Monday, May 03, 2021

Cursing Cheerleaders, Constitutional Interpretation, and Law as Social Policy

 By Eric Segall

Last Wednesday, the Supreme Court heard oral argument in a case where a student was punished for social media speech she posted after she didn't make the varsity cheerleader team. There has been a lot already written about the case and how hard it will be for the Justices to decide it in a way that both respects the rights of students and allows school officials to take appropriate disciplinary action when necessary. Whatever the Court decides, and this case is truly hard as I will explain below, law will have very little to do with the ultimate decision. And that dirty little secret reveals important truths about much constitutional litigation and possibly how interventionist we want judges to be when the law runs out.

The cheerleader in this case, referred to in the complaint as B.L., tried out for the varsity cheerleader team but, alas, was told she would have to settle for the JV team for another year. She was upset that another girl, who didn't have to be on the JV squad first, made the varsity. The day after B.L. received the bad news, a Saturday, she posted on Snapchat two messages: the first one consisted of a photo in which she and a classmate raised their middle fingers at the camera, with the caption: “Fuck school fuck softball fuck cheer fuck everything.” The second message, posted shortly after, consisted of the text: “Love how me and [another student, whom B.L. identified by her name] get told we need a year of JV before we make varsity but that doesn’t matter to anyone else?" According to the brief of the school, students saw the posts, were upset by them, and talked about them the following week at school. The school also claims that B.L. had agreed to a set of rules for being on the team, including the following: “There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.”

The cheerleading coach punished B.L. by removing her from the JV team for the year. B.L. appealed that decision to the school's Athletic Director, Principal, Superintendent, and the School Board, all of whom stood by the coach's decision. B.L. then made a federal case out of her punishment, and she won in the trial court on the grounds that her speech did not cause substantial disruption as required by the landmark case Tinker v. Des Moines, which famously held that school children do not shed their free speech rights at the schoolhouse door but that administrators may punish speech that causes substantial disruption. 

The Third Circuit affirmed on the basis that the Tinker standard does not apply at all to off campus speech. The official question presented by the case is: "Whether Tinker v. Des Moines Independent Community School District..., which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus." B.L. is now represented by the ACLU.

I think we should all be able to agree that the coach overreacted, that B.L. should have been allowed to vent on social media about her not making the team, and that everyone would have been better off had the adults in the room acted like, well, adults. However, none of that happened and now the Supreme Court of the United States has to decide a case about student social media speech that could affect all of our nation's public schools and will need to be applied by both state and federal judges to a wide array of different situations. This task is a daunting one.

B.L. claims that her constitutional rights were violated so we need to start there. The applicable text is the First Amendment, which says that "Congress shall make no law abridging the freedom of speech." Of course, in this case there is no Congress and there is no "law." Yet, the Court has held that the First Amendment applies to the states and its subdivisions, and that governmental actions short of "law making" can violate the First Amendment. Okay, fair enough, but nothing else in the text can possibly aid the Justices figure out how to rule in this case. The text simply does not help.

What about the First Amendment's original meaning? In the words of Donnie Brasco, "fuggedaboutit." The nature and role of public schools have changed dramatically since either 1791 or 1868, and the whole concept of social media speech that everyone can digest in a single moment around the globe and that can stay around the globe for eternity are factors that make resort to the worlds of 1791 or 1868 absurd on its face (as originalism often is). One could adopt Justice Thomas's unique view that minors have no free speech rights separate from their parents, but, of course, no one other than Thomas is going to be willing to go there. One can peruse the many amicus briefs in this case, as well as the parties' pleadings, and will look in vain for originalist arguments, much less evidence. So much for text and history.

When we turn to Supreme Court precedent, little helps. Tinker was decided in 1969 and involved students wearing arm bands in school. Nothing in Tinker or any other Supreme Court case is going to provide guidance on whether social medial speech that is otherwise protected but impacts the school experience should be subject to the Tinker standard. 

The ACLU and numerous amici suggest that protected off-campus speech should remain completely off-limits to school administrators; otherwise student speech will be punished in draconian fashion by over-sensitive school officials. The plaintiff's brief contains a long list of actual cases the ACLU thinks prove this point. On the other hand, the school's brief points out that social media speech is ubiquitous, often permanent, and can seriously damage legitimate pedagogical interests inside the school itself. Although B.L. posted her messages on Snapchat, which technically disappears after a day, other students took screenshots, which can be permanent. As I've written before, the internet is a game changer for various aspects of free speech doctrine.

In addition, does a student accessing social media at school trigger Tinker but if she accesses social media one block off the premises the speech is untouchable? That seems like an odd distinction. This issue of school punishment for social media speech is one of first impression for the Court and there is little (or nothing) in prior cases to help sort out it out.

My view is that the Third Circuit made a huge mistake by finding that Tinker never applies to off-campus speech that is otherwise protected (true threats, defamation, etc., could be punished). A student who repeatedly criticizes a teacher in a non-harassing but inflammatory manner every day on Facebook over a long period of time should be able to be punished for that speech if it causes and was likely to cause material disruption at school. Moreover, should football players or lacrosse players have an absolute right to criticize their coaches (or other players) on social media day after day after day simply because the speech was technically off-campus? That approach does not take into account serious and legitimate school interests.

There was an easier way for the judges in this case to rule. Since the Third Circuit ruled for the plaintiff anyway, the panel could simply have upheld the trial court's finding that there was no material disruption, and thus even if Tinker applied, the speech was protected.  But by finding that schools have no authority to discipline students for any off-campus speech, the Third Circuit opened up the huge proverbial can of worms.

B.L.'s speech would likely have been protected had she uttered it in the public square but does that mean it is automatically protected on social media? Does B.L. being forced to agree not to put such speech on the internet as a condition for her being on the team change the calculus? Assuming a Tinker-type disruption standard does apply to social media speech by students, how deferential should judges be to a finding by the school of such disruption? These are all hard questions for school officials, parents, and students, much less unelected, life-tenured lawyers.

And yet, there is nothing in "the law" to help. Text, history, and precedent have all run out. These are pure policy questions. So, what to do? I would suggest that courts rarely second guess school administrators on these kinds of questions. The punishment here, being kicked off the JV cheerleader team for negative comments about the team, was dumb and excessive, but was it so dumb and excessive as to count as unconstitutional? That feels like a question reasonable people can disagree about and, if so, maybe judges should have the humility to say, we might have decided differently but these facts are not egregious enough to warrant our interference. 

Judicial review under the First Amendment usually involves stricter standards of review than reasonableness, but, at the end of the day, schools should be able to try and stop material disruption, and whether there really was a disruption will often be a factual question. It will prove impossible to formulate clear rules to sort among the numerous and varied factual situations that can arise, but strong deference to school officials will yield more predictability and less litigation. Judges will still be there as a backstop for the most abusive situations. As a societal matter, accountable school officials rather than life-tenured judges, who may or may not have children, should bear primary responsibility for these decisions.

It is possible for a judge to say, sometimes even desirable for a judge to say something like "the case at hand involves difficult social policy questions with only a tangential connection to constitutional text, history, and precedent; although we may have made a different decision, the one we are reviewing is reasonable, and thus we leave it alone." That is what should have have happened to the cursing cheerleader and the school officials who overreacted to her speech, but should be given the freedom to make such mistakes, most, but not all, of the time.


kotodama said...

While I'm no 1A expert, in the spirit of freeze peach, I'll make a few stray observations anyway.

I agree in these kinds of cases it's pretty much ad hoc policymaking and guesswork all the way down. No question there.

But if we take some policymaking as unavoidable, I agree the on/off-campus distinction seems more than a little spurious. The main focus IMO should be disruption or not. If anything, online "speech" would seem to have more potential for disruption because of its broader reach. By chance maybe, Brandi (her name's widely reported in the media, so I don't feel obliged to anonymize it) got the news on Saturday when she wasn't on campus anyway. Had it been on a weekday instead, she might have made her little outburst somewhere in the school building where only a few people could see it. The on-campus version thus could potentially have been less disruptive. Anyway, as I understand it, Morse was technically off-campus and had no disruption, so it ought to pretty much dictate (no speech pun!) the result here.

The real problem may be internet oversharing. That's hardly limited to just high school students either (he says as he comments on a blog post ...). On the one hand, it's no easy task to stop the kids from doing it because (1) it's advertised to them relentlessly and they're at an age of being highly susceptible to that sort of thing and (2) it's quite unrealistic to expect them to appreciate the possible consequences of doing it. On the other hand, I hope no one is suggesting that school employees are gearing up to become the internet censorship squad. That would be silly. We all know or should know they barely have time to eat lunch as it is, so the last thing they're looking for is to take on more job responsibilities. If something becomes so disruptive they feel compelled to address it, fine, but that's exactly when punishment may be called for.

There's a certain irony in someone complaining that her 1A rights were violated because she lost the opportunity to participate in cheerleading—the whole point of which is boosterism on the school's behalf and promoting its message.

I have to say it's getting a little tiresome that ACLU keeps signing on to these free speech absolutism cases. They're going to have negative side effects down the road, and ACLU should be smart enough to recognize that and think better of it.

Joe said...

The controlling opinion in Morse by CJ Roberts decided that

"At the outset, we reject Frederick’s argument that this is not a school speech case—as has every other authority to address the question."

Setting forth various facts, it concluded ....

"Under these circumstances, we agree with the superintendent that Frederick cannot “stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.”

So, it isn't really the "off campus" issue.


As to the anonymous nature of the student, well, yeah. SCOTUSBlog etc. not only gave you a name, it gave you a picture that was released by that side.


I agree that in some fashion the 1A will be a matter of policy making, but nothing new there is regard not only to constitutional law, but law in general. It is what appellate judges do. Then Judge Sotomayor has a famous video clip of her saying court of appeals judges making policy. The debate then is how to do so.

My priors are strict freedom of speech but do agree this is a tricky case. To me, a major issue is that the punishment was tied to her extracurricular activity and was a response to violating of what can be seen as non-viewpoint good sportsmanship (is there is a gender neutral term?) guidelines. It is not like she was penalized for saying "you know, I feel like shit ... I think I should have got their varsity slot ... it's so unfair!" She dropped some crude crass statement that was like just rude.

And, she wasn't expelled from school or something. The surely ridiculously extreme (yes, not at issue) penalty was tied to her place on the team. This reminds me somewhat of the drug testing cases. Drug testing athletes was an easier case than drug testing all clubs (easier for the school). And, even there, drug testing is more intrusive (I thought the school should have lost both times) than telling the student to tone it down, especially when you are posting on the Internet which has broad reach.

(As Breyer noted in the Bong Hits case, saying "heh heh Bong Hits!" to a friend is a lot different than a big banner at a school event. A Snapchat or tweet or whatever is a lot different than the cheerleader complaining about this to a friend in the same language.)

I do hope for a narrow ruling and think either way might be fair.

Joe said...

One more thing ...

the Court during oral argument was rather confused about line drawing that repeatedly often could apply to in school speech. That is, more pure Tinker material.

The lower courts have handled a range of such cases; the Supreme Court has barely done so, especially exempting cases with school endorsement issues like a newspaper or a school assembly. The closest might have been a basically silly case about a sophomoric sign at a school event. Which the Court decided narrowly, finding an illegal drug exception of unclear reach [Alito/Kennedy concurrence flags this]

I'm thinking something like offensive t-shirts and so forth.

This case is not really a great avenue to decide big issues either. The Supreme Court has for decades now let the court of appeals handle these questions. I think they probably want to keep on doing so, though with some sort of tweak.

kotodama said...

The usual good points from Joe.

If nothing else, Morse shows it's a continuum. You don't have to be physically right inside the building. The connection to school is what counts. Obviously the whole point of the Brandi outburst here was to comment on school, and more importantly, for the message to be seen by fellow students. If anyone has a concern about school admins monitoring for any and all supposedly objectionable speech, even totally unrelated to school, again, I just think that's totally unfounded.

Content of the speech matters too. It goes without saying (no pun) but it's not like this case even remotely implicates politics or matters of public concern. Motivation of the school also matters I think. In Tinker you had a fair suspicion of hippie-punching and suppressing a minority political view. Again, that's obviously not present here.

Anyway, I think one likelihood is going to be a jumbled lineup and multiple opinions. The overbroad CA3 ruling seems vulnerable to at least being reversed in part too, including on the theory that SCOTUS rarely takes cases to affirm.

[Joe made an intervening comment and I agree too, especially on the final observation.]

Eric Segall said...

These are all thoughtful comments. Thanks!

Alg0rhythm said...

Great post and conclusion. THe girls ranting hardly merits Supreme Court review, not with all the other nonsense going on. Web publishing is different and needs hearings in Congress and the Courts, and the law adapted.
People don't understand when they say your data, means your data.. some people can get any information about where you go and what you do and it is only a matter of price.
Influence- yeah- written word is different than spoken, but also, the Web is going to catch fish tales usually spoken with little intent of carrying out, as well as warning signals

Jason S. Marks said...


I agree with you that originalism and textualism offer no clarity on resolving the issue, and that it would have been best to let this case on its facts been disposed the right way in the Third Circuit.

That said, we have real analogues already in how to treat social media antics. Imagine the student stood in class and verbally said "F--- you" to the teacher and gave him the middle finger. No question that violates school policy today as it did in 1969, and no symbolic speech protest/association in this context (this is not "F--- the draft" of Cohen). Now, imagine the student is still in school, in the cafeteria, and talking with three friends and says the same thing and makes the same gesture. Discipline worthy? If so, schools will need jail space because kids do this all the time. Is it symbolic speech? No. Is it obscenity? No. It is childish opinion and therefore potentially protected speech. Now, we get to balancing the interests. In this case, absent the scenario leading to real brushback by or toward the teacher or the makings of a riot, it seems yet another overreaction.

Now let's take our two scenarios and move them off campus. At home, the student sends an email communicating the same as the first hypothetical in class. Same effect, same result. It is a direct attack on the teacher, totally out of line. Now, the student makes a GIF of her giving the finger to the teacher and sends it to four friends. Here we see how it is like the lunchroom. It is kept at the moment to four friends and relatively harmless and childish. Now, what if the friends redistribute and it gets to be seen by half the school? Now, it starts to resemble the email to the teacher, or a riot in the lunchroom, because the whole class is in on it and it could disrupt the ability of the teacher to teach. But the caveat here is that is highly contextual and case-by-case: if balance of harm favors the school, fair to punish.

What I worry in this case is the potential scope of the ruling. I hope they stay very narrow to these facts and do not try to announce a broader rule. What happens if a student sends out a post broadly about a teacher who made a snide comment about Black Lives Matter? Now we get more to the Cohen/Tinker worry of suppressing political speech. And on the other end, if we announce some First Amendment protection for off campus speech, does that give license to cyberbullies everywhere and invalidate state statutes on cyberbullying (a point raised by Kagan in the oral argument)? This would be a terrible outcome.

So, while this case could be much ado about nothing, it could also be overdoing it about something important (apologies to Shakespeare).

Greg said...

What I find interesting is that no one is focusing on the prior restraint in the team requirements. That alone seems like an overly extreme policy that nothing negative can be said about the team on the internet. Could the school require that nothing negative about the school can be posted on the internet as a condition of participation in any extracurricular activities? That doesn't seem very far from the policy at issue here, but seems clearly problematic. I appreciate the school's desire for a hard line, but the rule as written seems unconstitutional. For that matter, what are "negative comments?" Would a statement like "I really think we should be doing 2 jumps in the program, but we're only doing 1" be considered a negative comment?

I would be inclined to narrowly find that the policy was an unconstitutional prior restraint on speech, and perhaps find a way to let the student win because of the unreasonableness of the policy, while avoiding having to decide if a more narrowly tailored policy that focused on disruption could be developed that would allow this particular speech to be punished.

Barring that, Tinker as applied to off-campus speech seems pretty reasonable, with the understanding that off-campus speech is less likely to be disruptive to on-campus activities than on-campus speech. As to whether this particular speech actually was disruptive, that's a harder call. I would want trial evidence to know whether the school blindly followed the policy or if they made a separate determination that this particular speech was also disruptive.