Justices Alito and Thomas are Problematic Champions of Student Free Speech

L. M. was a 7th-grade student in a Massachusetts public middle school. He wore a t-shirt to school with the message "There Are Only Two Genders" in evident protest of the school's lessons and activities promoting gender identity diversity and inclusivity. He was told by school authorities that he could not wear that shirt. He then donned a shirt that said "There Are CENSORED Genders." The school told him to change from that shirt as well. He did. Then he sued. He lost in the district court and before the First Circuit. He then filed a petition for a writ of certiorari from the Supreme Court. Earlier this week, the Court denied the petition. Justice Alito, joined by Justice Thomas, dissented. They argued that SCOTUS was permitting the First Circuit and school districts to engage in censorship.

The dissent makes some notable points--and I'll come to them momentarily--but before doing so, it's worth pointing out the oddity of Justices Thomas and Alito casting themselves as champions of free speech. Overall, Justice Alito is the least speech-protective Justice on the Roberts Court. He was the lone dissenter in United States v. Stevens (which invalidated a law banning depictions of animal cruelty) and Snyder v. Phelps (which disallowed a claim for intentional infliction of emotional distress against protesters near a funeral).

Meanwhile, Justice Thomas himself notes in a brief separate dissent in L. M. that he thinks the leading case recognizing public school students' right to free speech--Tinker v. Des Moines Independent Community School District--was wrongly decided. One might therefore imagine that Justice Thomas was dissenting from the cert denial because he wanted the Court to grant cert in L. M. to overrule Tinker, but no: Justice Thomas wanted the Court to grant cert to give effect to Tinker in this case, lest the ruling be applied inconsistently. He thus joined Justice Alito's dissent in full.

What's going on here? Has Justice Alito suddenly become a free speech enthusiast? Has Justice Thomas become a stickler for applying the Court's precedents even if he disagrees with them unless and until they are overruled? Did he have such a conversion just five days after he joined the majority in the shadow docket ruling in Trump v. Wilcox--which pretty clearly did not apply the precedent of Humphrey's Executor v. United States but also didn't formally overrule that decision?

Of course not. Justices Alito and Thomas are the Court's leading culture warriors. L. M. provided an opportunity for them to strike a blow against woke gender ideology, so of course they took it.

Justice Alito's L. M. dissent argues that Tinker should be understood to import the general First Amendment requirement of viewpoint neutrality into the student speech setting. He writes: "If a school sees fit to instruct students of a certain age on a social issue like LGBTQ+ rights or gender identity, then the school must tolerate dissenting student speech on those issues."

Let's see whether that makes sense with a hypothetical example. Suppose that a public middle school recognizes Black History Month with lessons on slavery, the Civil War, Reconstruction, Jim Crow, the Civil Rights Movement, and the accomplishments of renowned African Americans, thus "instruct[ing] students of a certain age on a social issue like" race or racism. Must it therefore "tolerate dissenting student speech on those issues?" Suppose that one February Tuesday, a white student comes to school wearing a t-shirt bearing the statement (which is a paraphrase of a key passage in Justice Brown's majority opinion in Plessy v. Ferguson): "If legally mandated segregation stamps the colored race with a badge of inferiority, it is not by reason of anything found in the law but solely because the colored race chooses to put that construction upon it." Or suppose the t-shirt is more pithy and/or includes the n-word. In Justice Alito's view, must the school that sees fit to instruct students about race and racism tolerate such dissenting pro-racist speech?

An adult or, for that matter, a juvenile when not at school, has a constitutional right to express a pro-segregationist or otherwise racist message via a t-shirt or any other verbal means. But that doesn't mean that a minor can express such a message--calculated to incite feelings of hurt, indignation, and anger among fellow students--during school hours and on school premises. The First Circuit, in rejecting L. M.'s First Amendment claim, categorized the "only two genders" and "CENSORED genders" t-shirts as "disruptive" and therefore proscribable under Tinker. That seems right, even though viewpoint-based, for the same reason that laws restricting workplace harassment are constitutionally permissible even though viewpoint-based.

Now, to be fair to Justice Alito, it's possible that he would be even-handed in sustaining a First Amendment claim by the student who wishes to wear the pro-segregation t-shirt during Black History Month and in finding civil rights laws unconstitutional when applied to proscribe harassment. As a judge on the Third Circuit, he asserted (in an opinion for himself and two colleagues): "There is no categorical 'harassment exception' to the First Amendment's free speech clause."

It's hard to know whether then-Judge/now-Justice Alito would apply that principle in a case in which the harassment is directed at people because of their race rather than because of their gender identity or sexual orientation. The Third Circuit case, like this week's L. M. case, involved anti-LGBTQ speech. In that case, the plaintiffs asserted "a right to speak out about the sinful nature and harmful effects of homosexuality." Then-Judge Alito and his colleagues invalidated the challenged school policy because it was overbroad--which could imply that they would have reached the same result if the plaintiffs wished to engage in racist speech.

But then-Judge and now-Justice Alito goes out of his way to sanitize anti-LGBTQ speech. In L. M., he repeatedly puts quotation marks around statements from the record in ways that are unnecessary to his exegesis but seem designed to mock the concerns of the school officials. These include the phrases "physical safety" and "made them upset." Perhaps I'm reading more into those quotation marks than Justice Alito intended, but to my eye, he appears to be dismissing the possibility that trans or non-binary youth could reasonably fear for their safety. He also seems to be discounting the disruptiveness of L. M.'s speech by implying that any upset is just snowflakes being snowflakes.

That impression is underscored by contrasting Justice Alito's L. M. dissent with his concurrence in Morse v. Frederick, in which the Court held that a school could forbid a student from displaying (at what the Court deemed a school-sponsored event) a banner that read "BONG HITS 4 JESUS." The majority, including Justice Alito, believed that that somewhat inscrutable statement promoted drug use. In a concurrence that for the most part expressed sensible views about the dangers of censorship by public school authorities, Justice Alito nonetheless concluded that the school acted permissibly because "[s]peech advocating illegal drug use poses a threat to student safety . . . ."

That is a dubious conclusion even standing on its own but especially so when juxtaposed with Justice Alito's view that trans and non-binary students have no reason to fear for their safety when a fellow student proclaims their erasure. Given the very real danger of anti-LGBTQ hate crimes, L. M.'s t-shirt presented at least as serious a threat to student safety as Joseph Frederick's oddball bong-hits banner.

In any event, although I believe the First Circuit was probably right to reject L. M.'s First Amendment claim, I agree with Justice Alito that there are circumstances in which viewpoint-based censorship by public school authorities would violate the First Amendment. It would be easier to take his arguments seriously and contemplate the appropriate limits in a case in which the speech in question were something other than anti-LGBTQ bullying dressed up as religion (in then-Judge Alito's Third Circuit case) or science (in L. M.).

-- Michael C. Dorf