Thread by @stevenmazie

Mahanoy v. BL, the cheerleader speech case, begins now here:

c-span.org/video/?510036-…

Roberts to Lisa Blatt: what about political or religious speech that is directed at the school? Can that be regulated?

Blatt: no, b/c it's not directed to a school audience

Roberts: well but what if a Snapchat is critical of a school or a teacher?

Blatt: schools can't punish message, but they can punish the manner (no picketing)

Justice Thomas: what if a student said some of those things in a social studies class?

Blatt: Tinker is always context-specific — depends on who hears it, etc. Could be interference and disruptive to criticize a teacher during class as opposed to during office hours

Thomas: why does it make any difference where/when you post something? at a sleepover or in class

Blatt: "Internet doesn't have a geography"

Thomas: what about comments on Black Lives Matter, Antifa, Proud Boys, etc.?

Blatt: messages are protected, but terrorizing a black student isn't

Justice Breyer: cheerleader used swear words but "my goodness every school in the country would be doing nothing but punishing" if schools can punish this kind of thing without a disruption

Blatt: a person who uses foul language and berates the team is "somebody you wouldn't want at the bottom of the [cheer] pyramid"

Justice Alito, returning to Roberts's q: what about plausibly disruptive speech that refers to the school or a teacher but that is fair political commentary?

Alito: I'm worried how this is going to be implemented; schools need to be governed by a clear rule if they can police off-campus speech

Blatt: it must be more than being offended; needs to be "severe or persistent"

Alito not satisfied by that: what if a student misgenders a trans student; can the school do something about that?

Blatt: school can tell the transphobic student to use their name rather than their pronoun.

(huh)

Justice Sotomayor: Tinker isn't any clearer a rule than any of the others you are criticizing — you can't punish kids for cursing at home or on their way to school but you CAN punish them for cursing in context of cheer?

Blatt: yes

Sotomayor: kids talk to classmates and most conversations are about school, so why should it matter than the cheer coach took offense, and how is that possibly a substantial disruption to the school?

Blatt: she's a cheerleader and a school ambassador that teaches respect, not just cheer

Blatt: it's "silly and arbitrary" that speech takes place off campus is treated differently

Justice Kagan: you're relying on a view of Tinker the lower courts have not adopted; ban on wearing shirts with pol messages to school have been UPHELD by lower courts — so school CAN ban political msgs that cause disruptions

Kagan: we should tell courts that Tinker rules both on and off campus, but religious and political speech must be respected unless it targets a particular student?

Blatt: fighting words aren't protected...

Gorsuch: "I'm confused."

Gorsuch: explain what your test is, please

Blatt: speech causing race riots and student walkouts can be limited wherever it originates; but must be an actual plausible risk

Blatt: she could berate her coaches all day long if other side wins

Justice Kavanaugh (who has coached girls' basketball): context here is a team and a coach and not just school generally: making the team "is so important to their lives"; what bothers me is that the punishment was not tailored to the offense; a year suspension is excessive.

Blatt: Michael Jordan was upset when he was cut, but he was respectful to his coaches eventually

Kav: but in the moment you've got to understand why kids are upset when they don't make the team.

Kav: enough to remand?

Blatt: sure

Justice Barrett: nothing in Tinker suggests it applies outside the school; you want us to extend it for "good policy reasons" but what's the doctrinal support?

Blatt: 100 yrs of case law that schools could regulate anything...

Barrett: schools seem to be abusing their authority to police speech; nothing in the First Am. prohibits soft discipline like "we're aware of the Snapchat" and please be good.

Blatt wrap-up: cheerleader wants a "Frankenstein's monster" of doctrines "all smushed together"; students shouldn't be able to place their speech off-limits just by stepping off campus.

Malcolm Stewart of the SG's office begins, arguing for school too.

Roberts again asks about political speech directed at the school such as "opposing a school referendum because Ms. Jones is a terrible teacher"

Stewart: criticizing a teacher turns it into school speech but doesn't qualify as a substantial disruption

Thomas: should we analyze the rules of a team, as Kav alluded to, as opposed to general rules that apply to a school population?

Stewart: yes; she was suspended from cheer, not from school; so it was an appropriate response

Thomas: can a "material disruption" be localized to the team rather than the school?

Stewart: yes; impossible to run a sports team otherwise

Breyer: "I can't write a treatise on the First Am in this case"; say school has some authority but outside of school is primarily realm of parents; "well, what should I do?"

Stewart: no bright line btw on and off campus speech

Stewart: part of purpose of cheerleading is teaching good citizenship and cooperation

Alito: what if a student outside of school makes no reference to school but remarks are so offensive that they predictably cause controversy in the school; can school punish?

Stewart: no

Alito: so speech must intentionally target someone to be punishable; does it cross the line whenever is mentions someone?

Stewart: no, not really

Alito: that's "a very nebulous line" that does not seem to be very protective of free speech

Stewart: use proximate cause to see if it's really the speaker's fault

Kagan: is the speech in this case school speech?

Stewart: it probably falls over the line, yes

Kagan: so anything that mentions a school is school speech as this is pretty generic

Kagan "can I give you a few hypotheticals"

- emails classmates to skip school
- urges kids to refuse to do any work till syll diversified
- tweets there's pervasive homophobia at school and students should stay away
- tweets "school really stinks" and students should stay away"

All are school speech, in eyes of Stewart.

(Kagan really showing how political and other types of speech can overlap with school speech that would be regulable.)

Kavanaugh: strongly shares Justice Breyer's instincts about no treatise writing — maybe Court should just say there's no bright line between on and off campus speech and there may be different considerations for extracurriculars; and send back to lower court to reassess

Barrett returns to Kagan hypothetical: is it "speech" to pass on an answer key?

S: yes

B: what about a threat to open fire in school?

S: it's speech, but threats not protected

Barrett: could a school seek a waiver of 1A rights to participate in something like cheer?

S: no, you can't sign away your constitutional rights

Stewart wrap-up: it's constitutionally protected to say "fuck DoJ fuck Supreme Court" but saying that from within the DoJ is another matter

David Cole, ACLU lawyer for the cheerleader, begins

Cole: schools can punish swearing in school but not at a convenience store or at home; parents have fundamental rights to raise their children as they choose

Cole: voice frustrations to friends

Roberts: the sharp line between on-campus and off-campus; how does that fit with modern technology? what about a post sent from the park and read in the cafeteria?

Cole: Internet doesn't change that; if school can regulate swear word or something disruptive "kids would carry schoolhouse with them wherever they go" and their freedom would wither

Roberts asks about Cole's claim that standards can be "adjusted for youth and context"

Cole: don't need blunt instrument of Tinker to do this; regulation of threats, cheating, etc is permitted otherwise

Cole: outside of school supervision, freedom of speech prevails

Thomas: isn't the location of the conduct complicated by social media and Internet; how do you locate the conduct in school vs out of school?

Cole: by looking at whether it's done in a context when students are supervised by school authorities

Thomas: is the location where it's posted, or where it's read?

Cole: where it's posted. Schools can ban cell phones inside the school building to prevent students from reading/accessing any speech.

Breyer: today schools serve more purposes, including after-school activities, so how do I get a standard out of that? "I'm frightened to death of writing a standard."

Cole: it's important to have clear lines. If it's within the context of school supervision, Tinker applies. If not, it doesn't. School shouldn't have discretion to regulate speech outside of school.

Cole: "very, very dangerous proposition" if schools can punish any speech posted over the weekend that it deems disruptive.

Alito: we could dismiss the case, but could say: Tinker applies in school, nothing one way or another about student speech outside school; look at colorful language here but boils down to "I have no respect for the school, cheer squad"; can't punish for that off-campus speech

Cole: should the speech rights of young people be constrained throughout their lives as much as they are in school? Kids shouldn't have to carry that with them "when they're hanging out with their friends".

Cole: let's give "kids the breathing space they need" — even to talk about school — without fear that an administrator would punish them.

Alito: what about bullying?

Cole: there are bullying codes around the country; they can punish those who bully in ways that violate a constitutional bar on bullying ("severe or pervasive interpersonal aggression").

Sotomayor: the problem with your line drawing is student speech doesn't fall into carve-outs; eg: "you're so ugly; why are you even alive?" is school powerless to regulate that?

Cole: yes; that's bullying

Sotomayor: "counsel please, stop - what's aggressive about that?"

You're asking schools to determine what's constitutional?

Sotomayor: can you ask students on particular teams not to post negative comments on social media?

Cole: that's outside scope of the question presented in the case, but yes, teams have leeway to impose conditions on players.

Kagan: you're making Tinker a geographic test, and it's possible to read it that way, but maybe it's about "what's necessary for a school's learning environment" so then, why not acknowledge that?

Cole: it's not a geographic but a supervisory test

Cole: an article on teen pregnancy that could be regulated in school (Hazelwood case) cannot be barred by the school if put out privately.

Kagan: schools have more latitude over this kind of speech than other govt officials; hypo: lists of girls by physical attributes or sexual activity, can that be regulated? can't put someone in jail for that, but can't school address it?

Cole: yes, school can

Kagan: what about SG's test that there's a distinction between out and in-school, but if it's about the school, it's under Tinker

Cole: that's the vaguest test, asks what is essential to any school program

Once again, Justice Gorsuch shows his love for the word
"delta" — as in "difference."

Cole: bullying can be regulated when it is defined as severe aggression that interferes with educational opportunity; as opposed to something that could be characterized as mere disruption like a sign that says "blue lives matter more".

Cole: need to make distinctions between mere offense or hurt feelings and actual bullying to protect freedom of speech.

Gorsuch suggests, along with many other justices, that a narrow opinion is inevitable rather than a broad declaration about student free speech.

Kavanaugh: "it's unfortunate this case spiraled the way it did"; repeats feeling that it's ok for kids to blow off steam; v different to speak of a team and not a school; practical difference btw the competing tests

Cole: she just blew off steam "as you did in games and as I did in races"

Kav: what about a racial epithet about the coach?

Cole: they could punish her or bring her in and discuss it with her

Kav: we could answer yes or no to whether Tinker applies off campus; if no, there are still things schools can do to police harassment, bullying, etc.

Cole wrap-up: off-campus threats and bullying *can* be regulated, but we need to protect political speech, whistleblowing and blowing off steam even if it causes a disruption.

Cole: side with us, or "students can never speak candidly with their friends" again.

Blatt's fiery rebuttal: "madness, confusion and chaos" if you take Cole's test of "under school supervision". "Please don't do this to schools!"

Oral argument is done. The justices seem a bit at sea. Many seemed inclined to a narrow ruling, perhaps reversing the 3rd circuit's view that Tinker categorically does not apply off campus & remanding case to see if the Snap really was a substantial disruption.