Supreme Court sides with high school cheerleader who cursed online
cnn.com
cnn.com
The Court was trying to find a balance that allows schools to prevent kids from going around spewing expletives all day long without consequence, while at the same time not treading too heavily on the legitimate free speech rights of students.
BTW, what do you mean when you say "nonviolent speech"? Are you referring to calls to violence, or the more recent concept (not recognized by the courts) that certain speech is itself violence?
I totally understand the practical implications and what they are trying to do, I just don't understand how it's legal without a constitutional amendment.
At worst, swearing too much will paint you as uneducated or abrasive, but in fact if someone complained about it they would be more likely to be criticized.
The next step is simply that one tribal group will attempt to target anyone who uses certain words for punishment not because of the word itself but because you indicate you are part of a different tribe and therefore must be punished.
Ultimately it is an abandonment of the principle of governance by law and instead replaces society with a system of tribal warfare.
Back in the 70s, as an example, Canadian broadcast TV used to censor violence quite a bit, yet not nudity as much.
The US was the reverse, with violence on OTA TV more freely shown, compared to nudity.
Canadian vs US broadcast cuts of some movies had to be unique as a result, or US cuts only shown late at night.
I imagine the same logic may apply to "swearing", from a religious viewpoint.
When I was young, we used to joke that Canadians censor violent death, and Americans censor love...
This is the rationale for punishing children for saying the words. American parents often do not want their children participating in an environment where those words are socially normalized, and so, school staff prohibit the behavior.
Depending on the particular word and its usage, it may be language that inherently bullies other children too -- also not behavior that American parents want school staff to tolerate.
I believe a couple provinces of France still have blasphemy laws.
And, then there is Holocaust denial...
For better or worse, the US legal system is far more liberal than France’s when it comes to speech. (As for the relative sensitivity of individual citizens of either country to foul language, I don’t know. Depends where you are, I guess.)
If I publish a public video where I say that "M. Untel est un professeur très injuste" ("Mr. So-and-so is very unfair"), no problem, "M. Untel est un fils de pute" ("Mr. So-and-so is an asshole"), consequences.
Stepping away from race for a second because it probably is needlessly complicating this, you would not get in trouble in a french school for saying the french equivalent of "fuck you, you lazy piece of shit" to your teacher?
No, that's exactly the opposite of what I said. In the US you have to circumlocute your way around saying the word in all circumstances, even when it's not used in a derogatory / insulting way (such as referentially, or even because it sounds that way, see "niggardly" and "nega nega" incidents.) Insulting someone is insulting someone. Saying "go get sexually penetrated you inferior race person" is offensive whether you use a taboo word or not.
It's not clear to me that a school should have the ability to punish people at all for off campus actions, let alone that this punishment is proportional to the event.
This case is only about the schools ability to exercise arbitrary power over its students, and it was willing to take that to the supreme court-- something which is incredibly rare and expensive over something absolutely mundane and everyday.
Spewing expletives all day long without consequence is a right, guaranteed by the first amendment. If the school system doesn't like it, it's free to relocate to a country where free speech laws don't apply.
I still don't understand why this went all the way to the supreme court. It's such a clear-cut case of free speech. Some school admin's reading comprehension must be really poor if they couldn't make sense of the first sentence of the constitution.
The previous Supreme Court precedent (Tinker, [1]) was from 1969, and it wasn't clear how it should/would apply in the case of digital speech. For example, a student can be off-campus and tweet something that is instantaneously seen by hundreds of students who are on-campus. It wasn't clear how Tinker's framework would apply to this, since twitter and other platforms for remote speech didn't exist at that time.
One principle used to restrict free speech on school campus is about being "disruptive" to the class. E.g. Public schools banned kids from wearing the Confederate flag on shirts because they were "disruptive". In some cases, the free speech advocates fought the rule and yet the ban was upheld by courts even on appeal:
https://www.google.com/search?q=confederate+shirt+banned+pub...
If I was king I'd declare the whole country a school where criticism of me is banned.
In Tinker the supreme court ruled that schools can limit SOME speech ON/around school premises under narrow circumstances. However, in this case, Mahanoy Area School District v. B.L. - B.L. was not on school grounds at the time, simply references school. The Defence in Mahanoy vs B.L. actually tried to muddle in the standard test under Tinker of "substantial disruption" to this case, but the court basically told them to kick rocks on that.
There are truancy laws, and these vary greatly from state to state. However, not showing up for detention does not typically make one a truant; only being absent during regular hours.
"Free speech if and only if you leave" is not really free speech, is it?
School choice only works if it doesn't destroy your life to make some other choice. Otherwise it's not really a meaningful choice.
students have had significant freedom of speech protections since 1969. not sure what time scale you had in mind.
and until there was a nontrivial number of older students in state run schools, there wouldn't have even been opportunities for case law to arise. (mandatory) public schooling started with younger students and expanded from there.
(while children of any age should have their freedom of speech, i think we can both agree that as a practical matter, they're more likely to put it to use the older they get.)
This is pretty much my point, the influence of the Constitution has been increasing over time, not decreasing as the commenter to whom I originally replied seemed to imply.
I don't know why you would use any but the longest available timeline when considering whether the Constitution is "still the law of the land". It's an inherently from-the-start kind of question.
IANAL and would butcher the explanation, so check out the Decision section.
That's a leap. "Disruptive" was defined within the context of the facts and circumstances of that case. Courts are about balancing rights, in this case, the rights of students to receive a public education and the rights of students to speak freely under the First Amendment. This case narrowed the definition, ever so slightly, of what is and isn't "disruptive" within the meaning of this law.
Even here, I'm surprised by the free speech advocacy of the justices. It doesn't seem consistent with plenty of other rules that are allowed to stand. This school could have punished the same cheerleader for the same words if she'd said them in class or even at practice. As far as I can tell, she was only protected because the school can't punish her for what she says totally outside of school property and activities.
The wording of the decision makes it sound like you're free to speak profanely anywhere and anytime you want, but schools clearly punish people for profanity all the time and that's never been stopped.
Yes, it does. The Fourteenth and Fifteenth Amendments [1] incorporate much of the Bill of Rights against the states. Local governments are creatures of the state; SCOTUS has long found that local governments have been incorporated against as well.
[1] https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...
... is not and never has been an exception to the constitution. It was written as part of a dissent which has been thoroughly ignored and repudiated except by people who don't understand the first thing about US law.
https://en.wikipedia.org/wiki/Schenck_v._United_States
Granted that decision was later partially overturned, but the general principle that the first amendment protections are not absolute remains in force, and there are many extant examples: libel laws, laws barring false advertising, and laws against incitement of violence are all constitutional.
The phrase was used by Justice Holmes in a boneheaded decision that upheld the illegality of objecting to the draft. Thankfully, the opinion was later overturned.
The very narrow point being made by the Supreme Court was there could be crimes-such as inciting imminent lawless action-that might be precipitated by speech. It’s not the speech that’s illegal... the crime is the intent to cause an immediate riot.
The same crime could be occasioned by storming into a theater with a gun and scaring the shit out of people.
In any case, the “yelling fire” trope isn’t accurate as it’s usually used.
As far as human sacrifice, there’s nothing inherently illegal about it. That is, if it’s legal for grandma to be euthanized, or legal for a convict to be executed, or legal for a baby to be aborted, it would make no difference legally if the participants considered the act part of some bizarro religion.
The analogy “fire in a crowded theater” was most famously used by Justice Holmes in 1919’s Schenck v. United States. Holmes used it to argue (and the court ruled that) protesting the military draft was a clear and present danger to the public tantamount to espionage.
Most people today, I think, would disagree. But the metaphor remains common, often used uncritically, without considering what speech it has been used to suppress in the past.
While students do absolutely have rights, schools are also tasked with caring with kids (especially during the school day). It's typically at the intersection of these rights and responsibilities where we see these cases make it to SCOTUS.
The most obvious counterexample would be speech that disrupts education. Why even have schools if one student can choose to talk and yell and disrupt class and not be punished for it?
That being said there's a common trope coming from the loudest and most moral busybodies in academia that "Americans just want babysitters for their kids three quarters of the year". Sometimes I think it's projection.
But the reasoning of this case indicates that a message sent by a high school student who has a million followers on twitter could be regulated by a school, even if that same message would not have been allowed to be regulated if sent by someone with 5 followers. This is because the large number of followers increases the likelihood of a "substantial disruption" (a term of art from prior cases).
An interesting question: what if someone with 5 followers sends a tweet, which is then picked up and RT'd by someone with a million followers? Should the school be able to regulate the original message (i.e., punish the student) simply because someone with a large following agreed with them? Presumably they couldn't punish the student before the RT, but what about after?
Not sure if this answers your question but some possible examples:
- corporate insiders have "freedom of speech" restricted in the sense that they can be punished for "manipulating stock price". E.g. Elon Musk tweets: https://www.google.com/search?q=ceo+tweets+accussed+manipula...
- book authors writing fiction getting sued for libel/slander so some writers creatively get around it with the "small penis" rule: https://en.wikipedia.org/wiki/Small_penis_rule
Second case is of government putting those restrictions on you. Can public school put such restrictions on students ? I do not know and I am not familiar with this case.
The cynic in me think he might have his own brand of flavored water to launch.
You are confusing "free speech" and "the First Amendment". Free speech has nothing to do with government; it's a generally applicable concept. The First Amendment specifies a requirement for the government to respect freedom of speech. That wouldn't even make sense if freedom of speech weren't a general concept.
Free speech as a general concept is irrelevant in the eyes of law unless you have some specific law governing the specific scenarios. (Employees being punished for how they voted in general election.)
Free speech could be a virtue but it is a virtue like "not lying". It is perfectly legal to lie in many circumstances.
I was responding to the claim "Free speech is always about freedom from government control", emphasis mine. Where did "in the eyes of law" come from? How is this contributing to the conversation?
It's okay to just admit that someone else's clarification was helpful and move on. You don't have to add irrelevant, non-clarifying addenda in order to seem like the more knowledgeable party.
> Advocacy of force or criminal activity does not receive First Amendment protections if (1) the advocacy is directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action.
If you actually read his dissent, instead of a hack summary, you would see he thinks they didn't go far enough in constraining the schools. Quite the opposite of what is implied by CNN. But hey, as long as someone holds a dissenting political opinion they aren't human and therefor fair game, right?
So in your example the school would simply need to require consent from students to have their speech restricted before they can participate in extracurricular programs like the football team.
I quote: "The Court overrides that decision—without even mentioning the 150 years of history supporting the coach. Using broad brushstrokes, the majority outlines the scope of school authority. When students are on campus, the majority says, schools have authority in loco parentis—that is, as substitutes of parents—to discipline speech and conduct. Off campus, the authority of schools is somewhat less. At that level of generality, I agree. But the majority omits important detail. What authority does a school have when it operates in loco parentis? How much less authority do schools have over off-campus speech and conduct? And how does a court decide if speech is on or off campus? Disregarding these important issues, the majority simply posits three vague considerations and reaches an outcome. A more searching review reveals that schools historically could discipline students in circumstances like those presented here. Because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent. " https://www.supremecourt.gov/opinions/20pdf/20-255_g3bi.pdf Page 34
If you actually read his dissent, instead of a hack summary, you would see he thinks they didn't go far enough in constraining the schools. Quite the opposite of what is implied by CNN.
Before I get the deluge of "WHATABOUT fox news" comments. Yes, Fox news is horrible and they are never charitable either.
The process of the court's opinion-writing sometimes involves several justices circulating draft opinions and trying to recruit others to sign on. Thomas might have written such a draft opinion with very careful reasoning, perhaps even concurring in the majority's judgment, but nobody else was willing to sign on to some of his specific reasoning that he thought was crucial, so he took his toys and went home.
Had he agreed with the outcome but not the opinion, he'd write a concurrence (like Alito did).
Multiple times in Thomas's dissent he says the couch was right to have punished from prior standards. His dissent can be boiled down to "The court is not considering prior precedence and should have sided with the couch".
> 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 Amend-ment’s] ratification would have understood” the right to en-compass. McDonald v. Chicago, 561 U. S. 742, 813 (2010) (THOMAS, J., concurring in part and concurring in judg-ment). Cases and treatises from that era reveal that public schools retained substantial authority to discipline stu-dents. 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 toor 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 environ-ment.
If you read the last paragraph of Thomas's dissent, it's clear he's more troubled with the laziness of the majority opinion than he is by the specific result. It reads like he wanted to really dig into the issues Alito raised in a concurring opinion, but didn't feel like he should because only Alito and Gorsuch concurred with that one, and debating those issues at length would be like bikeshedding. Maybe they were on the cusp of getting him to sign on, but they ran out of time and there were unresolved differences that led him to write the dissent.
Thomas's dissent should get everyone to think carefully about the scope of rights to discipline children in loco parentis in various circumstances. If you send your children to a friend's house, or with their friends' parents on some trip or to some event, you're granting those parents virtually unlimited ordinary disciplinary authority (subject to criminal and family law limitations). Voluntarily sending your kids to school could be seen (and, as Thomas points out, was historically seen) to create much the same dynamic.
They have excellent coverage and commentary
You know the ACLU doesn't just fight for free speech right?
Also note that this is a narrow ruling; the supreme court is not intending to set new precedent the way Tinker vs. Des Moines did. They just said this particular student's particular speech in this particular context was protected, not all speech by all students. This case won't be relevant to schools banning hate speech or bullying on social media, for instance. Nor would it have any consequences for public employers.
There is a larger question here. Tinker, the existing precedent, was established long before social media. There will have to be a reckoning, the court will need to decide what speech on social media is protected and what isn't. Speech on social media is (by virtue of this decision) more protected than on campus speech, but less protected than speech by an adult who's not a student at the school. There's a line in there somewhere, and it's the court's duty to draw it. They did not draw that line today; they just said that the line is over there somewhere and saying "fuck" on social media didn't cross it.
No, not really. The courts often make an effort to narrowly define their rulings.
Every last circumstance, and every last exception, does not need to be ruled on, immediately. Those can be addressed, as they come up.
I didn't say immediately.
It isn't their duty to draw the line immediately, but they will need to draw a line. The attention that this case received is evidence of that. Nobody really cares about whether or not Brandi was on the cheerleading team at Mahoney High School, but we do care very much about where the line is.
Ok, so then there is no problem with this decision. Edge cases can be handled when they come up, and there isn't a problem with the fact that this decision did not address every single possible circumstance.
They kicked out a student and cheerleader based on false accusation of her using "a derogatory racist slur" in a leaked private conversation. (She said "nigga".)
https://www.wvlt.tv/content/news/Incoming-UT-cheerleader-use...
Either that or they are blatant racists that are openly tolerated for some reason?