# 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:** 22
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [June 25, 2021, 12:39am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/424 "2021-06-25T00:39:01Z")
> [@UltraVires](#): > > The software in the system may not make a Snapchat permanent all by itself, but if you or I see it, and it is provocative or interesting, we can save it with the click of a mouse or a swipe of a phone. Then we have a permanent copy and can send it to others who can make a permanent copy. Can I do that to a note on a piece of paper? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 25, 2021, 12:42am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/425 "2021-06-25T00:42:14Z")
Sure, but it is far less likely and will take far more effort on someone’s part. And it will be more likely perceived that the person who copied it and mass distributed it was the one who wanted it broadcast instead of the person on social media who actually broadcasted it. ETA: Also it seems like a strained hypothetical. Why would a kid write “Fuck Cheer” on a piece of notebook paper and hand it to her friend? ---
**Author:** ![BippityBoppityBoo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bippityboppityboo/32/5745_2.png) [@BippityBoppityBoo](https://boards.straightdope.com/u/BippityBoppityBoo)\ **Post date:** [June 25, 2021, 12:53am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/426 "2021-06-25T00:53:23Z")
Why would a supposed friend screenshot it and show it to school staff? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 25, 2021, 12:58am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/427 "2021-06-25T00:58:03Z")
I think most would agree that there is a difference between a “friend” on social media versus a friend in real life. That sort of highlights the point I am making. It is all but certain in this context that the message will get back to the coach such that one can assume that she intended for it to get to the coach. A lot of posters want to gloss over that by saying that this is just like whispering something to a friend who ends up betraying her, but this is markedly different and I really wouldn’t think I would get push back on that. ---
**Author:** ![BippityBoppityBoo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bippityboppityboo/32/5745_2.png) [@BippityBoppityBoo](https://boards.straightdope.com/u/BippityBoppityBoo)\ **Post date:** [June 25, 2021, 1:01am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/428 "2021-06-25T01:01:06Z")
> [@UltraVires](#): > > I really wouldn’t think I would get push back on that. Consider pushed back on that. ---
**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:** [June 25, 2021, 2:19am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/429 "2021-06-25T02:19:07Z")
Second push back here. ---
**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:** [June 25, 2021, 2:32am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/430 "2021-06-25T02:32:08Z")
> [@UltraVires](#): > > the Third Circuit’s rule wouldn’t allow the school to punish bullying off campus so it had to say that schools could punish bullying but not what this girl did. Eh, if the school had just accepted its loss at trial level, it would have been strictly a district matter and not needed weighting that at the highest level. Yet school authorities insisted in wasting everyone’s time by deciding to die on the _NO, a kid CANNOT get away with that_ hill, over a trifle. One wonders how many times their counsel may have told them, look, this is hopeless, give it up, you risk losing ALL power only for them to say _“We don’t pay you to tell us to give up!”_ OTOH, this does weaken the power of the sort of bullying that takes the form of backstabbing snitchery abetted by the faculty itself. > [@Omniscient](#): > > Schools have lost their goddamned minds when it comes to how involved they get on this stuff. Occupies the same thoughtspace as the Zero Tolerance philosophies. Maintain total control and don’t let anything happen that forces you to make a nuanced decision. ---
**Author:** ![not\_what\_you\_d\_expect](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/not_what_you_d_expect/32/3246_2.png) [@not\_what\_you\_d\_expect](https://boards.straightdope.com/u/not_what_you_d_expect)\ **Post date:** [June 25, 2021, 10:02am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/431 "2021-06-25T10:02:10Z")
> [@UltraVires](#): > > Sure, but it is far less likely and will take far more effort on someone’s part. And it will be more likely perceived that the person who copied it and mass distributed it was the one who wanted it broadcast instead of the person on social media who actually broadcasted it. > > ETA: Also it seems like a strained hypothetical. Why would a kid write “Fuck Cheer” on a piece of notebook paper and **hand it to her friend?** Maybe she didn’t hand it to her friend. Maybe she wrote fuck cheer and then threw the piece of paper in the trash, which the friend then dug out of the trash. I think that’s a closer analogy to snapchat. ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [June 25, 2021, 12:04pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/432 "2021-06-25T12:04:28Z")
> [@UltraVires](#): > > ETA: And my point was that if private companies see fit to do this, why do some say that this school is just being arbitrary or ridiculous when it would do it? Did you know that some private companies do arbitrary and ridiculous things? Do you also agree that a private company should be held to a different standard than a government entity? ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [June 25, 2021, 12:05pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/433 "2021-06-25T12:05:42Z")
> [@UltraVires](#): > > The software in the system may not make a Snapchat permanent all by itself, but if you or I see it, and it is provocative or interesting, we can save it with the click of a mouse or a swipe of a phone If I see you speaking in person, and what you say is “provocative or interesting”, I can save that with a swipe of my phone, too. It gets right back to someone recording you whole you talk. ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [June 25, 2021, 12:06pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/434 "2021-06-25T12:06:48Z")
> [@UltraVires](#): > > And it will be more likely perceived that the person who copied it Another time when your lack of knowledge about Snapchat rears its head. As I mentioned upthread, when you screenshot a snapchat that someone else sent you, that person is notified. ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [June 25, 2021, 12:09pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/435 "2021-06-25T12:09:18Z")
> [@UltraVires](#): > > such that one can assume that she intended for it to get to the coach. Objection! You have absolutely no evidence that she INTENDED for this to get back to the coach- that’s patently ridiculous. ---
**Author:** ![Folacin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/folacin/32/3195_2.png) [@Folacin](https://boards.straightdope.com/u/Folacin)\ **Post date:** [June 25, 2021, 2:32pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/436 "2021-06-25T14:32:15Z")
> [@UltraVires](#): > > such that one can assume that she intended for it to get to the coach. Only if she is an idiot (and since she is a teenager, she may well be). This was venting away from school. Assuming she did it offline and the same ‘friend’ tattled on her, I would certainly not expect the coach to go wrath of god on her - more of a “I know you are disappointed, let’s work on getting your skills up so that next year you do make varsity. And try not to say ‘fuck’.” ---
**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:** [June 25, 2021, 9:45pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/437 "2021-06-25T21:45:39Z")
> [@UltraVires](#): > > If the Court is saying that putting it on social media where everyone will eventually see or here about it is not disrupting the school environment… But the court didn’t say this. The court did not make a general statement that social media posting could not or would not disrupt the school environment. The court argued that, in this particular case, “we can find no evidence in the record of the ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify the school’s action.” In fact, Breyer notes that the record shows that B.L.'s social media comments, and subsequent discussion of those comments at school, caused very little disruption to any school or classroom activities. As in the oral argument, Breyer (and some of the other justices) expressed a fair amount of incredulity that the school had been so petty and draconian in its response to a fairly minor, if vulgar, piece of rhetoric. The _Tinker_ standard requires the court to consider how disruptive the speech was, because the _Tinker_ standard is NOT that schools can regulate ANY speech that might conceivably cause ANY level of disruption. The standard expressed in _Tinker_ is speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” This is precisely why courts need to be sensitive to the facts of each particular case when addressing issues such as this. _Tinker_, as Breyer points out in his opinion, also says that: > [@](#): > > for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. The court did not say that social media posts will NEVER rise to the level of disruption that could satisfy _Tinker_; it simply said that THIS particular social media post did not lead to such disruption. > [@UltraVires](#): > > You can usually tell a poor opinion because it is results oriented. I think the Court saw that the Third Circuit’s rule wouldn’t allow the school to punish bullying off campus so it had to say that schools could punish bullying but not what this girl did. So they fashion a reason that only applies to the girl. This is, quite frankly, ridiculous. Tons of Supreme Court decisions are “results oriented,” even many decisions that purport to be textualist or originalist. If you want to eliminate all results-oriented decisions from the federal court system, then you’re basically saying that courts should never conduct balancing tests to weigh the constitutional costs and benefits of a case. The _Tinker_ standard itself requires an orientation to results, because it affirms that students do not abandon their first amendment rights “at the school house gate,” but it also argues that those rights can be limited or regulated in cases where the speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The very act of applying _Tinker_ involves looking at results, because you have to determine the level of disruption, and this is true with dozens of other tests laid out by the Supreme Court over the years. Just about all of the justices seemed to agree in this case that the rise of social media and other technology for disseminating speech in space and time serves to complicate the previously quite clear demarcation between speech that occurs on campus and speech that occurs off campus. They also seemed to generally agree that a bright-line rule based simply on the location where the speech originated would make for bad law and lead to bad outcomes. The general consensus seemed to be that they needed some sort of balancing test to deal with this complicated issue, and so the job of writing the opinion ended up in the hands of the justice who, perhaps more than any other, loves a balancing test. Will there be cases where the courts do a bad job of assessing and weighing the criteria laid out by Breyer in his opinion? Sure. Will there be cases where it will be very difficult to balance the free speech rights of the student/s with the need for the school to maintain a safe and productive environment for learning? Absolutely. Balancing tests can be messy and unsatisfying at times, but they’re surely better than a simplistic set of checkboxes or whatever other two-dimensional solution you seem to prefer in such cases. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 25, 2021, 11:28pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/438 "2021-06-25T23:28:59Z")
> [@mhendo](#): > > The court did not make a general statement that social media posting could not or would not disrupt the school environment. The court argued that, in this particular case, “we can find no evidence in the record of the ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify the school’s action.” In fact, Breyer notes that the record shows that B.L.'s social media comments, and subsequent discussion of those comments at school, caused very little disruption to any school or classroom activities. As in the oral argument, Breyer (and some of the other justices) expressed a fair amount of incredulity that the school had been so petty and draconian in its response to a fairly minor, if vulgar, piece of rhetoric. First, I think we’ve about played this out as it looks like I’m in the minority (about 8-1 as it would seem 🙂 ). But you did bring up some unique points. We still don’t know what would be a “substantial disruption.” This case had several differences from _Tinker_. The students in _Tinker_ were not profane and made no comments at all about anything having to do with the school or the officials. They were protesting the Vietnam War by wearing armbands. In contrast, B.L. made comments off of school property by using a technology that wasn’t dreamed of in _Tinker_, which could arguably and likely travel onto the school property—arguable because it did–and was directly profane and insulting to her team and her coach. Does any of that make a difference? We don’t know because the Court used the “substantial disruption” language from _Tinker_ which applied to a whole different case and a whole different scenario and just used as bald _ipse dixit_, respectfully much like you did, that this wasn’t substantially disruptive. The school certainly thought it was and I agree. How do we decide under our Constitution? Just wait for judges to tell us? Breyer says, as you quoted, that the school must do more that “avoid the discomfort and unpleasantness” but the school and me has stated that it is much more than the hurt feelings. It is the lack of commitment to the team, that she disrespects the coach and may not be amenable to instruction, and the effect that it will have on other girls who busted their asses just to make the J.V. team. This is dismissed without any analysis. > [@mhendo](#): > > Will there be cases where it will be very difficult to balance the free speech rights of the student/s with the need for the school to maintain a safe and productive environment for learning? Absolutely. The problem with this and all other balancing tests is the scale we use and what it things are measured against. Justice @mhendo believes that this was pretty trivial and therefore the Constitution itself requires that the girl’s interests are better. Justice @UltraVires would balance it the other way. Well, what kind of Constitution is that? It’s not law. If you are just going to have personal opinions and personal values guiding decisions then a school administrator, a legislator, or the first four people off of the street’s judgment is just as good. No reason to relegate that to any court. ETA: Alito also suggested that the coach might bench her which makes the whole think academic. No “suspension” but a “benching.” ---
**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:** [June 26, 2021, 12:28am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/439 "2021-06-26T00:28:51Z")
> [@UltraVires](#): > > Breyer says, as you quoted, that the school must do more that “avoid the discomfort and unpleasantness” but the school and me has stated that it is much more than the hurt feelings. It is the lack of commitment to the team, that she disrespects the coach and may not be amenable to instruction, and the effect that it will have on other girls who busted their asses just to make the J.V. team. This is dismissed without any analysis. The problem is that basically every problem you’ve listed here seems, to me at least, to be nothing more than discomfort and unpleasantness and hurt feelings. You have not listed any substantive effects at all on anyone and, more importantly, the school presented no real evidence of any substantive effects either. Lack of commitment to the team? So fucking what. If she actually demonstrates a lack of commitment in her participation, then deal with that at the time. If she doesn’t show up for practice, or do the other things required of her, then drop her from the team for that. Disrespect for the coach? She never once mentions the coach, or any other individuals. And while I can understand that teenage girls might not like what she has to say, I’m trying to imagine how petty an adult would have to be, how thin-skinned, in order to feel ant substantial effect from her little tirade. “The effect that it will have on other girls who busted their asses just to make the J.V. team”? What effect? If I had just busted my ass and made the J.V. team, why would I care that someone who didn’t make the team blew off a little steam? And if I busted my ass and missed out on the team, then maybe I’d feel exactly the same way as the young woman at the heart of this case. > [@UltraVires](#): > > We still don’t know what would be a “substantial disruption.” This case had several differences from _Tinker_ . The students in _Tinker_ were not profane and made no comments at all about anything having to do with the school or the officials. They were protesting the Vietnam War by wearing armbands. I’m well aware of how Tinker was different. I’ve read the whole case more than once, and I’ve cited it numerous times in this thread. You know how else it was different? The wearing of the armbands occurred on school property. B.L.'s speech did not. Quite frankly, while I think that the court made the right decision and quite a good ruling in this case, I would actually be rather amused if, in an effort to please bright-line, objective-standard obsessives like you, the court had just completely affirmed the whole Third Circuit decision, and said, “Well, the speech occurred off school property and outside of school time, so _Tinker_ is irrelevant and the school has no authority to regulate or punish the student for what she said.” Would you be happy with that? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2021, 12:39am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/440 "2021-06-26T00:39:01Z")
The first part of our post simply highlights our whole disagreement with the nature of this thing and we are likely at an impasse. My objection is that this difference of opinion should not be part of the Constitution. As far as the Third Circuit opinion, I wouldn’t necessarily be “happy” about it, but at least that is rooted in a solid doctrine: that a school only acts to punish when the parents are not available. When the child is off of school property, the parents are there and therefore the school loses its power to punish. And as I have also said, there are good arguments against that, but we would now be arguing _law_ and not opinion about how bad saying “fuck cheer” is or is not. ---
**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:** [June 26, 2021, 12:45am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/441 "2021-06-26T00:45:19Z")
Law is rooted in interpretation, which is often subjective. Your binary distinction between law and opinion is startlingly ignorant, especially coming from someone who says that he’s a lawyer. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 26, 2021, 3:00am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/442 "2021-06-26T03:00:36Z")
> [@Max\_S](#): > > The court does not even mention the fourteenth amendment. Perhaps I’ve missed it in this long thread: what fourteenth amendment issue did you want the Court to address? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 26, 2021, 3:02am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/443 "2021-06-26T03:02:49Z")
> [@Omniscient](#): > > Agreed. I stand by my position that the SCOTUS wasted everyone’s time by agreeing to hear this case. They did nothing at all to clarify the law, instead muddying it. That assumes that when they granted cert., they knew what the briefs would say, what counsel would say in orals, and what they themselves would say. It’s a dynamic process. Maybe those who voted for cert. thought it would be a more clear-cut issue than it turned out to be. We don’t know, and odds are, they don’t know either. [Previous page](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931.md?page=21) [Next page](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931.md?page=23)