# 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:** 17
**Author:** ![octopus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/octopus/32/3716_2.png) [@octopus](https://boards.straightdope.com/u/octopus)\ **Post date:** [May 1, 2021, 10:28pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/321 "2021-05-01T22:28:54Z")
And all of that is 100% irrelevant with regards to whether or not a school or any public institution has the right to silence or sanction you for constitutionally protected activities. ETA: It’s also great that some of these institutions aren’t backing off so that the court can finally settle this matter and also establish precedent that all speech codes at public schools and universities are illegal. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [May 1, 2021, 10:49pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/322 "2021-05-01T22:49:11Z")
Y’know, I’ve been thinking, just the other week a bunch of us were smiling at the middle schooler who flipped the bird in a Matt Gaetz school-visit photograph. I suppose **that** can be defended as political protest, yet at the same time it **was** a profane gesture **in** school grounds. I wonder in how much trouble she got. So yeah, let’s not deny it, it’s not in our nature to be coldly neutral. ISTM from some of the posts in this thread, many of us are of the sentiment that the disciplinary action taken – which, again, is about participation in one extracurricular activity, NOT about removal from the school – was not the optimal one in this context, but that yes, there was the scope to apply _some_ level of discipline. The case, however, seems to seek to establish whether under these circumstances there could or could not have been established such a rule of conduct, or a disciplinary action arising from it, _at all._ > [@nelliebly](#): > > I doubt SCOTUS is going to come up with a single bright-line rule for this case. It’s just far too complex. And the justices, as this Vox article noted, appear to be “overwhelmed” and “looking for an off-ramp.” Indeed, thank you. The majority of the Justices likely want to avoid anything that could be spun by someone as "the Court says on Social Media you can just let it _ **all** _ hang out, kid, as long as you say ‘hey, this is me just doing private talking’ ". At the same time neither do most of them want something that could be spun by someone else as “Court says the school owns ya, kid”. But that leaves a nice big middle to work with, so it’ll be interesting seeing what they come up with. ---
**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:** [May 2, 2021, 1:21pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/323 "2021-05-02T13:21:54Z")
By the way, in case anyone thinks that schools using their authority over student’s off-campus and/or online speech is rare, or only happens in areas that directly relate to the actual work and discipline of the school, I highly recommend reading the [amicus curiae brief](http://www.supremecourt.gov/DocketPDF/20/20-255/173442/20210331112352913_20-255%20Brief.pdf) produced by the Foundation for Individual Rights in Education (FIRE) for this case. Here are some of the things that schools have disciplined high school students for: - a tweet criticizing Israel and expressing happiness that a pro-Israeli classmate had unfollowed the student on Twitter - posts showing images of unmasked students cramming school hallways during the COVID pandemic - the creation of a Facebook page specifically for people who disliked or had a bad experience with a particular teacher - posting on Facebook that racists should not be teaching Spanish (without mentioning any specific teacher, or even mentioning a school) - tweeting a quote from the film _Mean Girls_ - a tweet containing swearing, in response to a snow day announcement, along with threats of further punishment if the student did not remove tweets related to the school’s handling of the incident - an Instagram post depicting students drinking what appeared to be alcohol while one was wearing a school sweatshirt (In this case, the New Jersey Department of Education actually overruled the school, deeming the punishment “arbitrary, capricious, and unreasonable,” but this happened more than a year after the student had already served their 30-day suspension.) - a Snapchat image of legally-owned guns, with a comment about being ready for the zombie apocalypse - a picture of students, off campus and out of school, holding guns and noting that they were about to go to a gun range to practice - posting a picture of a toy gun, with an orange plastic cap that explicitly marks it as a toy gun (suspension for a calendar year) - posting a Twitter picture of students wearing black to school to support BLM - posting a picture of students in front of a MAGA sign - posting a picture of dirty yellow water running from a school faucet As the brief notes: > [@](#): > > These examples demonstrate the extent to which protected off-campus student speech and protected online student speech are monitored, investigated, and punished nationwide without justification under Tinker. Indeed, these instances likely represent just a fraction of the actual administrative overreach occurring every year in violation of student First Amendment rights. Many students who face punishment for their protected offcampus or online speech do not have their stories in local or national news outlets; many likely accept the punishment. After all, defending one’s First Amendment rights against government encroachment is challenging for adults, let alone grade school students with legal guardians, limited autonomy and resources, and an eye on graduation. Students in ourschools should not be forced to choose between exercising their expressive rights or staying silent to avoid punishment. ---
**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:** [May 2, 2021, 1:59pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/324 "2021-05-02T13:59:13Z")
And one more thing, while I’m here. 🙂 If you think that the petitioners and their supporters in this case only want to define school speech quite narrowly, and in a way that would not infringe on any really important speech rights, check out this exchange between Elena Kagan and Malcolm Stewart, the Deputy Solicitor General of the United States, who represented the Justice Department on the side of the school district in this case. > [@](#): > > JUSTICE KAGAN: Can I give you a few hypotheticals and you just tell me school speech or not school speech? And let’s just assume that all of these cause substantial disruption. Okay? > > MR. STEWART: Yes. > > JUSTICE KAGAN: Student e-mails his classmates the answer to the geometry homework every day after school? > > MR. STEWART: School – school speech. > > JUSTICE KAGAN: Student e-mails his classmates that they should all skip school tomorrow for an impromptu senior skip day? > > MR. STEWART: School speech. > > JUSTICE KAGAN: Student e-mails that they should refuse to do any work for English class until the teacher changes the syllabus to include more authors of color? > > MR. STEWART: School speech. > > JUSTICE KAGAN: So that can be punishable? > > MR. STEWART: If it – if it causes substantial disruption if the – > > JUSTICE KAGAN: Okay. Student tweets that there’s pervasive homophobia at his school and that prospective gay students should stay away? > > MR. STEWART: That seems like school speech, especially the last part of it, when it – it encourages other people to avoid the school based on this characteristic. > > JUSTICE KAGAN: Last one. Student tweets that his school really stinks and students should stay away? > > MR. STEWART: I think it’s still school speech. It’s a – it’s an assessment of the school as a whole. And as I was saying earlier, the principal point of our school speech prong is to provide a safe harbor for situations where a student engages in very inflammatory off – off-campus speech that has no inherent connection to the school, and we want to say that – the school simply can’t try to make the case that that speech should be regulated because of the spillover effects it would have when school reconvenes. Frankly, I wonder if there’s any type of speech, under the Solicitor General’s definitions, would _ **not** _ qualify as school speech. I’ll be interested to see if this framework laid out by Justice Alito ends up having any weight in the court’s final decision: > [@](#): > > JUSTICE ALITO: Mr. Cole, there is a huge gap between the broad and very important free speech issues that have been briefed and discussed this morning and the particular incident involved in this case. If we’re going to address the broad issues, then I, for one, think we need clear rules that protect freedom of speech. > > On the other hand, if the Court, having decided to take this case, wants to decide it without addressing those broad issues, of course, the Court could dismiss the case, and I assume you wouldn’t have an objection to that. > > But, if the Court doesn’t do that, could the Court do something along these lines: Say Tinker applies in school. It says nothing one way or the other about what a school may or may not do to student speech outside the school. We look at the particular comments made here. They’re made in colorful language, but, substantively, they boil down to something like, I have no respect for the school, I have no respect for the cheer squad, I hate the school, I hate the cheer squad, I also hate my private softball team. > > A school can’t discipline a student for off-campus speech that does no more than say, I hate the school, I have no respect for the school? ---
**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:** [May 2, 2021, 4:20pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/325 "2021-05-02T16:20:41Z")
> [@mhendo](#): > > > [@](#): > > > > After all, defending one’s First Amendment rights against government encroachment is challenging for adults, let alone grade school students with legal guardians, limited autonomy and resources, and an eye on graduation. Students in ourschools should not be forced to choose between exercising their expressive rights or staying silent to avoid punishment. Plus they will be ridiculed over “making a federal case” out of it. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [May 2, 2021, 5:22pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/326 "2021-05-02T17:22:23Z")
> [@UltraVires](#): > > When did “bullying” because something of constitutional importance? The state’s police powers allow it to satisfy even strict scrutiny for bullying, harassment, assault, theft, etc. > [@UltraVires](#): > > It seems like you are basing the “in school/out of school” distinction based on your own value judgments. You are mistaken. I clearly opined that if the school bans social media usage in school, that social media speech is not school speech. I think there are situations where the state can discipline students for out of school social media posts. This is not a contradiction. ~Max ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 2, 2021, 6:42pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/327 "2021-05-02T18:42:06Z")
> [@mhendo](#): > > Frankly, I wonder if there’s any type of speech, under the Solicitor General’s definitions, would _ **not** _ qualify as school speech. But the important proviso underscoring all of these examples is that the speech must cause a substantial disruption to the school’s mission. I don’t doubt that in many of the examples in the amicus briefs that some school administrators abuse their position and punish students simply because they don’t like the speech, and in those cases, I have no problem with the student suing. However, the administrators should be given some deference. They are in the position at their schools to know what causes disruption. What might cause a disruption at a rural conservative high school is different than what might cause a disruption in an urban elementary school. I also see school as a teaching moment for these children so that they learn to express their disagreements in an appropriate manner. What seems to be lost in this debate is that these are not adults with the full panoply of rights, and are still maturing, and part of the mission of the school is to help in the maturation process. ---
**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:** [May 2, 2021, 7:13pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/328 "2021-05-02T19:13:23Z")
> [@UltraVires](#): > > **But the important proviso underscoring all of these examples is that the speech must cause a substantial disruption to the school’s mission.** I don’t doubt that in many of the examples in the amicus briefs that some school administrators abuse their position and punish students simply because they don’t like the speech, and in those cases, I have no problem with the student suing. > > However, the administrators should be given some deference. They are in the position at their schools to know what causes disruption. **What might cause a disruption at a rural conservative high school is different than what might cause a disruption in an urban elementary school.** > > I also see school as a teaching moment for these children so that they learn to express their disagreements in an appropriate manner. What seems to be lost in this debate is that these are not adults with the full panoply of rights, and are still maturing, and part of the mission of the school is to help in the maturation process. First you say “must cause a substantial disruption” then you pivot to “might cause a disruption”; which is actionable: _did_ or _might_? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 2, 2021, 7:21pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/329 "2021-05-02T19:21:37Z")
"But conduct by the student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.: Tinker. Although in many other parts of the opinion it uses different phraseology. ---
**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:** [May 2, 2021, 7:43pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/330 "2021-05-02T19:43:27Z")
So there has to be disorder; a disruption must have occurred? “Might” isn’t actionable? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 2, 2021, 7:51pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/331 "2021-05-02T19:51:31Z")
> **[Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)](https://supreme.justia.com/cases/federal/us/393/503/)** > > Tinker v. Des Moines Sch. Dist.: Since First Amendment protections extend to students in public schools, educational authorities who want to censor speech will need to show that permitting the speech would significantly interfere with the discipline... Here’s the case. I don’t read it that literally. I think if the school shows that it might materially disrupt the school’s mission, then it can forbid the speech. But that just raises the question of what qualifies as a material disruption. Must it be a full blown riot to qualify? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [May 3, 2021, 2:54pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/332 "2021-05-03T14:54:04Z")
> [@mhendo](#): > > …Malcolm Stewart, the Deputy Solicitor General of the United States, who represented the Justice Department on the side of the school district in this case. I’m surprised the US DOJ would jump into this case. (And disappointed that they came in on the wrong side). ---
**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:** [May 3, 2021, 3:15pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/333 "2021-05-03T15:15:13Z")
Unfortunately, if you follow enough Constitutional cases, one things becomes pretty clear after a while: the government nearly always steps in on the side of more government power. This is true of Republican and Democratic Justice Departments, state Attorneys General, and all sorts of other government bodies. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [May 3, 2021, 4:16pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/334 "2021-05-03T16:16:04Z")
> [@UltraVires](#): > > But that just raises the question of what qualifies as a material disruption. Must it be a full blown riot to qualify? Isn’t that a question for _jurors_ to decide? ~Max ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [May 3, 2021, 5:34pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/335 "2021-05-03T17:34:01Z")
> [@Procrustus](#): > > I’m surprised the US DOJ would jump into this case. I wonder how often OSG seeks to participate in “true” constitutional interpretation cases (that they are not otherwise involved in). I imagine it’s pretty common. Although, the application of the First Amendment to public schools less obviously implicates the federal executive than, say, constitutional issues in the criminal law. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [May 3, 2021, 5:47pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/336 "2021-05-03T17:47:23Z")
> [@Falchion](#): > > I wonder how often OSG seeks to participate in “true” constitutional interpretation cases (that they are not otherwise involved in). I imagine it’s pretty common Rather than merely speculate, I looked at [this list](https://www.scotusblog.com/case-files/terms/ot2019/) of cases from OT 2019. I counted seven cases with clear constitutional interpretation issues and no federal party. The SG sought to argue in four of them (Kahler, Glover, Russo, and Morrisey-Berru) and did not appear to seek to argue in three (Ramos, McKinney, and Chiafalo). ---
**Author:** ![octopus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/octopus/32/3716_2.png) [@octopus](https://boards.straightdope.com/u/octopus)\ **Post date:** [May 3, 2021, 5:48pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/337 "2021-05-03T17:48:47Z")
That leads to the Heckler’s veto being even more powerful. The less attention paid to outraged or potentially outraged mobs the less power those mobs have. So-called school disruption is so vague and subjective a standard that it should not have relevance over what someone says outside of school. Petty tyrants are still tyrants. ---
**Author:** ![Kyrie\_Eleison](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kyrie_eleison/32/7682_2.png) [@Kyrie\_Eleison](https://boards.straightdope.com/u/Kyrie_Eleison)\ **Post date:** [May 3, 2021, 7:29pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/338 "2021-05-03T19:29:01Z")
> [@mhendo](#): > > Actually, one of the most interesting consequences of the shift to telephonic arguments during the pandemic is that Thomas has been very involved over the past year. Enough so to merit a [front-page NY Times article](https://www.nytimes.com/2021/05/03/us/politics/clarence-thomas-supreme-court.html) about that very subject today (ob warning: paywall). ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [June 23, 2021, 2:46pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/341 "2021-06-23T14:46:18Z")
And she wins. I haven’t seen the opinion yet, but I thought I’d bump this thread and we can soon discuss. > **[Supreme Court sides with high school cheerleader who cursed online | CNN...](https://www.cnn.com/2021/06/23/politics/supreme-court-first-amendment-cheerleader/index.html)** > > The Supreme Court ruled in favor of a former high school cheerleader who argued that she could not be punished by her public school for posting a profanity-laced caption on Snapchat when she was off school grounds. ---
**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:** [June 23, 2021, 2:58pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/342 "2021-06-23T14:58:09Z")
It’ll be interesting to see their reasoning–but as a teacher and a parent and a citizen, I’m real happy to see the courts siding with her. [Previous page](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931.md?page=16) [Next page](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931.md?page=18)