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

[I’m not Stu]

The case will be heard in 30 minutes.

[Skill and Chance]

Kavanaugh's comments in oral argument were hardcore in favor of the student.  Barrett thinks schools are abusing their authority to police speech.  Even Alito raised concerns of students being punished for speech that isn't sufficiently woke.  Breyer also seems to be strongly in favor of the student.  This is probably over.

Update: Thomas seems to be leaning toward the district as expected.  Gorsuch leaning toward the student. Surprisingly, Sotomayor and Kagan could be leaning toward the school district.  This is definitely playing out like a cancel culture case, not a 2000-era century social conservative vs. social liberal case.  The student will almost surely win, but the district could get 2-4 votes.  This really fits with the idea that the conservative and liberal coalitions have flipped on free speech since the 1990's. 

[I’m not Stu]

Kavanaugh's comments in oral argument were hardcore in favor of the student.  Barrett thinks schools are abusing their authority to police speech.  Even Alito raised concerns of students being punished for speech that isn't sufficiently woke.  Breyer also seems to be strongly in favor of the student.  This is probably over.

Update: Thomas seems to be leaning toward the district as expected.  Gorsuch leaning toward the student. Surprisingly, Sotomayor and Kagan could be leaning toward the school district.  This is definitely playing out like a cancel culture case, not a 2000-era century social conservative vs. social liberal case.  The student will almost surely win, but the district could get 2-4 votes.  This really fits with the idea that the conservative and liberal coalitions have flipped on free speech since the 1990's. 

Thomas can already be written off as a foregone conclusion.

[brucejoel99]

Just gave it a listen. There seems to be a distinct possibility that they (or, at least, that some of them) might just punt by saying that regardless of whether or not the speech in this case was rendered on-campus or off-campus, it didn't meet the standard for Tinker's tests insofar as regulating it as non-disruptive conduct is concerned.

[Sestak]

Just gave it a listen. There seems to be a distinct possibility that they (or, at least, that some of them) might just punt by saying that regardless of whether or not the speech in this case was rendered on-campus or off-campus, it didn't meet the standard for Tinker's tests insofar as regulating it as non-disruptive conduct is concerned.

Just to clarify, you're thinking that they declare that the speech here is nondisrputive and so can't be punished under either Tinker or standard free speech rules?

[brucejoel99]

Just gave it a listen. There seems to be a distinct possibility that they (or, at least, that some of them) might just punt by saying that regardless of whether or not the speech in this case was rendered on-campus or off-campus, it didn't meet the standard for Tinker's tests insofar as regulating it as non-disruptive conduct is concerned.

Just to clarify, you're thinking that they declare that the speech here is nondisrputive and so can't be punished under either Tinker or standard free speech rules?

I don't know if they'll actually end up doing so in the end, but it certainly feels like a possibility, given that the girl deleted the snap in question so, if anything, any disruption was caused not by her so much as by others' sharing of the screenshot thereof & then the overzealous punishment which the cheer coach imposed. That is to say that it doesn't really seem like she sought to disrupt so much as it was the school itself which chose to disrupt after the fact. In any event, it also didn't help the school that they were arguing about bullying today when the student's speech - "f**k school, f**k softball, f**k cheer, f**k everything" - didn't at all constitute bullying. Had she actually sought to bully somebody, then perhaps it would've been fair game for their punishment to be upheld, but if she wasn't actually bullying anybody, then I don't see how this speech isn't protected.

[Donerail]

Just gave it a listen. There seems to be a distinct possibility that they (or, at least, that some of them) might just punt by saying that regardless of whether or not the speech in this case was rendered on-campus or off-campus, it didn't meet the standard for Tinker's tests insofar as regulating it as non-disruptive conduct is concerned.

Just to clarify, you're thinking that they declare that the speech here is nondisrputive and so can't be punished under either Tinker or standard free speech rules?

What they're probably going to do is say that the speech can be punished under Tinker, undoing the 3d Cir's broad holding that Tinker is limited to on-campus speech, and remand the case to the 3d Cir to see if it actually meets the "substantial disruption" standard from Tinker.

[Sestak]

Just gave it a listen. There seems to be a distinct possibility that they (or, at least, that some of them) might just punt by saying that regardless of whether or not the speech in this case was rendered on-campus or off-campus, it didn't meet the standard for Tinker's tests insofar as regulating it as non-disruptive conduct is concerned.

Just to clarify, you're thinking that they declare that the speech here is nondisrputive and so can't be punished under either Tinker or standard free speech rules?

What they're probably going to do is say that the speech can be punished under Tinker, undoing the 3d Cir's broad holding that Tinker is limited to on-campus speech, and remand the case to the 3d Cir to see if it actually meets the "substantial disruption" standard from Tinker.

Yeah, that's closer to what I thought they seemed to be leaning.

My one question would be that doesn't this effectively mean the 3rd Circuit has to rule in favor of the school because of Fraser? Several justices (Breyer, Kavanaugh) seemed to be very wary of the idea that schools can punish students for using any vulgar language at any time outside of school; do you think they'll make any effort to qualify that in some way?

[Donerail]

What they're probably going to do is say that the speech can be punished under Tinker, undoing the 3d Cir's broad holding that Tinker is limited to on-campus speech, and remand the case to the 3d Cir to see if it actually meets the "substantial disruption" standard from Tinker.

Yeah, that's closer to what I thought they seemed to be leaning.

My one question would be that doesn't this effectively mean the 3rd Circuit has to rule in favor of the school because of Fraser? Several justices (Breyer, Kavanaugh) seemed to be very wary of the idea that schools can punish students for using any vulgar language at any time outside of school; do you think they'll make any effort to qualify that in some way?

I think Fraser is fairly easy to distinguish — you just say that Fraser's speech caused a substantial, material disruption (iirc it disrupted an assembly?) and the district court found that BL's speech did not.

[I spent the winter writing songs about getting better]

Fraser involved a student speaking at a school assembly, this involved the student simply making a Snapchat post upset that she didn't make some cheerleading squad. Doesn't seem like comparable.

The Biden DoJ's concern seems to be that a Supreme Court decision here could impact school districts' abilities to restrict online bullying, but I don't see how the case in question here would be constituted as bullying, and was frankly not a big deal until the school itself made it into one. Not sure how the lower courts made the whole bullying/not bullying distinction or if they even took into effect at all, but it wouldn't be absurd for the SCOTUS to do that here. Is that basically what brucejoel alluded to?

[Donerail]

The Biden DoJ's concern seems to be that a Supreme Court decision here could impact school districts' abilities to restrict online bullying, but I don't see how the case in question here would be constituted as bullying, and was frankly not a big deal until the school itself made it into one. Not sure how the lower courts made the whole bullying/not bullying distinction or if they even took into effect at all, but it wouldn't be absurd for the SCOTUS to do that here. Is that basically what brucejoel alluded to?

The concern is that they say "schools can't regulate speech off campus at all," which would extend beyond cases like this one to speech that schools may want to regulate (cyberbullying, threats).

[I spent the winter writing songs about getting better]

The Biden DoJ's concern seems to be that a Supreme Court decision here could impact school districts' abilities to restrict online bullying, but I don't see how the case in question here would be constituted as bullying, and was frankly not a big deal until the school itself made it into one. Not sure how the lower courts made the whole bullying/not bullying distinction or if they even took into effect at all, but it wouldn't be absurd for the SCOTUS to do that here. Is that basically what brucejoel alluded to?

The concern is that they say "schools can't regulate speech off campus at all," which would extend beyond cases like this one to speech that schools may want to regulate (cyberbullying, threats).

Right hence the Biden Admin's position here which is understandable under those grounds. But I don't see why the Court can't just say "this is OK and this isn't" in terms off campus speech regulation, especially as both Tinker and Fraser provide some guidelines already that I think would protect this girl while not protecting cyberbullies.

[Donerail]

The Biden DoJ's concern seems to be that a Supreme Court decision here could impact school districts' abilities to restrict online bullying, but I don't see how the case in question here would be constituted as bullying, and was frankly not a big deal until the school itself made it into one. Not sure how the lower courts made the whole bullying/not bullying distinction or if they even took into effect at all, but it wouldn't be absurd for the SCOTUS to do that here. Is that basically what brucejoel alluded to?

The concern is that they say "schools can't regulate speech off campus at all," which would extend beyond cases like this one to speech that schools may want to regulate (cyberbullying, threats).

Right hence the Biden Admin's position here which is understandable under those grounds. But I don't see why the Court can't just say "this is OK and this isn't" in terms off campus speech regulation, especially as both Tinker and Fraser provide some guidelines already that I think would protect this girl while not protecting cyberbullies.

They can't do that because that's not really what the case is about. The 3rd Cir. made a decision in absolute terms — the question presented is "whether Tinker applies to student speech that occurs off campus," not "was B.L.'s speech in this case materially and substantially disruptive." The 3rd Cir. decided that Tinker doesn't apply to off-campus speech under any circumstances, even if it's disruptive or threatening, so if you want to be able to punish cyberbullying the Supreme Court has to reverse the 3rd Circuit decision. They'd then send it back down to the court of appeals to decide whether or not it was actually disruptive speech, based on the standard from Tinker.

[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.

[Geoffrey Howe]

The Economist has an article about the case:

https://www.economist.com/united-states/2021/04/28/a-cheerleaders-cursing-may-reshape-american-free-speech-laws

Surprise, surprise: 'Justice Breyer said that he was “frightened to death of writing a standard”'

[Sestak]

8-1 decision by Breyer in favor of the student. No guesses as to who the dissent was.

Breyer has, indeed, avoided writing a standard, only noting that the nature of off-campus speech means that the bar is considerably higher for the school to take action (compared to Tinker's bar on in-school speech) and that this case clearly does not meet that bar. Doesn't seem to make too much of an attempt to define that bar directly.

[Donerail]

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.

🤔🤔🤔

[brucejoel99]

8-1 decision by Breyer in favor of the student. No guesses as to who the dissent was.

Breyer has, indeed, avoided writing a standard, only noting that the nature of off-campus speech means that the bar is considerably higher for the school to take action (compared to Tinker's bar on in-school speech) and that this case clearly does not meet that bar. Doesn't seem to make too much of an attempt to define that bar directly.

He kinda did, in specifically acknowledging that although the student in this case plainly had a legal right to criticize the school when she was off-campus & it was outside of the school's operating hours without fear of the school's limited authority over free-speech reaching her, schools do still have special interests in cases of bullying, threats, cheating, & hacking as types of disruptive off-campus speech which they could (& which lower courts should allow them to) regulate:

The school's regulatory interests remain significant in some off-campus circumstances. The parties' briefs, and those of amici, list several types of off-campus behavior that may call for school regulation. 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.

Granted, the border-line subjectiveness of those aforementioned interests is a potential issue, but that's another matter.

[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.

[Geoffrey Howe]

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.

Barnette is an interesting one because both the majority and the dissent are some of the finest opinions I have read. Particularly the dissent by Frankfurter should be better known, even if he pushed the restraint a little too far in this case for even my spare tastes.