freedom of speech
What better time to write about Freedom of Speech, than the week of Independence Day. The Supreme Court recently addressed freedom of speech in Mahonoy Area School District v. B.L., in a case discussing a high school student's expressed frustration with the school on Snapchat. The high school cheerleader had tried out for the cheerleading team, and did not make it. So she posted a couple of photos on her Snapchat with middle fingers raised, stating "Fuck school fuck softball fuck cheer fuck everything." The school suspended the student from the team, and so ensued this case.
I'll remind parents now, this might be a good time to read the other blog post on protecting your kids from social media trouble, found here.
So, was the student's off campus speech, on her smartphone, via Snapchat, protected under the First Amendment? The Court said YES. The Court, in its holding, reminded that students do not "shed their constitutional rights to freedom of speech or expression" even "at the school house gate." See Tinker, 393 U.S. at 506. The Court went on to say that Minors are entitled to significant measures of First Amendment protection. There are some instances in which the student speech may be regulated in the school: lewd, vulgar speech uttered on school grounds or during school assembly; speech uttered during class that promotes "illegal drug use"; and speech that others may reasonably perceive as bearing the imprimatur of the school (such as statements in school newspapers). And finally, the Court has held that schools do have a special interest in regulating speech that "materially disrupts classwork or involves substantial disorder or invasion of rights of others." See Tinker, at 513.
So, even though the school may have the right to limit speech of a student in certain circumstances, the Court has held that generally, there are a few circumstances where student speech cannot be regulated. First, off-campus speech should normally fall within the zone of parental responsibility, rather than school responsibility. Second, courts are more skeptical of a school's effort to regulate off campus speech, because doing so may result in the student not having any right to free speech, at all. And third, schools should work to ensure that future generations understand the workings in the well-known statement: "I disapprove of what you say, but I will defend to the death your right to say it." In other words, schools should encourage students to express the unpopular opinion and engage in meaningful conversation.
In summary, the Court found that the student's speech about the school was essentially criticism of the team, the coaches, and the school. It did not involve any statement that would place it outside the normal First Amendment protections. While crude, the statement did not amount to fighting words and did not pose a threat. In fact, had the student been an adult, the speech would have been provided strong protection under the First Amendment. See Snyder v. Phelps, 562 U.S. 443, 461 (2011), a case which held that the First Amendment protects "even hurtful speech on public issues to ensure that we do not stifle public debate."
So, what does this mean for your kids? Can they say what they want, when they want? Not really. The Court relied heavily on the fact that this student's statements were made outside the school grounds and outside of school hours. The Court also relied on the fact that these statements were not shown to disrupt the school in any way, other than a few small conversations by students who had seen the post. Finally, the Court considers whether the parents should be acting, or if it is speech that the school should be regulating.
In the words of George Orwell, "If liberty means anything at all, it means the right to tell people what they do not want to hear." Happy Independence Day, Friends.