SCOTUS Strikes Minor Blow For Student Free Speech

P. Gardner Goldsmith | October 6, 2021
Font Size

In a ruling that has gone virtually unacknowledged by the pop media, the Supreme Court of the United States majority offered a minor victory to public school students who might want to criticize the propaganda system in which they are trapped and for which taxpayers are forced to pay.

Sophia Cope and Naomi Gilens note for The Electronic Frontier Foundation (EFF) via ActivistPost that the case originated in Pennsylvania, was called “Mahanoy Area School District v. B.L.,” and they observe:

(T)he U.S. Supreme Court held that public high school officials violated a student’s First Amendment rights when they suspended her from cheerleading for posting a vulgar Snapchat selfie over the weekend and off school grounds. EFF filed an amicus brief in the Supreme Court in support of the student, and a brief that proved influential in the Third Circuit.

The case and ruling are notable not only for the personal hardships experienced by the then-minor female student, but for the larger picture of government schooling in general that the details expose.

As Cope and Gilens write, the case:

…involved a public high school student who was placed on the junior varsity cheerleading squad after failing to make varsity. Out of frustration, Brandi Levy (later identified by her full name since she is no longer a minor) shared a “snap” with her middle finger raised and text that said, among other things, “(F***) cheer.” The message was posted on a Friday night from a local convenience store. The cheerleading coaches suspended Levy from the J.V. squad for a year after one of her Snapchat connections took a screen shot of the message and shared it with them.

So, not only did the school administration react harshly in response to a human being expressing a simple emotion while outside school, someone had the busybody time and inclination to take her post and tattle to the “authorities.”

That, itself, is troubling. But it’s the argument made by the local government and school bureaucrats – and the 1960s precedent on which they based that argument – which is more disturbing, and more pertinent, for all of the US.

The school justified the punishment of Levy’s off-campus speech by invoking the Supreme Court’s opinion in Tinker v. Des Moines Independent Community School District (1969), which held that students may not be punished for their on-campus speech unless the speech ‘materially and substantially’ disrupted the school day or invaded the rights of others. The school further justified Levy’s suspension on the ground that social media posts generated off campus can easily be brought onto campus given the widespread use of cell phones and the internet. 

Let’s pause to reflect on the “Tinker” ruling, and begin to see how it exposes the unworkability of government-run schools.

That ruling resets the baseline of free speech, allowing a governmental body to crush speech using a rationale that the expression “materially or substantially” disrupts the school day (the portion in “Tinker” about the rights of others is a different matter).

As some liberty-minded people might have predicted at the time, the “Tinker” threshold places the operation of the tax-eating school before the fundamental speech rights of the individual forced to attend or pay for it. In “Tinker”, the pattern of rights-attack shifts to speech, assuming, first, that someone’s words can “materially” disrupt a school day, and then allowing for the government to arbitrarily choose what is a “substantial” disruption. Both of those terms are amorphous and likely were viewed by worried Americans of that era as weapons that would be used to silence speech in the future.

Which is precisely what the new case indicates.

Cope and Gilens observe the same problem – with “Tinker” and the new SCOTUS ruling:

In ruling in favor of Levy, the Supreme Court did not go as far as we had hoped. The Court held that Tinker may sometimes justify restrictions to off-campus speech: ‘[W]e do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus.’

And, note Cope and Gilens:

The Court identified only four off-campus contexts where the school’s regulatory interests remain significant’ and may warrant punishment:

‘[1] serious or severe bullying or harassment targeting particular individuals; [2] threats aimed at teachers or other students; [3] the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and [4] breaches of school security devices, including material maintained within school computers.’

And one of the key reasons for this, according to the court majority, is that a school cannot operate in loco parentis or “in the place of the parent”, and, as a result, the speech restrictions only pertain to actual threats, rules for lessons, or breaches of security.

But public schools always push out parents. And, again, apart from the traditional Lockean principle of the government existing to prohibit person-on-person threats, all the above speech standards leave the bureaucracy with the power to arbitrarily define the “rules for lessons,” and “breaches of security” and why that “security” exists.

As we have recently seen, leftists intent on pushing progressive pedagogy in public schools recently created a fantastical, evidence-lacking, narrative painting as “threats” and possible “terrorists,” concerned parents who speak out at local school board meetings. Therefore, the idea that government-defined school “security” is a hard and fast rule, or that government-selected school “lessons” actually ARE lessons is specious and founded on an unwarranted belief that what the government says is what conforms to reality and must supersede freedom of personal choice.

The “Mahoney” ruling is a small victory for speech, but, on the dark side, it reiterates the lesson that, until more Americans recognize the unnecessary level of government involvement with education, more people will experience conflict with government over the very schools they are forced to support or attend.

Related: Baltimore Schools Will Now Advance Failing Students To 'Avoid Punitive Approach' | MRCTV


mrc merch