The Supreme Court is Caught in a Social Media Conundrum with Free Speech at the Core…
May 12, 2021
On April 28th, the Supreme Court heard a free speech/first amendment case that involved schools, sports teams, educational oversight, potential bullying, and social media. This case clearly left all of the justices, whether liberal or conservative, feeling uncomfortable about making a decision. Why such discomfort? The case involved a Pennsylvania 9th grader’s angry, post to 250 friends on Snapchat sent on the Saturday after she did not make the varsity cheerleading squad. The post contained foul language and a picture of her and a friend “giving the finger” to seemingly the school, the team, cheerleading and the world! When it was shown to the cheerleading coach (whose daughter was among the 250 recipients), the sender (Brandi Levy) was suspended from the Junior Varsity cheerleading squad for a year. Her parents contacted the local ACLU, who sued the school for violation of Brandi’s free speech rights. Afterall, she sent the post from outside of school and outside of school hours. Lower courts agreed. But now, the case has been appealed to the highest court in the land and simply defining the issue to be adjudicated is as much a dilemma for the Justices as, apparently, will be reaching a decision.
The last time the Supreme Court (SCOTUS) made a decision on free speech and students’ rights the internet was not an integral part of our lives. But the war in Vietnam was. And when students in an Iowa high school wore black arm bands to protest the war, the 1969 case, Tinker v. Des Moines Independent School District the court was very clear in finding that public school students do not do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But Tinker was not without its limitations on where schools might draw the line on free speech within a school context. It also held that schools may punish students for speech that “would materially and substantially disrupt the work and discipline of the school.” Thus, came the argument that Ms. Levy’s curse-laden social media post was disruptive to the work and discipline of the school. But one might ask, as did the justices, in this day and age, was it really? And then, what follows that question is, where does a school, or anyone, draw the line and regulate what is and is not acceptable as free speech in and out of school, or for that matter, in the public square, especially with our open access to social media. And perhaps, a key question that the justices attempted to clarify was that of how this kind of social media creeps into the schools, even when it was started outside of the school boundaries.
Justice Elena Kagan picked up on this point with a series of questions to Deputy Solicitor General Malcolm Stewart about just what constituted “school speech” and would then be subject to regulation by the school, even when it occurred off-campus.
When told that perhaps not everything that mentioned a school would be subject to regulation, Justice Kagan asked, “Can I give you a few hypotheticals, and you just tell me school speech or not school speech?”
“The student emails his classmates the answer to the geometry homework every day after school?”
“Student emails his classmates that they should all skip school tomorrow for an impromptu senior skip day?”
“Student emails that they should refuse to do any work for English class until the teacher changes the syllabus to include more authors of color?”
“Student tweets that there’s pervasive homophobia at his school and that prospective gay students should stay away?”
Stewart conceded that all of the above might be considered school speech and could be punishable under the standards proposed by the Justice Department. And thus, the conundrum of the Supreme Court is laid out with great clarity. It was expressed by Justice Breyer with some sadness and distress when he said, “Everyone seems to want some rule. I’m frightened to death of writing a standard.”
Concern for the issues of bullying and racism was also a presence at these hearings. The use of social media to bully and harass students has become a concern for schools, families, and others. How a ruling in this case of social media use outside the school might impact in these areas loomed large. As Ian Millhiser stated, writing in Vox: It’s not clear, for example, how a student acts in their “capacity as a student” when they bully a classmate.
While all but one Justice (Clarence Thomas) seemed inclined to rule in favor of Ms. Levy, it is likely that the ruling will be as narrow as possible. Justice Kavanaugh even took the unusual path of suggesting a way to resolve the case during the hearing. He suggested the Court say that the “First Amendment does not categorically prohibit public schools from disciplining students for speech that occurs off-campus,” and then send the case back down to the lower courts with maybe a few more vague instructions. A second option, not suggested by any of the justices outright, but discussed during the case is that schools be given the right to regulate student speech by student-athletes or others engaged in extracurricular activities. These “rules” would have to be conveyed in advance so that students know their rights when they choose to participate and so that they do not face sanctions that seem out of line with their ability to do so. Of course, what happens when the justices sit down to deliberate this case, may not be predictable.
But one thing may be predictable. Justice Clarence Thomas will not rule in favor of Brandi Levy’s (or any student’s) free speech rights. Justice Thomas believes that students have virtually no free speech rights in or outside of school because, according to the justice’s own historical research, minors had no such right when the First Amendment was ratified in 1791. This is where his originalism makes this case simple. And perhaps, that may sway other Justices who may now regret taking on this not so simple First Amendment case.