First Amendment Lessons

The Supreme Court issued an interesting First Amendment decision yesterday that is worthy of note on multiple levels–both for the important lessons it teaches about our modern social media society, and also for what it says about the boundaries of what public officials and school administrators can and cannot do, under the First Amendment, when somebody says something that they really don’t like. You can read the Supreme Court opinion here.

The facts are straightforward. A high school freshman tried out for the school cheerleading squad. She didn’t make varsity, but was offered a spot on the junior varsity. She was disappointed and angry about the decision, particularly since another freshman made the varsity squad and–like so many teenagers (and adults) these days–she took to social media to vent her apparently considerable frustrations. She took a picture, at a location off school grounds, that showed her and a friend with middle fingers raised and a caption with the Queen Mother Of Curses used in connection with the school and the cheer squad, and sent it to her 250 Snapchat “friends”–which included some other students who were members of the cheer squad. They took pictures to preserve the Snapchat post, which then was shared with other students, the cheerleading coach, and eventually the school administration.

And there’s the lesson in today’s social media-saturated world: don’t post or share something that you wouldn’t want to be circulated to everyone in town or printed on the front page of the newspaper. If our kids were still in school, I’d have them read this decision about an ill-advised social media effort that had immediate consequences and eventually ended up in the United States Supreme Court, and suggest that they think about the disappointed cheer squad applicant the next time they wanted to send an edgy, racy, or profanity-laced tweet, Snapchat, or other social media posting. And adults, including me, would benefit by reading it, too, as a useful reminder about how intemperate language launched in the heat of the moment can have lasting, and unwanted, ramifications.

In this case, the student apologized for the vulgar photo and crude language, but the school administration found that she had violated team and school rules by using a profanity in connection with a school extracurricular activity, and she was suspended from the cheer squad for a year. The student and her parents sued, claiming that the school’s disciplinary action violated the right to freedom of speech under the First Amendment. The Supreme Court ruled, in an 8-1 decision, that it did.

The Court’s decision is not a license for students to flash the middle finger at teachers during class or cuss out the assistant principal in the school hallways. The Court noted that while students aren’t stripped of their First Amendment rights when they go to school, reasonable adjustments to freedom of expression must be recognized to accommodate the special school environment. A key fact in this case was that the photo was taken off school grounds, but even that fact is not dispositive; the Court recognized that, in certain circumstances, schools can still properly regulate speech and conduct off-campus–such as in dealing with bullying or responding to physical threats against teachers. On the other hand, certain kinds of speech, such as the expression of religious and political views, will merit special protection against disciplinary action. And, because circumstances can change, the Court declined to articulate a broad rule about which off-campus speech and conduct scenarios can be regulated by schools, and which cannot. Those contours will have to be established by later cases and their specific factual circumstances.

Interestingly, the Court also cautioned school districts about understanding their role in making sure that students–and school administrators themselves–truly understand what the First Amendment is all about. The majority opinion states, in language that those of us who believe strongly in the value of free speech will applaud:

“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.’”

In applying these concepts to the would-be cheerleader’s Snapchat post, the Justices concluded that, vulgarity aside, the student was simply criticizing the school and the cheer squad coaches–and protecting our ability to criticize our public officials is one of the core purposes of the First Amendment. She spoke off-campus, used a private communications mechanism, and didn’t target the school or any teachers or coaches by name, all factors that weighed in favor of First Amendment protection. Her right to criticize outweighed the school’s professed interests in promoting good manners among its students, in avoiding potential significant disruption of school activities (the Court noted there was no evidence of disruption caused by the Snapchat), and in protecting the morale of the cheer squad members.

The Court concluded: “It might be tempting to dismiss [the student’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.” Those are thoughts that I wholeheartedly agree with, and I hope that others–from public officials to the people who are readily offended by opinions they don’t agree with–also take that lesson to heart.

But what of the student whose ill-considered Snapchat started this kerfuffle and produced the Supreme Court’s ringing reaffirmance of the importance of the First Amendment? I bet, deep down, she wishes she had never sent that stupid, angry Snapchat in the first place.

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