Save the cheerleader, save the First Amendment.
"fuck school fuck softball fuck cheer fuck everything."
Those words, posted by a frustrated cheerleader to social media, are now in front of the Supreme Court.
This week, the Court heard arguments in Mahanoy Area School District v. B.L., a case that could shape students' rights for a generation.
Here's what happened
In 2017, Brandi Levy was a sophomore at Mahanoy Area HIgh School in Pennsylvania. She tried out for the varsity cheerleading squad, didn't make the cut, and was assigned to the junior varsity team instead. Frustrated, she posted a picture of herself and a friend flipping off the camera to Snapchat, with the caption "fuck school fuck softball fuck cheer fuck everything."
Someone sent another cheerleader a screenshot of the post and she narced to her mom, who was one of the cheerleading coaches. While one would hope that grown-ass adults would be above wading into teenage cheerleading drama, they instead were the ones who esalated things.
This is normal teenager stuff that happens literally every day. But the adults found themselves incapable of being the grown-ups in the room. In the end, Levy (now attending Bloomsburg University of Pennsylvania ) got kicked off of the cheerleading squad for a year as punishment for ... using a swear on the internet.
Okay, now we can continue.
Schools and speech
Levy was off-campus — and it was the weekend — when she posted her snap, so the issue here is what authority the school has to punish her. And this is, believe it or not, the first Supreme Court case to really get into students' free speech rights on social media.
As social media became ubiquitous for young people, public schools and courts alike have struggled with what to do about it. Issues about speech outside of school run the gamut in terms of seriousness. One the one side, you have things like a cheerleader using a swear word on the internet outside of school, which should — fairly obviously, IMO — be outside the reach of school discipline. But, on the other end of the spectrum, you have bullying so pervasive it drives children to suicide.
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students… are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.
Since Tinker, courts have looked at whether speech happened on-campus or off-campus as an important component of when schools can punish student speech. Under the traditional case law, schools can't punish off-campus speech unless it's at a school-related event. This was the justification the Court used in 2007 to uphold the "BONG HiTS 4 JESUS" kid's suspension in Morse v. Frederick — he held up said banner at a school-sponsored event.
This case is about more than an outsized punishment for something a public school has no business intervening in. If the school district has its way, schools will be able to punish students for all kinds of speech, no matter where or when or how it happens, if it "disrupts" the school environment.
How this one ends up is anyboody's guess — especially because this is exactly the type of case that can result in strange bedfellows. The traditional liberal and conservative labels don't always hold when it comes to issues of free speech. The ACLU's national legal director, David Cole, who argued the case on behalf of Brandi Levy, told the Washington Post that, "You won't find another case in the past decade with such a diverse range of groups on the same side. We have support from the right to the left, from students to administrators, from civil rights groups, religious liberty organizations and red states." The Biden administration, on the other hand, sided with the school.
Right now, the only justice whose vote seems clear is Clarence Thomas, who wrote a concurrence in Morse to say that he thinks students have no free speech rights whatsoever and Tinker was wrongly decided. Because of course he did.
At the argument, most of the judges seemed to struggle weighing the facts of this case against any broader rules the Court could set. The justices acknowledged this, with Justice Breyer saying, "As far as I can see, I can't write a treatise on the First Amendment in this case." Justice Kegstand agreed, saying he "strongly share[d] Justice Breyer's instincts [...] that we probably can't write a treatise here and shouldn't write a treatise here and can't foresee all the things that could arise in a lot of the hypotheticals that have been raised."
Based on how oral arguments went, the best outcome would probably be SCOTUS punting the issue of punishing off-campus speech and just saying Levy's speech was protected. This is a complicated issue and a confused Supreme Court issuing a ruling when it doesn't fully grasp the nuances of free speech in the age of the internet can't be a good thing for anyone.
Fuck this school, fuck this case, fuck everything
This case is a school overstepping its bounds and punishing a teenager for normal teenage behavior that happened outside of school. The Court doesn't need to write a treatise on First Amendment law to see that the outcome here was wrong.
Brandi Levy vented about something frustrating on social media. She didn't even name, let alone bully, any other students. She did a normal thing that other normal teens do every damn day.
If anyone's behavior should be scrutinized here, it isn't the 14-year-old girl.
This isn't a case about cheerleading. It isn't even really a case about Brandi Levy.
It's a case about adults who should know better.
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New York State Rifle & Pistol Association Inc. v Corlett looks like it will be a bloodbath.
At the very least, this case is almost certainly going to make it easier for people to carry guns with them in public. And at the worst, it could be used to gut any number of gun control laws across the country.
Concealed carry for everyone!
New York and seven other states make people show "good cause" to get a concealed carry permit. More than one-quarter of the US population lives in those states.
Concealed carry laws were some of the first firearms restrictions in the country and the New York law at issue in this case has been on the books since 1913. If you want to carry a gun in public for something like going to a shooting range, you can get a limited license to carry it specifically for that purpose. But to get an unrestricted concealed carry license, you have to "show a special need for self-protection distinguishable from that of the general community."
Now, the New York State Rifle & Pistol Association and two men who were denied concealed carry permits are arguing that "law-abiding citizens" have a god-given Second Amendment right to take their guns wherever they please — and the Supreme Court appears poised to agree with them. The crazies are represented by former George W. Bush solicitor general and go-to Republican lawyer Paul Clement.
The fact that the Court took the case at all indicates which way it's going to rule. The Second Circuit upheld the lower court's dismissal of Corlett and courts that get to pick and choose which cases to hear don't tend to agree to hear something just to say, "Great job! Well done!"
There's also the little matter of our current Court ...
Laws, judges, and guns
The text of the Second Amendment reads in full, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
A lot of people don't realize this, but the first Supreme Court case to recognize an individual right to bear arms wasn't decided until 2008. And, spoiler alert, it wasn't good.
Until recently, the controlling Supreme Court case was US v Miller, which held that the Second Amendment was a collective right, not an individual right, and looked at whether the law in question had "some reasonable relationship to the preservation or efficiency of a well regulated militia."
In DC v. Heller, the Supreme Court ruled for the first time that the Second Amendment protects the individual right to own guns. The Scalia-drafted opinion, while touting itself as "textualist," almost entirely ignored the part about the "well regulated militia." Striking down DC's handgun ban, the Court ruled that the Second Amendment gives individuals the right to own and use guns.
Justice John Paul Stevens, who served on the Court for 35 years, called Heller "the Supreme Court's worst decision of [his] tenure." And, in a memoir written after his retirement, Justice Stevens said that Anthony Kennedy, then the Court's swing vote, was able to get "some important changes" made to Scalia's original draft of the Heller opinion.
Justice Kennedy's hedging is what likely resulted in the passages in Heller that offered moderation, like the part about how "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms[,]" and other "presumptively lawful regulatory measures[.]"
Our new Court is unlikely to have any such qualms about obliterating our nation's gun control laws. At least two of Trump's three Supreme Court appointees have already written about how much they love guns. In 2011, on the DC Circuit, Justice Kegstand dissented in another case styled Heller v. DC, arguing that DC's gun registration requirement and ban on semi-automatic assault rifles were unconstitutional. And on the Seventh Circuit in 2019, Amy Bony Carrot declared in her Kanter v. Barr dissent that it was unconstitutional to prevent felons from owning guns — at least without "proving the felon is violent." These dissents put them to the right of even Scalia's opinion in Heller.
Yup, it's all bad.
I'm sorry. I have no glimmer of hope to offer with this one. Unless Democrats magically grow spines and do a little court-packing, there is no way to save us from the horrors this Supreme Court is going to make a reality.
The Heller and McDonald opinions, while terrible, at least included some caveats. With no voice of moderation left on the right side of the SCOTUS bench, there may be no end to what formerly "presumptively lawful" gun control laws this Court obliterates.
But hey, maybe it will be fun to see an associate justice of the Supreme Court stand behind the bench while shouting the words "I LIKE GUNS, OKAY?!"
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Welcome to the Supreme Court's decision in Jones v. Mississippi.
Yesterday, the Supreme Court decided Jones v. Mississippi, a case about sentencing children to life in prison without the possibility of parole.
Authored by none other than Justice Brett Kavanaugh, the majority opinion guts existing precedent on juvenile life without parole and allows states like Mississippi to keep sending children to prison for the rest of their lives, no matter how young they were at the time of the crime and no matter what they do to rehabilitate themselves.
But Brett Kavanaugh, you ask? Wasn't he ... yes.
Like Sonia Sotomayor says in her dissent,
The Eighth Amendment does not excuse children's crimes, nor does it shield them from all punishment. It does, however, demand that most children be spared from punishments that "give no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope."
Jones and other juvenile offenders like him seek only the possibility of parole. Not the certainty of release, but the opportunity, at some point in their lives, to show a parole board all they have done to rehabilitate themselves and to ask for a second chance. Jones recognizes that the parole board may ultimately decide he must spend his entire life behind bars. He simply requests that the State not make the judgment at the outset that he never will be fit to reenter society. The Eighth Amendment requires that most juvenile offenders be given this small hope for some years of life outside prison walls.
How we got here
To fully understand yesterday's opinion, first, we need to go back in time.
Starting in 2005, a series of Supreme Court decisions found that the Eighth Amendment's prohibition on "cruel and unusual punishment" prohibited certain extreme sentences for children. For a while, things continued to move in the right direction.
In 2005, the Court determined in Roper v. Simmons that the death penalty was unconstitutional for people who had been under 18 at the time of the crime.
In 2010, Graham v. Florida banned juvenile life without parole in all cases except homicide.
In 2012, SCOTUS ruled in Miller v. Alabama that mandatory sentences of life without parole for juveniles were unconstitutional.
And in 2016, Montgomery v. Louisiana held that Miller should be applied retroactively (that is, children who received mandatory life without parole sentences before Miller was decided were entitled to new sentencing hearings).
Brett Jones was convicted of murdering his grandfather. He had just turned 15 at the time of the crime.
When Jones was convicted, Mississippi had a mandatory sentence of life without parole. After Miller was decided, the Mississippi Supreme Court ordered Jones a new sentencing hearing, so a judge could consider Jones's young age at the time of the crime. The sentencing judge, however, kept the sentence of life without parole in place. And now, the Supreme Court has upheld it — and made it even harder for kids to get a fair process in the future.
All of the cases from Roper to Montgomery emphasize that juveniles are, you know, children. Children are less culpable than adults, their brains aren't fully developed, and they can almost always be rehabilitated. Both Miller and Montgomery specifically emphasized that sentencers must distinguish "between the juvenile offender whose crime reflects unfortunate and transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption."
But now, we're going backwards again. This opinion makes it much easier for states to send children to prison for the rest of their lives, with no hope of being released.
So that's awful
The only sanity in yesterday's decision comes from the Court's #BestJustice, Sonia Sotomayor, who dissented. (Sotomayor's dissent was joined by the Court's other libs, Breyer and Kagan.)
The majority, says Sotomayor, "distorts Miller and Montgomery beyond recognition." "Miller," writes Sotomayor, "held that juvenile LWOP sentences must be rare because it is only 'the rare juvenile offender whose crime reflects irreparable corruption.'" Rather than actually follow this precedent, argues Sotomayor,
In the Court's view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of those rare children whose crimes reflect irreparable corruption. Even if the juvenile's crime reflects unfortunate yet transient immaturity, he can be sentenced to die in prison.This conclusion would come as a shock to the Courts in Miller and Montgomery. Miller's essential holding is that "a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect irreparable corruption."
Sotomayor also points out that the vast majority of children sentenced to life without parole are children of color — and the racial disparity in sentencing has only increased since mandatory life without parole for children was banned. Before Miller, 61 percent of children sentenced to life without parole were Black; since Miller, 72 percent of children sentenced to life without parole were Black. Because, in America's criminal justice system, anything punitive that is discretionary will be disproportionately applied to Black people.
As for Mr. Jones, writes Sotomayor,
Today, Jones is 31. His time spent in prison has now eclipsed the childhood he had outside of it. Jones should know that, despite the Court's decision today, what he does in life matters. So, too, do the efforts of the almost 1,500 other juvenile offenders like Jones who are serving LWOP sentences. Of course, nothing can repair the damage their crimes caused. But that is not the question.
The question is whether the State, at some point, must consider whether a juvenile offender has demonstrated maturity and rehabilitation sufficient to merit a chance at life beyond the prison in which he has grown up. For most, the answer is yes.
Yup. It's all bad.
Get used to the horror show, folks. This is what a 6-3 fascist majority looks like.
But hey, I guess we should at least be relieved they didn't just reinstate the death penalty for children or something?
Happy Friday! As payment for this depressing Friday afternoon post, here is a video of my foster kittens.
Here's the opinion. Sotomayor's dissent starts on page 34.
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It is in fact still legal to have an abortion, even in Ohio. And yet somehow your doctor is an 'accomplice' in this legal act.
For the moment, it's still legal in Ohio to have an abortion. And it's still legal to seek an abortion because you are carrying a fetus with Down syndrome. But if you tell your doctor the truth about your reasons for seeking to terminate your pregnancy, he risks going to jail if he provides you that care to which you are entitled under the Fourth Amendment. So the Sixth Circuit would like you to lie to your doctor in the interest of "protecting the Down syndrome community from the stigma it suffers from the practice of Down-syndrome selective abortions."
You got that? A legally privileged conversation between you and your doctor is an attack on a community of people with disabilities. And, oh by the way, you're also participating in a Nazi-style campaign of "eugenics."
It's a really bad decision, and worse still, it's specifically crafted to get Justices John Roberts and Brett Kavanaugh to sign on.
The Sixth Circuit, home to six brand new Trump appointees, has made a major rightward swing in the past four years, which is how a 9-7 majority wound up signing on to an opinion that refers to the doctor in this scenario as an "accomplice."
"By preventing the doctor from joining the woman as a knowing accomplice to her Down-syndrome selective decision making, H.B. 214 prevents this woman from making the doctor a knowing participant (accomplice) in her decision to abort her pregnancy because her fetus has Down syndrome," writes Judge Alice Batchelder, a George H.W. Bush appointee.
The term "accomplice" usually refers to someone abetting an actual crime. But the court goes to great pains to say that it's not criminalizing abortion — it's criminalizing "discrimination" against "the Down syndrome community."
It's a particularly clumsy sleight of hand, since the pregnant person isn't engaging in any legally cognizable form of discrimination. And indeed a pre-viable fetus is not a "person" in the eyes of the law, and thus cannot be a member of any "community." Nonetheless, those nine judges are certain that the statistical absence of babies born with Down syndrome harms that community, and so the state has a compelling interest in barring doctors from providing abortions to women making the entirely legal decision to seek it. And that interest overrides both the First Amendment right to speak openly to one's doctor and the Fourth Amendment right of privacy to access abortion care.
Indeed, the majority makes no bones about it: This opinion supports the right of a state to harass and stigmatize women seeking abortion care and shame them into silence about their decisions.
Moreover, it is questionable whether a woman would willingly announce that motive if she recognized that doing so was hurtful to many in the Down syndrome community. To the extent that H.B. 214 might influence a woman to misrepresent her reason, that would be her personal choice. Regardless, as a practical matter, any burden the woman feels from withholding this reason from the doctor who will perform her abortion is included in the first item on the list. The possibility that a woman, when speaking with the doctor who would perform her abortion, might decide to change her reason (or lie about her reason) on sober second thought is not a separate burden on a woman's ability to choose or obtain an abortion.
This law doesn't even gesture at a fig leaf of medical necessity, like those requiring hospital admitting privileges for doctors providing abortion care, or requiring expensive retrofitting of clinics to make walls as wide as a bowling alley to wheel gurneys through. This is a law that says the state gets to regulate pre-viability abortions for the benefit of someone other than the pregnant person or the fetus. And the court is blessing it using Chief Justice John Roberts's concurrence in last year's June Medical Services v. Russo, in which he seemed to endorse a theory that the only issue in evaluating abortion regulations is whether they place a "substantial obstacle" to abortion access — the state doesn't even have to pretend to be concerned with the health and safety of women or pre-viable fetuses, and there is no need to evaluate whether the law poses an undue burden on women's access to care.
Furthermore, the Sixth Circuit treats as settled law the idea that the state may now regulate pre-viability abortions at will as long as they don't enact "substantial obstacles" to access. And in the majority's opinion, forcing women to lie to their doctors, or find another abortion provider if they've told the truth about their reasons for seeking an abortion, poses no "substantial obstacle" to care.
And even if Justice Roberts sees through this ridiculous ruse, June Medical was a 5-4 decision with Justice Ruth Bader Ginsburg in the majority. What are the odds that Justice Amy Coney Barrett is A-OK with forcing women to lie to their doctors and shaming them for accessing abortion care?
Yeah, it's BAD.
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