# 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:** 7\ **Page:** 23
**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, 1:14pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/444 "2021-06-26T13:14:15Z")
> [@Northern\_Piper](#): > > Perhaps I’ve missed it in this long thread: what fourteenth amendment issue did you want the Court to address? This case is about a person’s constitutional rights being restricted by a state or local authority. When the Constitution and the Bill of Rights were originally ratified, they protected individual rights only against the power of the federal government (“Congress shall make no law…”). States could, and sometimes did, restrict or regulate rights that were listed in the Bill of Rights. The Fourteenth Amendment explicitly bound states to respect the “privileges and immunities” of all American citizens, and to provide citizens with “due process” and “equal protection.” Over the past 150 years, the Supreme Court has, in a series of decisions, gradually built up a doctrine of “incorporation,” arguing that the Fourteenth Amendment means that (most of) the rights listed in the Bill of Rights are now protected not just against federal government action, but against the actions of state and local governments as well. The most recent incorporation was the excessive fines clause of the 8th Amendment, incorporated just a couple of years ago in _Timbs v. Indiana_. Along with this, there is a legal argument made by some scholars and jurists that, in any case where the federal courts are dealing with state actors and constitutional rights, the courts should look not only to the original meaning of the rights themselves, as understood at the time the Bill of Rights was framed, but should also look to how these rights were understood in the United States at the time that the 14th Amendment was ratified. This is a sort of two-stage originalism. There are differing arguments among scholars and jurists about exactly how important it is, and exactly how it should work. We can see this sort of idea at work in Clarence Thomas’s dissent in this case, where he basically goes straight to the 14th Amendment and its time period to understand how to deal with school authority. Here’s a taste of his argument: > [@](#): > > While the majority entirely ignores the relevant history, I would begin the assessment of the scope of free-speech rights incorporated against the States by looking to “what ‘ordinary citizens’ at the time of [the Fourteenth Amendment’s] ratification would have understood” the right to encompass. McDonald v. Chicago, 561 U. S. 742, 813 (2010) (THOMAS, J., concurring in part and concurring in judgment). Cases and treatises from that era reveal that public schools retained substantial authority to discipline students. As I have previously explained, that authority was near plenary while students were at school. See Morse v. Frederick, 551 U. S. 393, 419 (2007) (concurring opinion). Authority also extended to when students were traveling to or from school. See, e.g., Lander v. Seaver, 32 Vt. 114, 120 (1859). And, although schools had less authority after a student returned home, it was well settled that they still could discipline students for off-campus speech or conduct that had a proximate tendency to harm the school environment. > > p. 2 of the dissent Basically, his position is that schools allegedly had a substantial amount of off-campus authority over students at the time that the 14th Amendment made states responsible for protecting their citizens’ constitutional rights, and that Americans at that time would have understood such authority to be appropriate, and not a violation of students’ rights. Therefore, schools should still have such authority over students’ off-campus speech now. ---
**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 26, 2021, 6:25pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/445 "2021-06-26T18:25:36Z")
> [@mhendo](#): > > Basically, his position is that schools allegedly had a substantial amount of off-campus authority over students at the time that the 14th Amendment made states responsible for protecting their citizens’ constitutional rights, and that Americans at that time would have understood such authority to be appropriate, and not a violation of students’ rights. Therefore, schools should still have such authority over students’ off-campus speech now But that’s why we needed the 14th amendment, to keep states from doing things that everyone thought were fine, since states weren’t bound by first amendment concerns. They are now. What authority was appropriate when free speech rights didn’t come into play might not be appropriate when they do. ---
**Author:** ![ALOHA\_HATER](https://avatars.discourse-cdn.com/v4/letter/a/76d3ee/32.png) [@ALOHA\_HATER](https://boards.straightdope.com/u/ALOHA_HATER)\ **Post date:** [June 27, 2021, 9:11am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/446 "2021-06-27T09:11:02Z")
Jesus, what kind of platinum-coated insurance plan includes lawyers to push a boulder of bullshit all the way up the hill? ---
**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 27, 2021, 4:17pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/447 "2021-06-27T16:17:35Z")
The kind whose managers know that if they end up paying out, they’ll be able to sock the district for a rise in premiums afterwards? That is also something the district should have been thinking of when they insisted that Og forbid people see _the authorities backing down_ before a _teenaged cheerleader_. ---
**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:** [June 27, 2021, 11:15pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/448 "2021-06-27T23:15:49Z")
B.L. relied upon § 1983 in her lawsuit, which allows her to sue for deprivation of “rights, privileges, or immunities secured by the Constitution and laws”. The First Amendment on its own does not provide any right, privilege, or immunity against State actions. The legal theory by which the Constitution protects an individual’s right to freedom of speech from State infringement depends on the Fourteenth Amendment’s due process clause. (If you are named Max\_S or Justice Clarence Thomas, it instead depends on the Fourteenth Amendment’s privileges or immunities clause.) In [post #173](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/176) I argued that neither clause of the Fourteenth Amendment applies to this specific case and opined that the suit should be thrown out - that B.L.'s rights were not affected by the school’s actions and she has no grounds to sue. ~Max ---
**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 28, 2021, 12:16am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/449 "2021-06-28T00:16:12Z")
> [@Procrustus](#): > > But that’s why we needed the 14th amendment… You don’t have to convince me. I was simply explaining how people like Clarence Thomas think about the issue. ---
**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 28, 2021, 2:22pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/450 "2021-06-28T14:22:36Z")
> [@mhendo](#): > > You don’t have to convince me. I understand. I didn’t make it clear my beef is with Justice Thomas, not you. [Previous page](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931.md?page=22)