But they should be for defenses of a person’s civil liberties.
When my youngest was in middle school, they participated in Day of Silence. The way they chose to participate was putting duct tape over their mouth. They were asked to remove it, which they refused to do. They were given lunch detention, which means they missed out on a lunch given to honor the students that had been the fifth grade orientation leaders. And then they called me.
They explained to me what happened and I said “that doesn’t sound comfortable but I don’t see what the issue is.” Then the hall monitor who was responsible for this call explained that my kid had been given detention. (I did not know my kid was in the room and I was on speaker phone) to which I said “so you are calling to tell me you violated my child’s civil rights? I need you to apologize to my kid right now.” She didn’t, and it escalated to the principal - and to my attorney. When my attorney got involved (and the principal looked up Tinker after the attorney pointed out that this type of speech was explicitly permitted), we got our apology.
And yes, I would have sued.
Protecting our civil rights is the most important thing we can do. Teaching our kids about their civil rights ranks right up there.
(Three weeks later they graduated from middle school in a ceremony with a dress code that included “no spaghetti straps for girls” - my husband took care of that one. The school immediately backed down - just for our kid.)
Actually, no. My daughter is on a JV cheer team. It is a squad; it goes to competitions as a squad. Yes, it is the “B” team, but it is still a team. Yes, a punishment could be to sit her, but as the entire team has to learn the routine, stunt groups set up, etc., it is much much more a punishment to the entire team than the individual girl.
Yeah, I may be nit-picking here, but JV is not just the “end of the bench”. A lot of programs in a lot of sports will intentionally leave good athletes on JV so that they gain experience and get competition time rather than sitting on the Varsity bench (or, for cheerleading, as the varsity alternate).
BTW - my daughter felt a lot of the same things the girl in question did when she didn’t make the Varsity team her Senior year; she just didn’t broadcast it to the world. She told her family and good friends; had a cry; got back to Cheer because she really enjoys it.
I think this gets to the heart of your disagreement with this ruling and your siding with the school. It appears that you simply cannot accept that a social media communication like this can be considered private. To you, saying something on social media is essentially the equivalent of saying it at school. Multiple courts (and many posers in this thread) have disagreed and explained why.
“Social media” does not equal “everywhere,” does not necessarily equal “public,” and does not equal “at school.” If you can begin to grok that, you’ll have a better grasp of why this case has been decided for the student over and over again.
Neither did the girl in this case. She just told it to people she considered to be friends, all of whom would have 24 hours to read it before it disappeared. It was the daughter of a cheer coach who then took a photo of that message and shared it with her mom, who then shared it with the rest of the school.
So what we have here is the equivalent of someone who your daughter trusted recording what she said, and then tattling to the people in charge. The only difference is people now tend to communicate online and not just in person.
This was not a public conversation. This type of social media is not public. It is specifically designed where only those you trust get to read it. The issue seems to be that the student in this case trusted people she shouldn’t have, who then tried deliberately to get her in trouble for it, and succeeded.
Given that they didn’t actually win any money (just attorney’s fees), it seems the reason for this suit was to get precedent that schools don’t get to do this. They don’t get to police criticism of the school simply because the student wrote it online to her friends.
I have avoided commenting too much on the case due to not having read the ruling. I’ve personally found that my understanding and memory of the dry legal language is aided by having the decision read to me, pausing to clarify occasionally, and to highlight the important parts. That is what Leonard French does:
He actually takes time to explain why the Supreme Court tends to rule narrowly. They don’t want to guess about the facts of other cases that have not yet been presented to it. That seems to be the reason for avoiding enumerating examples of when it is appropriate to regulate off-campus speech, and instead offer up general guidelines.
As for the actual case itself, it appears that the issue bends on three parts.
The school may have a reason to prevent vulgarity during school time, but not outside of it. They cite two bits of precedence saying that the rules are different in those cases, and point out that the school did not normally regulate their students using vulgarity online outside of school hours.
Speech does not count as disruptive simply because people don’t like the contents of the speech. It must have some other effect to count for purposes of Tinker.
Her speech was criticism of something she participated in, which is the core of the purpose of protecting speech. Schools should be at the forefront of teaching " I disapprove of what you say , but I will defend to the death your right to say it."
The whole thing comes off like the school thinks they get to punish students for criticizing the school, if they do so while mentioning some extra curricular activity. They can’t even argue that it hurt the school’s reputation, as she never mentioned which schools she was talking about—only those who knew her (i.e. her friends on Snapchat) would know.
It seems some teachers got upset that a student would dare criticize their programs with vulgar language It comes across as “you say fuck cheer? Well fuck you! I’ll make sure you regret it!” That’s not the way school faculty should act. They should defend the student’s right to criticize them, and teach the students that, even if they don’t like what she said, she has a right to say it.
A school acts “in loco parentis” even if the student is off campus, specifically getting to and from school. That does not apply to this case but shows that the school’s responsibility does not end at the sidewalk in front of the school.
Neither is sending pictures to your boyfriend / girlfriend, but we all know that there’s a great chance of them getting around. There’s a reason it’s called “social media” and not “private media”.
I believe the cheer team had a right to discipline the girl. I don’t think the coach handled it well. I am annoyed that the girl sued; I am extremely annoyed that the school district kept appealing the ruling. How many tax-payer dollars went to lawyers licensed to appear before the Supreme Court?
ETA - how many braincells have been ruined in this conversation alone?
Almost none. The school’s insurance paid for their legal fees and the ACLU paid for the suit.
I find it deplorable that people in this day and age continue to attack and disparage people who opt to defend their civil rights. We literally had almost a year of civil unrest over people looking the other way on local government entities trampling people’s civil rights. It’s the same fucking thing even if you think cheerleaders are stupid and her rights are not important.
And even if the taxpayers funded the defense, then the taxpayers should have said “enough” after the first case. The district had to decide to appeal each time.
I live in a city where about fifteen years ago our city council made a bunch of stupid decisions that involved the city losing its municipal insurance. We voted out those ass clowns, and the new city council managed to get our insurance reinstated by saying “we have had a complete turnover in councilmembers.”
I understand the need to rule narrowly sometimes. I’m not upset about a narrow ruling. What I am upset about is the lack of foundation for the ruling and how it offers no guidelines to assess other cases.
Take the Third Circuit opinion which the Court reviewed. It held that a school had no business regulating off campus speech period. That is a rule that is easy as pie to administer. But the Court didn’t think that was correct, which is fine, that is what they are there for, however it is then their job to announce a rule that is correct. Such as answer the question: “What types of off campus speech may a school regulate?”
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.
And that would be the problem. They would need to actually have cases before them to decide if that particular type should be allowed. They would want someone making a case, and someone else making a case to the contrary for each type. They don’t want to adjudicate any case not currently before them, e.g. the kid who got in trouble for having a gun during distance learning.
That’s French’s argument, anyways. It starts at 29:15. He expresses his disappointment at the narrowness of the ruling, but then explains why it was expected. At 31:00 he talks about distance learning (and the kid who had a toy gun), and then connects that at 31:40 to the enumerated powers of the judicial branch.
I think he makes a compelling argument that the Court doesn’t have the jurisdiction to make the sort of more specific ruling we wanted at this time, and would need to wait until more cases regarding a school regulating off-campus speech were actually put before them.
The chance is no different than if you said it to some of your friends offline, who then told other people. That’s all that happened here. The only difference is that it was online instead of offline.
There is no social or legal difference between the two. Online communication has replaced offline communication in a lot of areas, especially for those who are younger. Since online speech is used like offline speech, it is being treated the same way.
The reason for this court case is exactly because there are those like who think the coach had the right to punish the girl for what she said. The Supreme Court has now made it clear this is illegal.
There is a principle in the decision that is relevant. No regulation on speech from a school can be in effect 24/7. If they could regulate her online speech that she posted outside of school, then they could regulate what she says online at any time.
I support this ruling because it seems clear to me that the faculty involved are of the authoritarian bent, and want to punish speech that they don’t like by making up things said speech did not in fact do.
The school wanted the right to punish people for saying “Fuck” off campus, as long as they referenced an extracurricular activity like “cheer” when they did so. The school does not have that right.
I think we are more in agreement than we are disagreement. Of course, the Court shouldn’t say, “Oh, but if a kid has a gun during distance learning the school can/can not punish that.” As you said, that case is not before them and the kid should have a right to have his attorneys argue why that shouldn’t be punished and the state should have an opportunity to argue why it should.
But my continuing complaint is that this case should lay down principles that build on the law and allow these lawyers to cite to it to argue that the kid with the gun is more or less like the fuck you cheerleader.
First, I think it would be outside this case as to whether holding a gun during remote learning is speech at all, but assuming it was, the kid is off campus. The Court said that the school can regulate “some” off campus speech, so is this one of those? We have no test. Does it matter that the kid knew that others, not at the school, but at their homes conducting school could see the gun, but that this girl was only arguably negligent in allowing it to get into the school? No clue. How do we define a substantial disruption to the learning environment? Obviously the kid can’t shoot through his video feed, so nobody should feel threatened, but what tools do I use to compare the unease which some students may have with seeing the gun to the offense or unease that students had towards this girl’s comments? Nada.
Perhaps I am not explaining it well, but that is my frustration with this opinion.
But that was the argument the Court took the case to at least partially resolve. There is a need to treat them differently because they are different. As has been said, one is permanent and the other disappears after it is said.
The argument is that they can regulate online speech which is directed at a school activity in which she is a current participant and insults the activity in a profane way. She can go to the mall and say “shit piss fuck cocksucker” and the school doesn’t care. She can post pornography online and the school doesn’t care.
She can go to her friends house and say “fuck cheer.” But when she creates it in a permanent format that is almost certain to get back to all of her teammates and the coach, that is so much different. The school, like any other organization, only cares about things which could potentially harm its mission.
If you work for Coke and post “Fuck Coke” with your middle finger up in the picture, do you think that Coke would be just acting like a jack boot for firing you? Or might they have a good reason?
There are lots…and lots…and lots…and lots of examples that completely disagree with this statement. Schools have lost their goddamned minds when it comes to how involved they get on this stuff.
Completely inappropriate analogy. Coke is a private company, the school is public. First amendment 101.
It is not. Many cases hold that when the government is not acting as a sovereign but as an organization, it can have rules which allow it to operate that way. It is not given the leeway that a private company has, but it is far less restricted than it would be when policing general members of the public.
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?
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. And when hundreds of people are able to see it, it is more likely that one or more people do this.
If Snapchat isn’t permanent, how is it now part of the records of the Supreme Court for all time?
