The New York Times
The vulgar message from a cheerleader leads to the confrontation of the first amendment
WASHINGTON – It was a Saturday in the spring of 2017 and a ninth grader in Pennsylvania was having a bad day. She had just learned that she had failed to join the varsity cheerleaders team and would remain on the junior varsity team. The student expressed her frustration on social media, sending a message on Snapchat to about 250 friends. The message included an image of the student and a friend with a raised middle finger, along with a text expressing a similar feeling. Using a curse word four times, the student expressed her dissatisfaction with “school”, “softball”, “joy” and “everything”. Sign up for the New York Times newsletter The Morning. Although Snapchat messages are ephemeral by design, another student took a screenshot of it and showed it to his mother, a trainer. The school suspended the student from being a cheerleader for a year, saying that punishment was necessary to “avoid chaos” and maintain a “team environment”. The student sued the school district, winning a major victory at the 3rd Circuit Court of Appeals in the United States in Philadelphia. The court said the First Amendment did not allow public schools to punish students for speaking outside schools. The following month, at its first private conference after the holiday, the Supreme Court will consider whether to hear the case, Mahanoy Area School District v. BL, No. 20-255. The 3rd Circuit’s decision is in tension with the decisions of several other courts, and such divisions often invite Supreme Court review. In urging the judges to hear the case, the school district said administrators across the country needed a definitive Supreme Court decision on their power to discipline students for what they say outside of school. “The issue raised is a recurring one and has become even more urgent as COVID-19 forced schools to operate online,” said a statement from the school district. “Only this court can resolve the First Amendment issue that plagues the country’s nearly 100,000 public schools.” Justin Driver, a law professor at Yale and author of “The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind,” agreed with the school district to some extent. “It is difficult to overstate what is at stake on this constitutional issue, “he said. But he added that schools should not tell students what they could say when they were not at school. “In the modern era, a huge percentage of minors’ speech occurs off campus, but online,” he said. “The court decisions that allow schools to regulate off-campus speech that criticizes public schools are antithetical to the First Amendment. These decisions enable schools to contact any student’s home and declare critical statements prohibited, something that should deeply alarm all Americans. ” precedent is from a different time. In 1969, in the case of Tinker v. Des Moines Independent Community School District, the Supreme Court allowed students to wear black armbands to protest the Vietnam War, but said the disturbing speech, at least on school grounds, could be punished. Making distinctions between what students say on campus and abroad was easier in 1969, before the rise of social media. Today, most courts allow public schools to discipline students for posting on social media, as long as they are linked to school activities and threaten to disturb them. A split panel of three 3rd Circuit judges took a different approach, announcing that a categorical rule panel would appear to limit the ability of public schools to address many types of disruptive speech by students on social media, including racist threats and cyberbullying. In a competing opinion, Judge Thomas L. Ambro wrote that he would have decided on the student for more limited reasons. It would have been sufficient, he said, to say that his speech was protected by the First Amendment because it did not interrupt school activities. Most were wrong, he said, in protecting all speech off campus. In a petition urging the Supreme Court to hear the school district’s appeal, the Pennsylvania School Councils Association said the line drawn by the 3rd Circuit was too crude. disruptive or harmful tweet is sent from the school cafeteria or after the student has crossed the street on their walk home, it has the same impact, “the statement said.” The formal 3rd Circuit rule renders schools powerless whenever a hateful message is launched off-campus. “The student, represented by lawyers from the American Civil Liberties Union, told the Supreme Court that the First Amendment protected her” colorful expression of frustration, made in an ephemeral Snapchat on her personal social media, in an end weekend, off campus, without any threat, harassment or mention of her school, and that did not cause or threaten any disruption from her school. “The briefing focused on that last point, and did not waste much time defending the broader approach of the 3rd Circuit. The Supreme Court has a reputation for protecting First Amendment rights. Court President John Roberts, in an appearance at a college right last year, he described himself as “probably the most aggressive advocate of the First Amendment in court now.” But the court has methodically cut students’ rights to the First Amendment since the Tinker Decision in 1969. And in the last major decision of the In 2007, on a student freedom of speech court, Roberts wrote the majority opinion, supporting a principal who suspended a student for displaying a banner that said “Bong Hits 4 Jesus.” He said it suggested a blind spot. one main area where Chief Justice Roberts’s defense of the First Amendment is remarkably lax: student speech, ”he said.“ I fervently hope that Roberts will regain his taste for the First Amendment when the court finally resolves this urgent matter. ” This article was originally published in The New York Times. (C) 2020 The New York Times Company