Jones, “Fuck you, Mr. Jones” while sitting in class. Why is it different if he sends an email to Mr. Jones saying “Fuck you, Mr. Jones” the night before class from his home? You’re going to have to explain to me exactly what the hell you’re arguing here, because these paragraphs seem in tension with one another. In the first, you take an absolute position that a student’s out-of-school speech on a matter of general politics or social issues is not relevant to the school, and therefore cannot be punished by the school. But then, in the subsequent paragraphs, you take the position that social media effectively eliminates the in-school/out-of-school distinction, and that the location issue has “no real world meaning” when everyone is able to see what we post online. But if a teacher can prevent me from saying something on campus because the content of my speech is likely to disrupt school activities, and if social media means that the in-school/out-of-school distinction has “no real world meaning,” then why can’t the school prevent me from publicly taking a whole variety of social or political positions on social media, even when I’m not in school? If what I say on social media is likely to affect students and cause disruption in the school, then Tinker theoretically allows the school to sanction me for social media posts that might cause such disruption. Which is exactly the point that Eugene Volokh was making. Let’s tweak the example you give, using your own opinions: > [@UltraVires](#): > > If I was a young girl that just made the JV cheer team, I would want teammates that supported the team, not one that flipped off the coach on social media. This isn’t an outside issue like the Vietnam War that we can agree to disagree with outside of school. This is the team that you said “fuck” about. I don’t want to be your teammate. It directly affects the team. If I was a young black student on campus, I would want schoolmates and fellow students who supported me as a human being and an equal, and who did not believe that I was inferior by virtue of my race. I wouldn’t want fellow students who support the white nationalist movement. But these guys from my class posted social media pictures of themselves attending a white nationalist rally on the weekend. This is the school community that they are affecting with their posts. I don’t want to be their classmate. It directly affects the class and the school. I suggest that a situation like this would arguably have a greater negative impact on school harmony and discipline than a student saying “Fuck cheer.” Do you think that the school should be able to punish the students for posting social media pictures of their attendance at a white nationalist rally? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 30, 2021, 1:11pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/264 "2021-04-30T13:11:00Z")
> [@mhendo](#): > > I suggest that a situation like this would arguably have a greater negative impact on school harmony and discipline than a student saying “Fuck cheer.” Do you think that the school should be able to punish the students for posting social media pictures of their attendance at a white nationalist rally? This is definitely an area where hard facts can make bad law. To expound on your point, we can go very broadly and say that anything can affect the school environment. If the kid attends an anti-abortion rally wearing an “Abortion is Murder” shirt, then some girl in his class that had an abortion might feel the same way about him: he thinks I am a murderer, so I don’t want to be in class with him. Or a kid who attends a Green New Deal rally has a fellow classmate whose father is a coal miner. Or a kid attends an LGBTQ rally and another classmate is a fire and brimstone Baptist. The list is endless. You could even argue that a kid’s parent’s belief on things would cause a school issue. Obviously another kid saying I am inferior because of my race is an odious and larger issue. But to protect the balance of school regulation and free speech, the school must only regulate school issues. The coach and the team are school issues. If the kid treats blacks differently at school, then that is a school issue. It is a difficult distinction, but one that must be made unless the school is to acquire plenary power over everyone. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [April 30, 2021, 1:30pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/265 "2021-04-30T13:30:51Z")
> [@UltraVires](#): > > Why is it different if he sends an email to Mr. Jones saying “Fuck you, Mr. Jones” the night before class from his home? If that is what she did, then that is potentially disciplinable, it was actually _to_ Mr Jones. But that isn’t what she did. If a student says to their friends, “Fuck Calculus” after failing their test, do you believe that they should be removed from math class? > [@UltraVires](#): > > But when the child purposely directs something at the school during her off time, knowing that the school officials are likely to hear about it, then the place she posts the comment makes little difference and little sense, IMHO. So, your argument is irrelevant, as it was not purposely directed at the school, she did not know that school officials would hear about it. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [April 30, 2021, 1:33pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/266 "2021-04-30T13:33:10Z")
> [@Thing.Fish](#): > > What I find worthy of ridicule is that the adults on both side of this case thought it was worthwhile to _literally_ make a Federal case out of a dispute about membership on the cheer squad. Only one side made a federal case out of it. She only made a local case out of it. It is the school that escalated it when they didn’t get the judgement that they wanted. Do you think that she should have given up when she learned that the school was going to appeal? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [April 30, 2021, 1:41pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/267 "2021-04-30T13:41:25Z")
> [@UltraVires](#): > > Again, the “outside of school” has little distinction in the social media context. I get that you and the school want that to be true, but it isn’t. > [@UltraVires](#): > > You would agree that a school could punish a student for saying “Fuck you, Mr. Jones” in class. You would agree that a school could punish a student for emailing to Mr. Jones, “Fuck you, Mr. Jones” while sitting in class. Why is it different if he sends an email to Mr. Jones saying “Fuck you, Mr. Jones” the night before class from his home? Because the student crossed the threshold by sending the email to Mr. Jones, IMO. In the actual case under discussion, the threshold was crossed by a third party. > [@UltraVires](#): > > I agree with your general proposition that what the child does outside of school hours is no longer subject to school discipline, but parental discipline. But when the child purposely directs something at the school during her off time, knowing that the school officials are likely to hear about it, then the place she posts the comment makes little difference and little sense, IMHO. Wow; you sure know a lot about her intentions. 🙄 ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 30, 2021, 1:41pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/268 "2021-04-30T13:41:57Z")
> [@k9bfriender](#): > > f that is what she did, then that is potentially disciplinable, it was actually _to_ Mr Jones. But that isn’t what she did. > > If a student says to their friends, “Fuck Calculus” after failing their test, do you believe that they should be removed from math class? I repeat myself, but there is something qualitatively different between, in a moment of haste, me going over to a buddy’s house and having six beers and saying “Fuck Dave Jones. He is an asshole” and me purposely posting a picture flipping Dave Jones off with a caption that he can go get fucked, with an audience of _two hundred and fifty_ people knowing that many of those people know Dave and will tell him about it. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [April 30, 2021, 1:45pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/269 "2021-04-30T13:45:21Z")
_Potential_ audience of 250, maybe. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [April 30, 2021, 1:46pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/270 "2021-04-30T13:46:59Z")
> [@UltraVires](#): > > I repeat myself, but there is something qualitatively different between, in a moment of haste, me going over to a buddy’s house and having six beers and saying “Fuck Dave Jones. He is an asshole” and me purposely posting a picture flipping Dave Jones off with a caption that he can go get fucked, with an audience of _two hundred and fifty_ people knowing that many of those people know Dave and will tell him about it. What if you say it in a bar, where you know you might be overheard but Dave’s not there, but some asshole secretly records your saying it and sends the video to Dave? ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [April 30, 2021, 1:59pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/271 "2021-04-30T13:59:17Z")
> [@mhendo](#): > > Volokh expresses hope that the court will, in its decision in this case, deal with the heckler’s veto question that afflicts school speech jurisprudence. He seems to think that this is at least as important as the in-school vs out-of-school distinction that is so important to the case. This is a more difficult point, and one that is hard to paint a bright line. What is the current standard for disruption? Is it some sort of “reasonable person” test? Is it up to whether the administration believes it has a high likelihood of causing disruption? Personally I think the in-school v. out-of-school distinction is rendered meaningless by technology. I can step out for lunch, send a group message to everybody on campus, and then come right back to campus. That is clearly an “on-school” disruption even though when I made the statement I was off campus. The venue for the _receiver_ of the message should matter too. In this case I think I’d like to see SCOTUS point out that off-campus messages that can be received/read on-campus are still within the purview of the school, but in this particular case the content of the message was not nearly disruptive enough to warrant administrative action. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [April 30, 2021, 2:14pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/272 "2021-04-30T14:14:49Z")
In the day of snapchat, a post can be made to 250 people in a moment of haste. There is essentially no difference on your part between going to your buddy’s and bitching about Dave and bitching about Dave on snapchat. The only difference is that someone has to purposely record your bitching in order for it to get back to Dave, while on snapchat, someone can more easily breach your privacy and trust with a screenshot. I do get that you are repeating yourself, but you are doing so with the same non-compelling argument and irrelevant examples, so repeating it is actually not advancing your position at all. I do ask, again, since you have repeated yourself with irrelevant examples rather than answering, if someone fails their math test, and they post “Fuck Calculus” to their group of snapchat friends, should they be kicked out of their math class? ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [April 30, 2021, 2:16pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/273 "2021-04-30T14:16:10Z")
> [@Jas09](#): > > I can step out for lunch, send a group message to everybody on campus, and then come right back to campus. That is clearly an “on-school” disruption even though when I made the statement I was off campus. The venue for the _receiver_ of the message should matter too. And that’s why I would agree that that line should be erased, but the other way around. It shouldn’t matter where it was posted, it should only matter who it was directed _at_. If someone posts to their friends to bitch about some school policy or decision, then it shouldn’t matter when it was sent, that should be fine, even if they use foul language. If someone sends a message _to_ an administrator, then that is a different story. If someone sends something _to_ another student that is bullying or hateful, then that shouldn’t be allowed, whether on or off school property, as that’s harassment, and is already illegal. > [@Jas09](#): > > In this case I think I’d like to see SCOTUS point out that off-campus messages that can be received/read on-campus are still within the purview of the school So, everything on any social media is within the purview of the school? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 30, 2021, 2:19pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/274 "2021-04-30T14:19:00Z")
> [@k9bfriender](#): > > I do get that you are repeating yourself, but you are doing so with the same non-compelling argument and irrelevant examples, so repeating it is actually not advancing your position at all. I don’t know what else to do but agree to disagree. People are responsible for what they do, and if I make a stupid comment to my buddy, I think it won’t leave the room. If I click “Send” to 250 people, I am all but assured it will. In a single moment of haste, I should think about that. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 30, 2021, 2:22pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/275 "2021-04-30T14:22:27Z")
> [@k9bfriender](#): > > And that’s why I would agree that that line should be erased, but the other way around. It shouldn’t matter where it was posted, it should only matter who it was directed _at_ . Under this proposition, I could send a email to the coach’s wife and kids, and then be safe in the idea that I didn’t send it to him. Did this girl think that none of her 250 “friends” would send it to the coach? I’m sure she did. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [April 30, 2021, 2:23pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/276 "2021-04-30T14:23:53Z")
> [@UltraVires](#): > > People are responsible for what they do, and if I make a stupid comment to my buddy, I think it won’t leave the room. And what if you are wrong? If someone records your comments, and sends them to Dave, do you think that you should be responsible for what you have done? But as long as Dave never finds out, you are off the hook? If no one had chosen to break this girl’s trust and forward this message on to the coach, does that actually change what she did? (Keep in mind that Nebraska is a single party consent state, so you should know that anything you say to your friend can get back to Dave.) ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [April 30, 2021, 2:24pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/277 "2021-04-30T14:24:19Z")
You certainly do claim to know an awful lot of what this young lady was thinking and intended, **UV**. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [April 30, 2021, 2:25pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/278 "2021-04-30T14:25:59Z")
> [@UltraVires](#): > > I could send a email to the coach’s wife and kids, and then be safe in the idea that I didn’t send it to him. You do not see any substantial difference between sending something to your friends, and the family of someone else? 🤨 The first is venting, the second is harassment. > [@UltraVires](#): > > Did this girl think that none of her 250 “friends” would send it to the coach? I’m sure she did. You are sure she did? You know this, how? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 30, 2021, 2:32pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/279 "2021-04-30T14:32:10Z")
> [@k9bfriender](#): > > You do not see any substantial difference between sending something to your friends, and the family of someone else? 🤨 The first is venting, the second is harassment. I was going by your rule. You said it had to be directed to the person. You modified that by including the person’s family. What now about the person’s friends? The same friends who are likely to be your friends on Snapchat. It’s the same thing. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [April 30, 2021, 2:42pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/280 "2021-04-30T14:42:14Z")
> [@k9bfriender](#): > > It shouldn’t matter where it was posted, it should only matter who it was directed _at_ . > [@k9bfriender](#): > > So, everything on any social media is within the purview of the school? Yes, but within the constraint you identified. What should matter is whether the comment was directed at the school, a student, faculty, or some specific school function (basically what the Solicitor General laid out). And I agree (I think) with @mhendo that the standard for “disruption” should be rather high. In this case I believe that the speech is allowed to be considered by the school, since the target of the speech is a function of the school. However, I do not believe it meets the standard of disruption that should warrant action by the school. “Fuck cheer” is not a threat, and it is a statement that a reasonable adult would consider a blowing off of steam by a frustrated child. [Previous page](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931.md?page=13) [Next page](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931.md?page=15)