Biden Justice Department Sides Against Free Speech Advocates in Big First Amendment Case

[politicallefty]

This is really quite different from other student free speech cases. All of the other major Supreme Court cases that most know of either took place on campus (including Tinker and Fraser) or were during a school-supervised event off campus (Morse v. Frederick). This case is neither. It involves what an individual said on her own time completely outside of school. It's also not threatening or harassing speech, which could potentially raise other First Amendment issues under current jurisprudence. The student was punished simply because someone at the school did not like what she said. Few things are more offensive to the First Amendment.

I'm hopeful the student wins a resounding victory at the Supreme Court. The Justice Department couldn't be more wrong in its brief.

[politicallefty]

This is really quite different from other student free speech cases. All of the other major Supreme Court cases that most know of either took place on campus (including Tinker and Fraser) or were during a school-supervised event off campus (Morse v. Frederick). This case is neither. It involves what an individual said on her own time completely outside of school. It's also not threatening or harassing speech, which could potentially raise other First Amendment issues under current jurisprudence. The student was punished simply because someone at the school did not like what she said. Few things are more offensive to the First Amendment.

I'm hopeful the student wins a resounding victory at the Supreme Court. The Justice Department couldn't be more wrong in its brief.

The student will lose. I can count five votes against the student: Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Alito writes the majority opinion. Thomas writes a concurrence. I don’t know if Roberts makes it 6-3 or joins the liberals in dissent.

I agree that Thomas and Alito are the most likely to vote against the student. Can you provide some evidence beyond simple partisanship for the other potential votes against the student?

I'd also be very surprised if Alito wrote the majority in this opinion, probably the second least likely in a free speech case like this after Thomas. If that were somehow the majority bloc in a 5-4 decision, Thomas would indeed be the senior Justice, but I think it'd have to go to someone that could hold the bloc together, such as Gorsuch or Kavanaugh.  If it was 6-3 against the student, Roberts would probably take the opinion for himself.

[politicallefty]

Pure aggressive partisanship is the reason. Thomas doesn’t care. Thomas could definitely assign it to himself or Alito. The only thing I know is that there are definitely two votes against the student.

Thomas isn't really an aggressive partisan so much as he is an extreme originalist. I would agree that Alito is aggressively partisan though.

Either way, I think we'll have a clearer picture once oral arguments are heard, which will be on Wednesday.

[politicallefty]

This feels like one of those cases to me.  7/2 or perhaps 6/3 in favor of the student with separate Breyer and Alito/Thomas dissents?  Thomas and Alito are the only sure votes for the district.  I don't think Roberts or the Trump appointees will touch this with a 10 foot pole, so the only way for the school district to win is if this somehow sways all 3 liberals to their side.  I have a really hard time imagining the student loses.

I mostly agree except that we don't really know how Barrett will vote. My thoughts have mostly been that she's probably similar to Scalia (apart from his occasional acerbic rhetoric), which I base mostly on the fact that she clerked for Justice Scalia. Until we know more, that's where I'll pretty much default for now. I see no reason to believe otherwise. One big difference, however, is that I don't feel like she's the type to really stick herself out there in the way he did. Scalia joined archliberal Justice Brennan in striking down flag burning bans in Texas v. Johnson. He also referenced The Divine Comedy in his majority opinion protecting violent videos games under the First Amendment.

As for Thomas being a partisan, his comments about free speech related to various platforms like Twitter and Facebook raise certain alarms. They are not those I would expect from a staunch originalist.

[politicallefty]

I listened to the case a few days ago. I'm less sure about what's going to happen now than I was before oral arguments. This current format of oral arguments doesn't give you the same sense of what's going on compared to the traditional format. On the other hand, you do get to hear from all of the Justices, which I do really like (and Justice Thomas isn't playing the traditional role of potted plant). I really do hope the Court will continue with live audio once they go back to traditional oral arguments.

With that said, I do think the likelihood of a more narrow decision is much higher than before oral arguments. It's really hard to parse the oral arguments in this case, but maybe that's because they were having trouble as well. I do think this is sort of hard to figure out because none of the lawyers were arguing for upholding the categorical decision from the Third Circuit. That's quite likely the reason the Court even decided to take up this case. It created a circuit split as to whether Tinker applied off-campus. I'm also not as pessimistic with the liberal Justices either. They did note bullying, but also noted that some states have separate bullying statutes. I don't expect the issue of threats to really be an issue in this case. I expect the Court will say that falls under other areas of First Amendment jurisprudence, such as law enforcement.

I think there's a clear majority that believes the school district was at least overreaching in terms of the punishment (or punishing her at all). Justice Kavanaugh specifically mentioned that he thought a year's suspensions from cheerleading was too far. I think a potential narrow decision could contain the issue to extracurriculars. As to what scope, I have no idea. I think Justice Barrett had a good point about "soft discipline" (i.e. a warning instead of a suspension). If that had happened, this case would be before the Supreme Court. I'm not really seeing a majority for upholding the findings of the Third Circuit though and the Court does seem loath to want to come up with a new standard for off-campus speech.

What I found surprising is that Alito seemed particularly concerned about free speech rights and allowing the school district to have vague discretion over punishing students for exercising their free speech rights. He seemed to take issue with a lot of what the school district was arguing for.

Based on oral arguments, I'm not really seeing a categorical decision with a bright line like the Third Circuit ruled. Unfortunately, this is not the Warren Court. However, I think there's a strong majority in support of the student in her particular case (I can count as many as 7-8). I feel there's an instinct amongst the Justices that punishing this student for what she did was too far and a violation of her free speech rights. The question then is over what issues the schools can have authority over off-campus. I think the main issues are over things like threats and bullying (particularly cyberbullying). I don't see the Court giving the schools carte blanche authority over those issues, particularly if there are no laws in place (which would almost entirely concern bullying). I'm really not sure how the Court is going to handle this.

[politicallefty]

Based on oral arguments, I'm not really seeing a categorical decision with a bright line like the Third Circuit ruled. Unfortunately, this is not the Warren Court. However, I think there's a strong majority in support of the student in her particular case (I can count as many as 7-8). I feel there's an instinct amongst the Justices that punishing this student for what she did was too far and a violation of her free speech rights. The question then is over what issues the schools can have authority over off-campus. I think the main issues are over things like threats and bullying (particularly cyberbullying). I don't see the Court giving the schools carte blanche authority over those issues, particularly if there are no laws in place (which would almost entirely concern bullying). I'm really not sure how the Court is going to handle this.

Not too bad, eh? I think the biggest surprises were Justice Breyer writing and not more Justices writing concurrences giving their thoughts.


Overall, I'm pleased with the decision, although I think the Court should have gone further in protecting the free speech rights of students. Upholding the Third Circuit entirely was never realistic though. But the First Amendment stands strong, as it should. It's a resounding victory for the student in this case. Even without bright lines though, the Court did seem to lay out some basic examples as to where the school could regulate off-campus speech, but they do seem to be quite limited. I think that could have a chilling effect on other schools attempting to do what this school district did and I think that's what the Court wants. While the Court did find the "substantial disruption" test from Tinker applies to off-campus speech, what constitutes "substantial disruption" is quite different off-campus versus on-campus and there are also other factors to consider for off-campus. I think the bottom line that shows that this was a more significant case is this:

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.

I would note page 7 of the opinion, which notes the three features that limit how schools can regulate off-campus speech as opposed to on-campus speech.

I also have to say that I was surprised by Justice Alito's concurrence (which was joined by Gorsuch). While it did have some notes of originalism and a bit more Blackstone than I'd like and I wouldn't have attached my name to his concurrence for a number of reasons, it was pretty good overall. And he did make a very good point at the end:

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.

As for Justice Thomas, wow. He's really out there. I mean, I knew he wasn't a fan of Tinker and student free speech rights, but this shows how much of an extremist he really is. According to his dissent, he doesn't appear to be a fan of West Virginia State Board of Education v. Barnette either.