Supreme Court set to hear major student speech rights case

Tomorrow, the Supreme Court will hear the case of Mahanoy Area School District v. B.L. Brandi Levy (B.L.) is a high school student who, after failing to make the varsity cheerleading team, went on social media to post a picture of herself raising her middle finger under the caption “F*** school f*** softball f*** cheer f*** everything.”

The school suspended B.L. from junior varsity cheerleading. It found that she had damaged its image and had violated its policies, to which she had assented, requiring respect for coaches and prohibiting “foul language and inappropriate gestures.”

The suspension produced the lawsuit now before the Supreme Court. B.L. prevailed in district court and at the appellate level. The district court concluded that her mini-rant did not disrupt the school’s operation and therefore was protected under the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District. In Tinker, the Supreme Court upheld a student’s right to wear an armband at school in protest of the Vietnam war because the protest was non-disruptive.

The Third Circuit affirmed. It held, however, that the Supreme Court’s decision in Tinker does not apply to off-campus activity. Even disruptive speech by students is protected if it takes place outside of school, the panel majority said. A third judge on the panel, in a concurring opinion, applied Tinker to off-campus speech, and agreed with the district court that B.L’s speech was not disruptive.

As I see it, B.L.’s case involves two competing concerns: the free speech rights of students and the right of schools to minimize disruption. The district court and the concurring appeals court judge found no real tension between the two concerns because it deemed B.L.’s conduct non-disruptive and non-threatening.

The appeals court majority didn’t worry about tension between allowing speech and minimizing disruption because B.L.’s speech occurred away from school. Something more than disruption is required to justify restricting off-campus student speech, the majority ruled. It declined, however, to provide much guidance as to what that something more is.

I agree with the majority that a “disruption” standard should not apply to off-campus speech. School authorities can easily label such student speech, including political speech, “disruptive.” Courts might be inclined to give them great deference in adjudging what does and does not disrupt a school. In this age of political correctness and cancel culture, George Will is correct in saying:

Allowing schools to punish anytime-anywhere speech will encourage schools in their aggressive enforcement of political agendas, and will inevitably involve punishing speech because of reactions to it, thereby allowing a “heckler’s veto.”

As to what should replace the “disruption” standard, Will points to a brief filed by three law professors, one of whom is Eugene Volokh. Their brief argues that while schools may control virtual as well as physical classrooms, they may not control online or other speech outside the “school context.”

Under this approach, schools could punish online, school-related cruelties, but only when they are about “the characteristics of individual people, not about broader policy matters.” Thus, schools would not be powerless to punish online bullying. However, as Will describes the brief, the professors argue that only truly threatening speech can be punished, not speech that threatens only the serenity or the sense of “safety” of the hypersensitive.

The approach of the three law professors, as described by Will, seems preferable to a “disruption” standard, at least in cases of off campus speech. The distinction they draw between speech about individual characteristics and speech about broader policy matters seems both easier for courts to adjudge and more attentive to free speech concerns. Off campus speech about policy matters may be disruptive, but unless it poses a true threat to safety, it should be permitted.

Or so it seems to me.

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