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.