On Tuesday, I wrote about Mahanoy Area School District v. B.L., the high school free speech case the Supreme Court was about to hear. The Court heard the case yesterday. You can listen to the oral argument here.
It was a lively affair, as well it should have been given the tricky questions involved, and was well argued on both sides. The Court seemed sympathetic to B.L. who was suspended from cheerleading due to an obscene social media rant, off campus and on the weekend, issued after she failed to make the varsity.
Justice Breyer said that if using swear words away from school merits discipline, “my goodness every school in the country would be doing nothing but punishing.” Justice Kavanaugh, drawing on his experience coaching youth basketball, felt that a year’s suspension from cheerleading was grossly disproportionate discipline for a fairly normal expression of teenage frustration.
However, the Justices seemed uncertain about how to dispose of the case and, in particular, how broadly to write. Breyer confessed to being “frightened to death of writing a standard” for permissible off-campus speech on the facts of this case. Several other Justices, including Kavanaugh, appeared similarly disinclined to do so.
The school district offered what looked like a way out. It said the Court could overturn the court of appeals ruling that Tinker v. Des Moines Independent Community School District, the Vietnam-era case that upheld schools’ right to punish on-campus speech that is disruptive to schools, does not apply to off-campus speech. The Court could then remand the case, ideally after clarifying Tinker’s “disruption” standard.
In all likelihood, the result would be victory on remand for B.L. But that seemed to be of little concern to the school and to the Biden administration that supports the school’s position. B.L.’s suspension several years ago is water under the bridge (she’s in college now). The school’s interest is in establishing its right to punish disruptive speech that occurs off campus.
However, several Justices pointed out that, in “cleaning up” Tinker, they would have to write a standard. And counsel for B.L. noted that a “disruption” standard applied to off-campus speech would create the real prospect of school officials punishing students for a wide range of utterances — including political ones — on the theory that publishing them on the interact raises the possibility of disruption at school.
Justice Alito picked up on this concern. He stated: “I for one think we need clear rules that protect freedom of speech.”
Counsel for the school district tried to assuage concern about schools punishing political speech by saying they cannot discipline students for speech on topics like politics or religion. Rather, they can discipline students only for speech that “targets” the school.” Alito responded, “I have no idea what that means.”
Several other Justices also seemed unimpressed with this standard. Justice Kagan asked the government’s lawyer, who is supporting the school, whether B.L.’s snap was “school speech.” When he responded that it probably was, she stated that essentially all speech must be “because this is pretty generic.”
Counsel for B.L. urged the Court to affirm the Third Circuit’s holding that Tinker does not apply to off-campus speech. Addressing concerns that this might leave schools powerless to deal with bullying and harassment, he argued that schools could, in fact, punish these things (along with threats) to the extent permitted by the Constitution — essentially when the bullying and harassment is severe and pervasive. However, the prospect of mere disruption — the Tinker test — should not be enough.
Several Justices were troubled, though, by a bright line distinction between off-campus and on-campus speech in the internet/social media era. As Chief Justice Roberts pointed out, modern technology blurs the line between on-campus and off-campus. When a student sends a text from the parking lot but it’s read in the school cafeteria, “is that off campus or on campus,” he asked.
Counsel for B.L. drew the line in terms of whether a student is under the school’s supervision when she speaks or writes. This answer didn’t seem fully satisfactory to at least some Justices.
Some Justices seemed to flirt with a third way of dealing with the case: simply rule that B.L. could not be punished consistent with the First Amendment under any reasonable standard, and leave for another day the question of what standard applies to off-campus speech. This, though, would require dodging the question that the Court granted certiorari to hear: Does Tinker apply to off-campus speech?
Even after listening to the two-hour argument, I formed no clear view as to how this case will be decided. Any of the three approaches discussed above — (1) rejecting the view that Tinker doesn’t apply off campus and remanding the case, (2) agreeing that Tinker doesn’t apply off campus and ruling in B.L.’s favor on that basis, or (3) ruling in B.L.’s favor without deciding whether Tinker applies off campus — seems possible. Each might have the support of some Justices, such that the Court splits at least three ways.
Perhaps B.L. will prevail with a majority split between the second and the third approaches described in the preceding paragraph. And, as noted, even under the first approach, B.L. would probably prevail at the end of the day.