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 decision.
The case involved a disgruntled cheerleader B.L. was a student at Mahanoy Area High School in Mahanoy City, Pennsylvania, who tied out for the school’s varsity cheerleading squad. When she did not make the varsity cheer, she was offered a spot on the cheerleading squad’s junior varsity team. Justice Stephen Breyer states with considerable restraint “B.L. did not accept the coach’s decision with good grace, particularly because the squad coaches had placed an entering freshman on the varsity team.”
B.L. met a friend at the Cocoa Hut, a local convenience store, and used her phone to post two photos on Snapchat. In the first image, both B. L. and her friend are shown with middle fingers raised with the caption: “F**k school fuck softball f**k cheer f**k everything.” In the second image, there is just a caption, which read: “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?”
Despite a later apology, the school B. L. from the junior varsity cheerleading squad for the upcoming year.
The Court says that her comments were protected. 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 stu- dent’s unpopular expression, especially when the expres- sion 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 justi- fications 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 criti- cal difference. This case can, however, provide one example.
Here is the decision: https://www.supremecourt.gov/opinions/20pdf/20-255_g3bi.pdf
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