Defending a teen’s right to free speech

Published: 7/9/2021 3:40:27 PM A ninth grader at the Mahanoy Area High School in Pennsylvania — identified by the United States Sup...



Published: 7/9/2021 3:40:27 PM

A ninth grader at the Mahanoy Area High School in Pennsylvania — identified by the United States Supreme Court as “B.L.” — tried out for the varsity cheerleading squad, but she didn’t make it. That rejection (and her unsuccessful tryout for right fielder on a private softball team) was something that she, in the words of Supreme Court Justice Steven Breyer, “did not accept …with good grace.”

More specifically, after receiving the bad news (and being offered a spot on junior varsity cheerleading instead) B.L. and a friend visited the Coca Hut, a local convenience store, where B.L. used her smartphone to post two photos to her Snapchat friends group. That’s when the trouble started.

The first image showed B.L. and her friend giving a middle finger salute to which B.L. added the caption (the actual F-word appears in the Supreme Court’s decision) “F*** School, f*** softball, f*** cheer, f*** everything.” The second image in more restrained language explained her hurt feelings.

One of B.L.’s Snapchat friends happened to belong to the varsity cheerleading squad, where the friend’s mother was a coach. Ooops.

Before the Snapchat images disappeared after 24 hours as they are designed to do, some students, not surprisingly, took a screenshot, and the image of B.L. flipping the bird, complete with her f*** everything commentary, spread.

Fast forward to the school’s adjudication: for using profanity in connection with an extracurricular activity and thus violating a school rule, the cheerleading coaches suspended B.L. from the J.V. team for a year. That decision, notwithstanding B.L.’s apologies, was affirmed in turn by the decision-making adults — the athletic director, the principal, the superintendent and the school board.

But not the federal courts. B.L. sued and won at the federal district court, the Court of Appeals, and, on June 23, at the Supreme Court — an 8-1 decision with only Justice Clarence Thomas dissenting.

On the facts B.L. had a lot going for her. All of the speech happened off campus during non-school hours and did not involve any kind of school activity. She didn’t threaten or harass any student. In fact, she didn’t even name the school. Further, she didn’t use a school computer in composing and transmitting the message, which she sent only to a private group of friends.

Of importance, the post did not cause any significant disruption at Mahanoy High. The most that the school could come up with was that some students for a couple days wanted to talk about B.L’s post for five or 10 minutes at the beginning of an algebra class.

The Supreme Court’s 1969 Tinker case provided the basis for this decision. Tinker involved students wearing black armbands in school to protest the Vietnam War. That case gave us the memorable language that public school students “do not shed their constitutional right to freedom of speech or expression at the schoolhouse gate.”

Tinker left open an exception for speech that actually causes a substantial and material disruption to classwork or the school. That’s a high bar, intentionally difficult to reach.

Since Tinker, the Supreme Court has identified three other categories of student speech that can warrant regulation: dirty words at a school assembly; words on a class trip promoting illegal drug use; and words that bear the imprimatur of the school such as in a school-sponsored newspaper. None of those exceptions apply here.

What the recent B.L. decision makes clear is that the constitutional guarantee of freedom of speech imposes a very significant barrier to a school’s attempt to regulate students’ out-of-school speech. Although the decision does not decide every possible fact pattern, it nonetheless is rightfully being hailed by First Amendment advocates as a big victory for students’ free speech rights.

And for me personally the decision resonates. This month marks the 25th anniversary of the Massachusetts Supreme Judicial Court’s decision in a case that involved T-shirts with messages worn by South Hadley High School students. Administrators claimed the right to act as censors and ban the shirts because they said they were vulgar.

One offending T-shirt had an anti-drunk driving message with stick figures and the words “See Dick drink; see Dick drive, see Dick die; don’t be a Dick.” Another, protesting the school’s censorship, had a picture of a gerbil with the words “Coed Naked Gerbils — Some people will censor anything.”

Part of the South Hadley case was decided, like B.L.’s, under the First Amendment by the federal district court and part under the Massachusetts Student Freedom of Expression Act by our state’s highest court. The students won. My ACLU colleagues and I represented them.

These cases matter. As the B.L. decision explains, “America’s public schools are the nurseries of democracy…(S)chools have a strong interest in ensuring that future generations understand the workings in practice of the well-know aphorism (often, and probably mistakenly, attributed to Voltaire): “I disapprove of what you say, but I will defend to the death your right to say it.”

Bill Newman is a Northampton-based attorney and radio show host. He writes a monthly column.



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