pic via the ACLU's Twitter. You can buy it from them, on a shirt!

Yesterday, the Supreme Court said "Fuck Manahoy Area School District."

Okay, I might be paraphrasing.

In one of the last days of the 2021 SCOTUS season, we finally got to the end of the case of the cussy cheerleader — and our cussy cheerleader was vindicated!

In Manahoy Area School District v. BL, the Court ruled 8-1 in favor of Brandi Levy, the cheerleader who was suspended from the squad for a year for writing "fuck softball fuck cheer fuck everything" on Snapchat. On the weekend. When she wasn't at school. Or at a school-related activity. (And don't you worry, we'll get to that one dissent later!)

Honestly, this case has maybe the dumbest facts of any SCOTUS case this term, and that is not at all the fault of Brandi Levy. It's the fault of the parents, coaches, and school administrators who were SO INCENSED a teenager would deign to use profanity and thus degrade the cheer squad so.

This never should have gotten anywhere near the Supreme Court. Someone, at some stage, should have realized just how ridiculous it was that the school district spent four years and probably hundreds of thousands of dollars defending a stupid, sexist decision and hiring super expensive SCOTUS lawyers to defend its fuckery.

But, hey, at least they lost.

I hope the lower court makes the school district pay Ms. Levy's lawyers at the ACLU their well-earned attorney's fees.


The Opinion

Before we really get into it, I should remind y'all that the oral argument in this case was a shitshow. It definitely seemed like there were at least five votes in Ms. Levy's favor, but none of the justices seemed to have a coherent rule about when schools should be able to punish off-campus speech.

In the end, the Court did what most of us thought it was going to do and ruled against the school district, while declining to give us a new rule about when schools can and cannot punish students for speech that happens entirely off-campus.

[W]e 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. [...] 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.

Were I a SCOTUS justice, this is the result I would have voted for, but I definitely would have had to write a concurrence about how the majority was far too broad with its language about allowing punishment for off-campus speech. I am admittedly an outlier, particularly on the left, and don't really think schools have any right to punish kids for speech that doesn't happen at school. (And lots of the examples the court gives, like cheating on schoolwork and hacking school computers, aren't actually speech!) I'm generally not comfortable with the government — and yes, that includes public schools — choosing what speech does and does not deserve protection. But I digress.

But even though I don't exactly love all of the language in BL, for now, this might be the best approach. Law always lags behind technology and takes a while to catch up. That's why it wasn't until 2012 that the Court said it counts as a search if cops track your movements through your cell phone's GPS. And it's infuriating, particularly for those of us who actually understand the technology in question. But SCOTUS articulating a bright-line rule when it's still trying to call its grandson for help downloading YouTube understand the ramifications of recent developments is pretty much never a good idea.

In the majority opinion, written by Justice Stephen Breyer, the Court admits as much.

Particularly given the advent of computer-based learning, we hesitate to determine precisely which of many school-related off-campus activities belong on such a list. Neither do we now know how such a list might vary, depending upon a student's age, the nature of the school's off-campus activity, or the impact upon the school itself. Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as "off campus" speech and whether or how ordinary First Amendment standards must give way off campus to a school's special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community.

These types of cases are always going to be very fact-specific, and that's what the Court is leaving room for here. I don't love the "substantial disruption" standard that has been used since the 1960s, because it could still allow schools to punish, for example, off-campus political speech that later causes a "disruption" at school. But that standard is also nothing new.

Shockingly — and this is probably the only time I will ever write these words in this order — Justice Samuel Alito wrote a good concurrence. Alito asks an important question the Court has never directly addressed in its school free speech cases: "Why does the First Amendment ever allow the free-speech rights of public school students to be restricted to a greater extent than the rights of other juveniles who do not attend a public school?"

Of course, there are times when teachers must be able to restrict student speech — for example, when teaching a class. But why should students, most of whom are legally required to attend school, be forced give up their rights to free speech and expression on their own time?

But when a public school regulates what students say or write when they are not on school grounds and are not participating in a school program, the school has the obligation to answer the question with which I began: Why should enrollment in a public school result in the diminution of a student's free-speech rights?

Alito also reminds us that "[s]peech cannot be suppressed just because it expresses thoughts or sentiments that others find upsetting," and reminds schools to stop being so dumb.

If today's decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.

Oh, Clarence Thomas ...

A lot of 8-1 cases involve dissents from Clarence Thomas, and BL is no exception. You just know this is going to be good.

Thomas's dissent is ... something. It's actually kind of hilarious for a First Amendment nerd like me, until I remind myself that this is something an actual Supreme Court justice actually wrote. In the year 2021.

It starts off strong, with the 73-year-old justice finding himself unable to type (or have one of his law clerks type) the word "fuck."

Text:

B. L., a high school student, sent a profanity-laced message to hundreds of people, including classmates and teammates. The message included a picture of B. L. raising her middle finger and captioned "F*** school" and "f*** cheer." This message was juxtaposed with another, which explained that B. L. was frustrated that she failed to make the varsity cheerleading squad. The cheerleading coach responded by disciplining B. L.

So yeah. It starts strong.

Also: fuck fuck fuckity fuck fuck fuck. (Hi mom.)

It is not exactly shocking that Clarence Thomas gave us a draconian dissent. He doesn't really think kids in schools have "rights." Thomas has always said that basically all student free speech cases since 1943 were wrongly decided, because students have no free speech rights. In a hilarious application of "originalism," he even thinks it's cool for schools to beat students, since that's what they did at the time the Constitution was ratified. And, in this dissent, Thomas goes back to what schools were allowed to do in the 1800s, when the 14th Amendment was ratified. Because, you see, Clarence Thomas is an originalist ... as long as the "originalism" in question leads to a fascist result.

Unsurprisingly, Thomas goes further than disagreeing with the majority's conclusion, even arguing that schools should be able to punish students for pretty much any off-campus speech the school deems detrimental.

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.

Ya know what? I'll let Alito respond to Thomas's pearl-clutching:

There are parents who would not have been pleased with B. L.'s language and gesture, but whatever B. L.'s parents thought about what she did, it is not reasonable to infer that they gave the school the authority to regulate her choice of language when she was off school premises and not engaged in any school activity. And B. L.'s school does not claim that it possesses or makes any effort to exercise the authority to regulate the vocabulary and gestures of all its students 24 hours a day and 365 days a year.

So that's fun!

Free speech is great, isn't it?

Amazingly, the same people who bitch and moan (inaccurately) that the ACLU has "abandoned" its free speech principles by not defending enough literal Nazis are now whining that the ACLU dared to make a shirt with the word "fuck" on it, in honor of this case.

Hypocrisy really doesn't get much more delicious than that.

Here's the opinion! (And Thomas's batshit dissent.)


Follow Jamie on Twitter for more amazing legal analysis and lots of the word "fuck."

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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