SCOTUS saves the cheerleader ... and the student free-speech world? UPDATE: Stay classy, ACLU

Erin Schaff/The New York Times via AP, Pool

Just how far can schools go to regulate student speech? The Supreme Court set a reasonable, if somewhat flexible, limit today in an 8-1 decision involving a cheerleader and her Snapchat account. Brandi Levy responded to her failure to make the varsity cheer squad with vulgar social-media messages and gestures, after which her school suspended Levy from the JV team.

That took in loco parentis too far, the court found. In the future, they set fairly tight limits on the kind of off-campus speech and conduct that schools can legitimately regulate without intruding on First Amendment rights:

The Supreme Court on Wednesday ruled in favor of a Pennsylvania high school student who was suspended from the cheerleading program over a profane Snapchat post lamenting being denied a spot on the varsity squad.

The justices’ 8-1 decision found that the First Amendment imposes broad limits on public schools’ ability to regulate off-campus speech delivered via social media, but the high court left the door open to educators regulating messages that are highly disruptive to school operations.

The case, the high court’s first big student free-speech case of the internet era, was framed as a test of school officials’ power to regulate student speech on the web. It started with a profane lament on Snapchat by a Pennsylvania ninth-grader, Brandi Levy, about being denied a spot on the varsity cheerleading squad.

“F— school, f—-softball, f— cheer, f—everything,” Levy wrote in her 2017 message, which prompted a one-year suspension from the cheerleading program.

Vulgarity aside, that should be constitutionally protected speech for anyone, even students — as long as it doesn’t take place at school, at a school event, or wherever schools are responsible for the conduct of their students. The nearly unanimous court agreed, while carving out a couple of key exceptions, specific but not necessarily exclusive:

Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus. The school’s regulatory interests remain significant in some off-campus circumstances. The parties’ briefs, and those of amici, list several types of off-campus behavior that may call for school regulation. These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.

Writing for the majority, Justice Stephen Breyer set up a three-part review for all off-campus speech regulation, with the effect of refining an earlier precedent in Tinker:

First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco parentis treats school administrators as standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.

Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.

Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, “I disapprove of what you say, but I will defend to the death your right to say it.” (Although this quote is often attributed to Voltaire, it was likely coined by an English writer, Evelyn Beatrice Hall.)

Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway, we can, as a general matter, say little more than this: Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.

This seems pretty straightforward, but Justice Clarence Thomas dissented. Rather than follow Tinker, Thomas argued that they should have followed Lander, which is at least arguably more directly on point:

While the majority entirely ignores the relevant history, I would begin the assessment of the scope of free-speech rights incorporated against the States by looking to “what ‘ordinary citizens’ at the time of [the Fourteenth Amendment’s] ratification would have understood” the right to encompass. McDonald v. Chicago, 561 U. S. 742, 813 (2010) (THOMAS, J., concurring in part and concurring in judgment). Cases and treatises from that era reveal that public schools retained substantial authority to discipline students. As I have previously explained, that authority was near plenary while students were at school. See Morse v. Frederick, 551 U. S. 393, 419 (2007) (concurring opinion). Authority also extended to when students were traveling to or from school. See, e.g., Lander v. Seaver, 32 Vt. 114, 120 (1859). And, although schools had less authority after a student returned home, it was well settled that they still could discipline students for off-campus speech or conduct that had a proximate tendency to harm the school environment. …

So widespread was this rule that it served not only as the basis for schools to discipline disrespectful speech but also to regulate truancy. Although modern doctrine draws a clear line between speech and conduct, cases in the 19th century did not. E.g., Lander, 32 Vt., at 120 (describing speech as “acts of misbehavior”); Stockwell 236–238 (applying the Lander rule to “[t]he conduct of pupils”); Morse, 551 U. S., at 419 (THOMAS, J., concurring) (“speech rules and other school rules were treated identically”). Citing Lander, schools justified regulating truancy because of its proximate tendency to harm schools. As the Missouri Supreme Court put it, although “[t]ruancy is an act committed out of the school,” schools could regulate it because of its “subversive” effects on the “good order and discipline of the school.” Deskins v. Gose, 85 Mo. 485, 488–489 (1885); see also Burdick v. Babcock, 31 Iowa 562, 565, 567 (1871) (“If the effects of acts done out of school-hours reach within the schoolroom during school hours and are detrimental to good order and the best interest of the pupils, it is evident that such acts may be forbidden”).

Some courts made statements that, if read in isolation, could suggest that schools had no authority at all to regulate off-campus speech. E.g., Dritt v. Snodgrass, 66 Mo. 286, 297 (1877) (Norton, J., joined by a majority of the court, concurring) (“neither the teacher nor directors have the authority to follow [a student home], and govern his conduct while under the parental eye” because that would “supersede entirely parental authority”). But, these courts made it clear that the rule against regulating off-campus speech applied only when that speech was “nowise connected with the management or successful operation of the school.” King v. Jefferson City School Bd., 71 Mo. 628, 630 (1880) (distinguishing Dritt); accord, Lander, 32 Vt., at 120–121 (similar). In other words, they followed Lander: A school can regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the school, its faculty or students, or its programs.

If there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it.

Be sure to read all of Thomas’ dissent, which is as ever thought-provoking and tough to contest. In refining Tinker and abandoning Lander, it would appear that the court wants to further restrict school authority outside of on-campus and school-sponsored events, but Thomas is correct that the result is rather vague. Schools and lower courts will still have to suss out exactly where the lines get drawn and how firm they are, which still leaves students a bit in the dark when it comes to criticizing their schools.

I’d tend to agree with the majority here and err on the side of free speech off campus, and keep the authority of the schools and school boards limited in that regard. (Loudoun County’s clown show demonstrates what happens when free speech gets infringed.) Thomas raises significant issues that the court will eventually need to resolve, but it’s better to resolve that from a foundational assumption of free-speech rights off campus than a foundational assumption of school jurisdiction.

Either way, this case will be fascinating to watch as precedent. But let’s face it … we’re here for the meme.

Update: I’m with Andrew Sullivan on this:

I think this decision is wise in how it limits state power and school authority over speech outside of their jurisdictions. It’s another thing entirely to celebrate it by playing in your own filth.