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Comment by joshuaheard | Hacker News Reader

While I support the general proposition that students should not be punished for off-campus speech, there is more to this case. My daughter is a cheerleader, a voluntary association within the school, which has a strict code of conduct. There are rules against public intoxication, sexual promiscuity, and disparagement of the school. So, it is a case of a student violating a voluntary association's code of conduct and being removed from that association. I think this is distinguished from a normal school/student free speech relationship. I look forward to reading the court's opinion.

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They actually have rules against "sexual promiscuity"? What do those rules look like and how are they enforced? Is it just a dress code, or do they actually discipline students for being "promiscuous".

I can't help but wonder if the football team also has such rules

If anything, sexual promiscuity is how you get respected and are more likely to play in games.

Look, I realize there can be a double standard, but please, this is a bit much.

As someone who played on the football team, you are more likely to play in games by being bigger, stronger, faster, and more intense than the other dudes at your position. Coaches give no consideration to anything beyond that.

From what I personally have seen and heard from other people, football teams either have no such rules or those rules are not enforced about 100% of the time.

> how are they enforced?

I can guarantee these rules are not enforced uniformly across socioeconomic class.

If you go with the "voluntary association" defense, it is just a different flavor of lawsuit. The requirement for association means giving up your free speech rights, which a high school cheer team has no business requiring.

I question the reason why the state has any right to make rules about sexual promiscuity but whatever

It's irrelevant whether it's voluntary or not, it matters whether it's an establishment of the state.

No. Schools are obviously allowed to limit speech inside the classroom. The question is whether that right extends outside.

I was responding to the above assertion that the voluntary nature of the program is relevant, in regards to the situation in the parent comment. I wasn't referring to the case in the top-level post.

Actually one of the issues in the case was whether she waived her 1st Am rights by voluntarily joining the team.

https://casetext.com/case/us-v-levy-22

Did you post the wrong link? Looks like that's about a case regarding distribution of heroin in the 80s?

I have not seen any analysis that suggests that the school district has used that argument, but I'd be interesting in reading it.

The analysis here[0] (which is the most detailed I've seen) suggests that Mahanoy is arguing that this off-campus speech is causing on-campus harm.

[0]: https://www.law.cornell.edu/supct/cert/20-255

Oops, sorry. Here is the correct link.

https://casetext.com/case/bl-v-mahanoy-area-sch-dist-2

In Part II B. iii Section B: "B.L. Did Not Waive Her Free Speech Rights", the court discusses the defense of waiver for voluntary activities with a separate code of conduct.

"The School District next argues that by agreeing to certain school and team rules, B.L. waived her First Amendment right to post the “fuck cheer” snap. We disagree."

Ah interesting. Looks like that claim was pretty strongly rejected though, as it should be.

My understanding is that the first amendment prohibits federal and state governments (and therefore public schools) from placing restrictions on free speech in the first place. Therefore, parts of the code of conduct are unconstitutional and so unenforceable.

Is this voluntary association supported with public funds? Managed by public employees?

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