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

[dead0man]

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The Biden Justice Department is now asking the Supreme Court to undo B.L.'s sweeping First Amendment victory at the 3rd Circuit. "The court of appeals incorrectly held that off-campus student speech is categorically immune from discipline by public-school officials," the government argued in a friend of the court brief filed in support of the Mahanoy Area School District.

According to the Biden Justice Department, while some off-campus speech deserves constitutional protection, the 3rd Circuit went too far, unfairly hamstringing school officials, who, the government maintained, require significant leeway when it comes to regulating and punishing student speech. "When the student's off-campus speech targets an extracurricular athletic program in which the student participates," the brief argued, "such speech might properly be regarded as school speech that is potentially subject to discipline by school officials if, for instance, it intentionally targets a feature that is essential to or inherent in the athletic program itself."

[Sestak]

Not good. First thing so far I've been very disappointed about from this admin.

[I’m not Stu]

Isn’t the outcome of this case predetermined? Won’t the decision be broad and 6-3 in favor of the school district along party lines or 5-4 with Roberts being the conservative in dissent, with majority opinion by Alito?

[Torie]

The Biden administration is going to lose this case with even some of the liberal justices ruling nope. The administration must be doing this for political rather than legal reasons is my surmise. That is unfortunate. Biden I think is a good man, but needs to say "no" more often to what his base wants, in my opinion.

[I’m not Stu]

The Biden administration is going to lose this case with even some of the liberal justices ruling nope. The administration must be doing this for political rather than legal reasons is my surmise. That is unfortunate. Biden I think is a good man, but needs to say "no" more often to what his base wants, in my opinion.

What? What do you think the decision will be? Who writes it?

[Stranger in a strange land]

The Biden administration is going to lose this case with even some of the liberal justices ruling nope. The administration must be doing this for political rather than legal reasons is my surmise. That is unfortunate. Biden I think is a good man, but needs to say "no" more often to what his base wants, in my opinion.

What? What do you think the decision will be? Who writes it?

From reading the first few pages of the brief, this looks like a textbook 9-0 decision in favor of the student.

[H.E. VOLODYMYR ZELENKSYY]

The Biden administration is going to lose this case with even some of the liberal justices ruling nope. The administration must be doing this for political rather than legal reasons is my surmise. That is unfortunate. Biden I think is a good man, but needs to say "no" more often to what his base wants, in my opinion.

What? What do you think the decision will be? Who writes it?

From reading the first few pages of the brief, this looks like a textbook 9-0 decision in favor of the student.

Well, if a brief is any good you’re supposed to come away thinking it’s a textbook 9-0 decision for that side. Doesn’t mean it’s going to happen.

[KaiserDave]

Not a fan

[Stranger in a strange land]

The Biden administration is going to lose this case with even some of the liberal justices ruling nope. The administration must be doing this for political rather than legal reasons is my surmise. That is unfortunate. Biden I think is a good man, but needs to say "no" more often to what his base wants, in my opinion.

What? What do you think the decision will be? Who writes it?

From reading the first few pages of the brief, this looks like a textbook 9-0 decision in favor of the student.

Well, if a brief is any good you’re supposed to come away thinking it’s a textbook 9-0 decision for that side. Doesn’t mean it’s going to happen.

But even looking at the merits of the case, why would even a liberal court rule that a school has the right to regulate and punish student speech outside of school hours and off school property?

[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.

[I’m not Stu]

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.

[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.

[I’m not Stu]

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.

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.

[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.

[I’m not Stu]

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.

Gorsuch is an extreme originalist. Thomas and Alito have nearly identical voting records (Nelson v. Colorado and Flowers v. Mississippi are rare exceptions). Thomas is closer to Alito than he is to Gorsuch (remember most criminal justice cases and Trump’s tax returns?).

[Geoffrey Howe]

Gorsuch is an extreme originalist. Thomas and Alito have nearly identical voting records (Nelson v. Colorado and Flowers v. Mississippi are rare exceptions). Thomas is closer to Alito than he is to Gorsuch (remember most criminal justice cases and Trump’s tax returns?).

Not so much on statutory interpretation I think. Alito isn't really a textualist from what I can tell. Lorenzo v. SEC springs to mind but that's not a major one.

Also the jury cases or some criminal cases where you had Breyer with Kennedy et al. and Scalia with the 'liberals', Thomas voted with Scalia and the 'liberals' usually; Alito with Breyer, Kennedy etc.

[I’m not Stu]

Gorsuch is an extreme originalist. Thomas and Alito have nearly identical voting records (Nelson v. Colorado and Flowers v. Mississippi are rare exceptions). Thomas is closer to Alito than he is to Gorsuch (remember most criminal justice cases and Trump’s tax returns?).

Not so much on statutory interpretation I think. Alito isn't really a textualist from what I can tell. Lorenzo v. SEC springs to mind but that's not a major one.

Also the jury cases or some criminal cases where you had Breyer with Kennedy et al. and Scalia with the 'liberals', Thomas voted with Scalia and the 'liberals' usually; Alito with Breyer, Kennedy etc.

Thomas and Alito almost never vote with the liberals. See these recent criminal justice cases: Nasrallah v. Barr, Trump v. Vance, Rehaif v. United States, and Guerrero-Lasprilla v. Barr.

[Geoffrey Howe]

Gorsuch is an extreme originalist. Thomas and Alito have nearly identical voting records (Nelson v. Colorado and Flowers v. Mississippi are rare exceptions). Thomas is closer to Alito than he is to Gorsuch (remember most criminal justice cases and Trump’s tax returns?).

Not so much on statutory interpretation I think. Alito isn't really a textualist from what I can tell. Lorenzo v. SEC springs to mind but that's not a major one.

Also the jury cases or some criminal cases where you had Breyer with Kennedy et al. and Scalia with the 'liberals', Thomas voted with Scalia and the 'liberals' usually; Alito with Breyer, Kennedy etc.

Thomas and Alito almost never vote with the liberals. See these recent criminal justice cases: Nasrallah v. Barr, Trump v. Vance, Rehaif v. United States, and Guerrero-Lasprilla v. Barr.

Not so much now, true; but there were a good few back in the Breyer/Rehnquist stretch and a little after when Scalia went with Thomas to the liberals; Breyer usually went with the conservatives.

[I’m not Stu]

Gorsuch is an extreme originalist. Thomas and Alito have nearly identical voting records (Nelson v. Colorado and Flowers v. Mississippi are rare exceptions). Thomas is closer to Alito than he is to Gorsuch (remember most criminal justice cases and Trump’s tax returns?).

Not so much on statutory interpretation I think. Alito isn't really a textualist from what I can tell. Lorenzo v. SEC springs to mind but that's not a major one.

Also the jury cases or some criminal cases where you had Breyer with Kennedy et al. and Scalia with the 'liberals', Thomas voted with Scalia and the 'liberals' usually; Alito with Breyer, Kennedy etc.

Thomas and Alito almost never vote with the liberals. See these recent criminal justice cases: Nasrallah v. Barr, Trump v. Vance, Rehaif v. United States, and Guerrero-Lasprilla v. Barr.

Not so much now, true; but there were a good few back in the Breyer/Rehnquist stretch and a little after when Scalia went with Thomas to the liberals; Breyer usually went with the conservatives.

Thomas has now become far more partisan. He has become less like Scalia and more like Alito.  Thomas has radicalized even more recently.

[Geoffrey Howe]

Gorsuch is an extreme originalist. Thomas and Alito have nearly identical voting records (Nelson v. Colorado and Flowers v. Mississippi are rare exceptions). Thomas is closer to Alito than he is to Gorsuch (remember most criminal justice cases and Trump’s tax returns?).

Not so much on statutory interpretation I think. Alito isn't really a textualist from what I can tell. Lorenzo v. SEC springs to mind but that's not a major one.

Also the jury cases or some criminal cases where you had Breyer with Kennedy et al. and Scalia with the 'liberals', Thomas voted with Scalia and the 'liberals' usually; Alito with Breyer, Kennedy etc.

Thomas and Alito almost never vote with the liberals. See these recent criminal justice cases: Nasrallah v. Barr, Trump v. Vance, Rehaif v. United States, and Guerrero-Lasprilla v. Barr.

Not so much now, true; but there were a good few back in the Breyer/Rehnquist stretch and a little after when Scalia went with Thomas to the liberals; Breyer usually went with the conservatives.

Thomas has now become far more partisan. He has become less like Scalia and more like Alito.  Thomas has radicalized even more recently.

Any examples/evidence?

[I’m not Stu]

Gorsuch is an extreme originalist. Thomas and Alito have nearly identical voting records (Nelson v. Colorado and Flowers v. Mississippi are rare exceptions). Thomas is closer to Alito than he is to Gorsuch (remember most criminal justice cases and Trump’s tax returns?).

Not so much on statutory interpretation I think. Alito isn't really a textualist from what I can tell. Lorenzo v. SEC springs to mind but that's not a major one.

Also the jury cases or some criminal cases where you had Breyer with Kennedy et al. and Scalia with the 'liberals', Thomas voted with Scalia and the 'liberals' usually; Alito with Breyer, Kennedy etc.

Thomas and Alito almost never vote with the liberals. See these recent criminal justice cases: Nasrallah v. Barr, Trump v. Vance, Rehaif v. United States, and Guerrero-Lasprilla v. Barr.

Not so much now, true; but there were a good few back in the Breyer/Rehnquist stretch and a little after when Scalia went with Thomas to the liberals; Breyer usually went with the conservatives.

Thomas has now become far more partisan. He has become less like Scalia and more like Alito.  Thomas has radicalized even more recently.

Any examples/evidence?

Rehaif v. United States, Trump v. Vance, Guerrero-Lasprilla v. Barr, and Nasrallah v. Barr are all examples of criminal justice cases. Kavanaugh and Gorsuch are more like Scalia than Thomas is.

[Geoffrey Howe]

Rehaif v. United States, Trump v. Vance, Guerrero-Lasprilla v. Barr, and Nasrallah v. Barr are all examples of criminal justice cases. Kavanaugh and Gorsuch are more like Scalia than Thomas is.

Well I have no idea whether they are politically motivated, but the combinations of Justices does seem curious. IIRC Ginsburg agreed with Roberts more often in the last term than Thomas did.

[I’m not Stu]

Rehaif v. United States, Trump v. Vance, Guerrero-Lasprilla v. Barr, and Nasrallah v. Barr are all examples of criminal justice cases. Kavanaugh and Gorsuch are more like Scalia than Thomas is.

Well I have no idea whether they are politically motivated, but the combinations of Justices does seem curious. IIRC Ginsburg agreed with Roberts more often in the last term than Thomas did.

Ginsburg also agreed with Roberts more than Alito did. Thomas agreed with Alito more than anyone else. Alito agreed with Thomas more than anyone else.

[Skill and Chance]

Gorsuch is an extreme originalist. Thomas and Alito have nearly identical voting records (Nelson v. Colorado and Flowers v. Mississippi are rare exceptions). Thomas is closer to Alito than he is to Gorsuch (remember most criminal justice cases and Trump’s tax returns?).

Not so much on statutory interpretation I think. Alito isn't really a textualist from what I can tell. Lorenzo v. SEC springs to mind but that's not a major one.

Also the jury cases or some criminal cases where you had Breyer with Kennedy et al. and Scalia with the 'liberals', Thomas voted with Scalia and the 'liberals' usually; Alito with Breyer, Kennedy etc.

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.

[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.