For those seeking to portray the Supreme Court as, to use President Joe Biden’s words, “out of whack,” the Court itself continued to disappoint critics this week with another major and nearly unanimous decision in the long-awaited decision in Mahonoy v. B.L. While many of us in the free speech community hoped for a bright-line decision protecting student speech, the decision sharply rebuts the sweeping claims of schools (from high schools to universities) of authority to monitor and punish off-campus speech. What is striking about the language is that the Court secures near unanimous decision by limiting the reach of the decision.
Free speech victories often come on behalf of a motley crew of litigants from animal sacrificers to Neo-Nazis to, this week, foul-mouthed high school cheerleaders.
The fact is that popular speech rarely needs protection. In the case of Brandi Levy, the cheerleader in Mahonoy v. B.L, she was denied the right to swear a blue streak after being rejected for the varsity squad at Mahanoy Area High School in Mahanoy City, Pennsylvania.
The Supreme Court ruled Wednesday 8-1 in her favor and, while she remains silent Levy most likely had a fittingly spicy way of acknowledging her major win for free speech. Notably, while Levy was suspended from the team, there will likely be no repercussions for the school administrators who violated her free speech rights and litigated this ill-conceived case all the way to the Supreme Court. There are rarely any costs to school officials who deny free speech to students, even after countervailing decisions.
In some respects, science was as much on the former high school student’s side as the law. Studies have shown that swearing is not only a sign of intelligence but helps alleviate pain. If so, Levy healed herself with a profane response after being told that she would not make the varsity cheerleading squad. She and a friend vented at the Cocoa Hut, a local convenience store on Snapchat with a photo showing them with middle fingers raised with the caption: “F**k school f**k softball f**k cheer f**k everything.” Despite her later apology, the school suspended her from cheerleading for a year
From high schools to universities, educators have been claiming expanding authority to monitor and punish students for statements made out-of-school or on social media.
Last month, the University of Oregon became the latest school criticized for rules regulating speech of students made off-campus.
The Court says that her comments were protected. In his majority opinion, Justice Stephen Breyer noted that it “might be tempting to dismiss B.L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary.” Breyer flips the narrative of schools on having a need to protect students from disturbing or disruptive speech:
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.)
However, the Court leaves much on the field in terms of future cases — a move that may have put the interest in achieving near unanimity above achieving clarity.
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. We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference. This case can, however, provide one example.
One of the notable aspects of the case is the vote of Justice Sonia Sotomayor. When she was nominated, I was most concerned about her views on free speech given her vote on the Second Circuit to uphold punishment of a student for out-of-school comments in Doninger v. Niehoff.
This was my second ranked case in importance of the final pending cases with Fulton being the highest ranked this month. The question is whether the three liberal justices voting with their colleagues will now necessitate a call for adding seven rather than just four new justices to guarantee a liberal majority. The problem with packing courts is that they tend never to be packed enough.
Here is the decision: https://www.supremecourt.gov/opinions/20pdf/20-255_g3bi.pdf
A shorter version of this column appeared on Fox.com