After a high school student with initials B.L. posted a snap on the social media app Snapchat complaining about sports and school, she was suspended from the cheerleading team. She sued the school for violating her First Amendment rights and appealed up to the U.S. Supreme Court; the Court heard arguments in the case, Mahanoy Area School District v. B.L., this week, which could become the Court’s first major ruling on student speech in decades. On this week’s episode, we recap the oral argument in the case, as our guests explain the arguments on both sides. Host Jeffrey Rosen was joined by Will Creeley, legal director at Foundation for Individual Rights in Education (FIRE) who authored an amicus brief on behalf of B.L., and Francisco Negrón, chief legal officer at the National School Boards Association who joined a brief on behalf of the school district. They discuss how the Court might apply the precedent Tinker v. Des Moines (1969)—in which the Court famously wrote that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” but that schools could punish student speech if it substantially disrupts the educational process—to this case, and whether and to what extent schools can regulate student speech online.
FULL PODCAST
PARTICIPANTS
Francisco Negrón, Jr. is the Associate Executive Director and General Counsel of the National School Boards Association. He joined an amicus brief in this case in support of Mahanoy Area School District.
Will Creeley is the Legal Director of FIRE, the Foundation for Individual Rights in Education. Will authored FIRE’s amicus brief in support of the student in this case whose initials are B.L.
ADDITIONAL RESOURCES
- Tinker v. Des Moines (1969)
- Morse v. Frederick (2007)
- Agency for International Development v. Alliance for Open Society International (2013)
This show was produced by Jackie McDermott and engineered by Greg Scheckler and David Stotz. Research was provided by Alexandra "Mac" Taylor, Anna Salvatore, and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. This week, the Supreme court heard Mahanoy Area School District versus BL which some have called the most important case involving student free speech in years.
Joining us to examine the implication of the case for the First Amendment are two of America's leading experts and advocates on both sides of the case. Francisco Negrón, Jr. is the associate executive director and general counsel of the National School Boards Association. He joined an Amicus brief in this case in support of Mahanoy Area School District. Francisco, it is wonderful to have you with us.
Francisco Negrón: [00:00:55] Thank you. It's my pleasure to be here.
Jeffrey Rosen: [00:00:57] And Will Creeley is the legal director of FIRE, the Foundation for Individual Rights in Education. Will wrote FIRE's Amicus brief in support of the student in this case whose initials are BL. Will, thank you so much for joining.
Will Creeley: [00:01:10] Jeff, it's a pleasure. I can see the National Constitution Center out my window from my office in Philadelphia, so it's, it's like being home.
Jeffrey Rosen: [00:01:16] Will, that is wonderful and will inspire us for the discussion I have. Let me begin with you, Will. Why is this case important and why have some scholars on both sides of the case called this the most important student free speech case in a generation?
Will Creeley: [00:01:29] Well, that's an excellent question, Jeff, and when I've been explaining it to folks, especially folks who are not lawyers like my mother the way I start is by saying that the Supreme Court doesn't deal with student speech cases very often. It's been since since the court has considered the First Amendment rights of students in either the K-12 or the higher ed context in this way. And since 2007, as your listeners may know, there's been a revolution in how students talk to each other.
When I sta- first started defending student free speech rights for FIRE in 2006, I still had to identify Facebook as popular social network site Facebook.com, and that seems like about three lifetimes ago. So this is the first time the court has grappled with the application of its 1969 landmark free speech case Tinker v. Des Moines Independent Community School Board to online speech, such as the speech at issue here a cheerleader's Snapchat posted on the weekend off-campus expressing her frustration with school and life and everything.
Jeffrey Rosen: [00:02:26] Francisco, you represent the National School Boards Association and you are arguing that the Tinker case, which Will just mentioned which holds that public officials can regulate speech that would materially and substantially disrupt the work and discipline of the school, should not be cabined simply to speech that takes place on campus as the US Court of Appeals for the Third Circuit held. Tell us more why you believe that's important and why that has important implications for free speech in schools.
Francisco Negrón: [00:03:00] Right, Jeffrey. So of course, you know that in that famous Tinker case the Supreme Court actually used the phrase that students don't leave their constitutional rights at the schoolhouse gate. So this case is all about where the schoolhouse gate is. Is it a geographic location? Is it a physical presence?
You know, in 1969 when Tinker was decided, that wasn't the question. It was the little schoolhouse gate. It was students wearing armbands in a classrooms. But today, we know that students engage in speech in a variety of ways, and that speech happens more and more on the internet through social media platforms, and it finds its way to the school setting and that's what this case is about. We are asking the court in this particular case to look at that Tinker framework and help us clarify where that schoolhouse gate lies, because we know that there's lots of issues that are arising for students around speech that may be harmful, things around bullying and harassment, and there's an expectation that schools do something about those.
Jeffrey Rosen: [00:04:05] All right, the stakes are clear, and thank you both for helping our listeners understand them. Will, the, the Third Circuit said that when a student speaks away from campus over the weekend and without school resources and on a social media platform unaffiliated with the school Tinker does not apply. Why do you think that rule was correct and that it's important to draw a strict distinction between on and off campus speech in a world of social media?
Will Creeley: [00:04:33] Well, for a number of reasons, Jeff, and that's a, a great question. Thank you for it. First of all the idea that Tinker should apply off campus is directly contrary to the understanding of the justices that handed down that decision back in 1969. Tinker is a carve-out for First Amendment rights. It's a heightened ability of the government, in this case public schools, to regulate student speech, and that's because of one reason, that students are in the control of schools, right? They are in, in school and they are what the court identified as the special characteristics of the school environment. They're there to be educated. But schools also have a supervisory authority. They're acting in loco parentis in place of the parents.
When students are no longer in the school environment be that in the classroom, on campus, on a school trip, in a school-sponsored activity, when they are, as BL was here hanging out with a friend at a convenience store on a Saturday afternoon their First Amendment rights are co-extensive with the rest of us that government had... no longer has the power to punish them out of some supervisory authority. At that point, the supervisory authority is back to the parents. So that is, is the first, I think, kind of doctrinal reason.
The second reason, and, and this may speak again to the high stakes of this case, is the lesson that we teach students about their First Amendment rights, and this is what my brief for FIRE and the National Coalition Against Censorship and the Comic Book Legal Defense Fund really emphasized. If we teach students that their status as a student entitles the government to put them into a kind of panopticon to be able to see and to monitor and to regulate and indeed punish their speech at all hours of the day, because as we know, especially during COVID, students speak to each other online, even when they're just expressing simple frustration, which I think all of us can remember being 14 and angry feeling that way.
If we teach students that that is the long arm of the government that there is no refuge for dissenting about school or criticizing the school, even in terms that that maybe especially in terms of the government and its administrators don't like, we are sending a corrosive illiberal lesson to a generation of students who will then go on to expect such monitor and perhaps even replicate it. And I think that's very dangerous to the long-term health of our democracy.
We can't just talk about the First Amendment rights in civics education and history of class. We have to teach students that they're real, and the best way to do that is to tell students that they possess them and that they can exercise them when they're off campus, and that's I think exactly what the Third Circuit's opinion did.
Jeffrey Rosen: [00:06:49] Francisco, your brief argues that the Third Circuit's categorical limitation on Tinker is misguided for three reasons, that Tinker has never been strictly confined to on-campus conduct, that a categorical rule is particularly ill-suited for the social media age, and that Tinker limits when schools can regulate disruptive conducts. And then you go on to say the Third Circuit's categorical rule would have disastrous consequences. With thanks to you for stating your position so clearly help our listeners understand each of those points.
Francisco Negrón: [00:07:18] So I think the most important point out of that, and, and primarily this question about Tinker is in understanding that students' rights around free speech can be regulated certainly when students are in school if they're detrimental or somehow just detract from the educational setting or when they infringe on the rights of others. The, the... But for us, this case in particular is really about the modern application of Tinker. We all know that we live in a modern world where the use of communication devices and very powerful computers, like the cell phones that you and I and everyone carry around is instantaneous.
And it's, it's really important to understand that communication now between students doesn't happen in the way that it did in 1969 simply on a playground or at a convenience store around the corner, that for students virtual reality really is reality. It's a lived experience. Um, And that sometimes that communication happens not only instantaneously, but then it's magnified and augmented by the ability to reach a large number of persons.
When those messages are targeted to the school environment to fellow students, then I think there's a responsibility for schools to address that. And for us, the primary concern really turns around questions of bullying and harassment. We know that students, unfortunately, and young people, perhaps because of levels of development and many reasons, engage in things like bullying and harassment, and many of them do it on the internet. They do it through social media platforms. And oftentimes they target students and they target the school setting with those messages.
And there's an expectation not only from parents we are in the place of the parents in loco parentis, an expectation from communities, from students themselves, for schools to keep them safe. And by the way, not just those three parties, but also state law, which requires schools to in many jurisdictions to address questions of bullying and harassment.
So there's a really sound operational reason that has to do with making sure kids are safe. And when those messages, you know, regardless of how they're developed are targeted at students through social media we've seen the tragic consequences. And there's an expectation and a responsibility for schools to address that.
Jeffrey Rosen: [00:09:48] Will, your brief argues that both high school and college students routinely face discipline today for expressing political views and exposing potentially dangerous or unhealthy school conditions, as well as speech criticizing teachers using profanity, telling jokes about zombie invasions, taking pictures of toy guns, even quoting the 2004 film Mean Girls. Tell us more about those examples, and would a rule limiting Tinker to on-campus speech dramatically changed the landscape, could make all of those punishments impossible?
Will Creeley: [00:10:22] Yeah. Thanks, Jeff. Yeah. Doing research for this brief I was both amused and deeply depressed by the extent of the long arm of schools in peering into their newly visible students speech. And I say newly visible because surely students are saying the same things to each other that they did 50 years ago, 100 years ago, 200 years ago. They're just saying it in a way that now school administrators can see and eavesdrop upon.
So it's interesting as Justice Gorsuch noted in oral argument that there's this irony, the more avenues we have for speech the more avenues there are for censorship and regulation. Yeah, and just to, to go to some of those examples that you've mentioned, Jeff we have a student who is watching Mean Girls at home on a weekend at her parents' house and tweets a line from the the, the movie, not directed at anybody, you know, nothing that wouldn't earn anything above a- an R rating. And she suspended.
We have students who are criticizing teachers saying... not by name, but again, off-campus on Facebook saying, "I wouldn't want to take Spanish taught by a racist," suspended. We have students who are celebrating a snow day with a pro- profanity suspended. So that's the real danger here. And, and Francisco talks about the modern Tinker. And I appreciate that point.
And, and likewise counsel for petitioners, counsel for Mahanoy Area School District today Lisa Blatt, talked about the fact that Tinker has been applied to off-campus online student speech for 20 years, but I would argue, and I think anybody who cares about First Amendment rights for students would argue that it's been an abject disaster. School administrators are lost in this nether realm of not really knowing where the schoolhouse gate is, as Francisco says. So I appreciate that, that that nebulous [laughs] nature of that task, but also in light of that uncertainty going ahead and saying, "Will punish first and ask questions later." And into that approach go the speech rights of many students.
So yeah, our, our brief is, is, it's a, a dark comedy of student censorship. And while it seems funny to say, yeah, this student got suspended for talking about zombies or even BL using the swear word on Snapchat that disappeared 24 hours later, the lesson that it teaches those students lasts a long time. And I was only going off the reports that I could find in the newspaper. I'm sure there are countless other students who for whatever reason, maybe access to an attorney, maybe family means maybe just a desire to keep their head down, shut up and, and, you know, play it by the book never get their cases told at all. And that's a tragedy for our civic democracy.
Jeffrey Rosen: [00:12:44] Francisco, Justice Alito also expressed your concern about bullying and asked whether there was anything that a school can do about that. And David Cole for the ACLU said there are bullying codes throughout the country. They're limited to the school environment, and he thinks that schools can punish those who bully in ways that violate a constitutional prohibition on bullying. And the Third Circuit too said that you could carve out an exception and allow bullying to be prosecuted under anti-bullying laws rather than under Tinker. What is your response?
Francisco Negrón: [00:13:14] Yeah, so I think that's a... that's an interesting question. Uh, Mr. Cole counsel for the student, repeatedly tried to refer to a variety of other laws, including criminal laws, as the appropriate vehicle for addressing student behavior. And too, I think the disbelief of some of the justices, including Justice Coney Barrett, who, you know, repeatedly questioned him about that.
But I think the first piece that I would like to make really in response to some some of the comments that, that Will just made is that, first of all, it's important that parents understand that schools are not interested in being the internet police. And that's not what this case is about. There's a variety of reasons why schools are not interested in being the internet police. And that's, first of all, schools understand that that's not their role. They understand the uh, the constitutional rights of students and, and those are... and, and their need to respect them.
But more importantly, they're simply not the capacity. So it's not a question of schools being sort of on the prowl just seek out individual student commentary that happens outside of the school campus. But it really is important for listeners to understand that there are communications that are targeted to other students and to the school setting in the way that it was done here. It was not done only as a message that was sent to one person, but, you know, hundreds of people actually reviewed it. And those are the messages that were... that are or concern.
I should point out too that counsel for the student under questioning by Justice Sotomayor agreed that for extra curricular activities, for instance, like teams or athletic teams they could impose conditions in advance that address students' speech regulation, you know, if the students agreed. So it really, I don't know that Mr. Cole had an actual appropriate answer, I think, a convincing answer to why that simply didn't apply in this case.
And, you know, one of the things that schools like to do, and I think Justice... Pardon Lisa Blatt, the counsel for the school, really did a great job of, of laying out what schools are, are after in a case like this one. And she said that, "Listen, when we're doing something like cheerleading to be specific," which is the extracurricular activity at issue here "what we're trying to teach as, as the school is leadership collaboration, teamwork. And when there is this kind of negative messaging that's targeted directly at that team and at that activity, it raises into question whether that student can compete in that way."
And I... the example that she gave was this student is now going to be potentially at the bottom of a cheerleading pyramid. And so there's an actual role here for the school to address about, you know, operationally what is going to be the impact of this speech. And, and the authority that gets to make that determination is the school.
Jeffrey Rosen: [00:16:00] Thank you so much for that. Will tell our listeners more about that interesting exchange between Justice Sotomayor and David Co- Cole. As Francisco says, Justice Sotomayor expressed concern about the case of a student, a young girl, who goes outside of the house walking to school with a group of classmates, walking up and saying, "You're ugly. Why are you even alive?" That's not a true the- threat suggests Justice Sotomayor. They're not threating with bodily harm. It's not harassment at all.
Under your theory of the case of the school would be powerless. David Cole conceded that the school could make participation in the extracurricular activity a condition of not engaging in foul speech on social media, if that was a reasonable condition. What did you think of that concession, and, and more broadly, what do you make of the fact that Justice Sotomayor and other justices on both sides of spectrum were concerned about whether speech that was bullying but didn't rise to the level of legal harassment could be regulated?
Will Creeley: [00:16:59] Yeah, let me push, push back on the concession point a little bit with regard to conditioning activity or participation in ex- extracurricular activities on some kind of team code of conduct. What I think Mr. Cole and, and the ACLU and the ACLU Pennsylvania representing BL argued quite clearly, I, I think very persuasively, is that while the government may condition access to extracurricular participation on certain codes of conduct, including certain codes of conduct that might impact the First Amendement protected speech those limitations, according to, again, kind of well-established Supreme Court precedent have to fall by the wi- wayside when it comes to activities outside of that program. That is you can regulate the cheerleader speech when she is acting as a cheerleader.
But that's not what happened in this case. The cheerleader was speaking on a Saturday, off season, She wasn't wearing her cheerleader uniform. She wasn't talking to her, her coach during a practice. None of those conditions apply. And in a 2013 case Open Society Supreme Court made it very clear that you cannot require- you know, condition participation on this kind of broad based waiver that goes beyond the four corners of the program the government program, you're trying to participate in. So that that's the first point.
And second of all with regard to bullying this was a discussion that permeated the entire oral argument as one might expect it would. But two points on that. First of all, the Third Circuit's opinion very clearly reserved the question of bullying and harassment. What the Third Circuit said, and this is important, was that Tinker, which is again, a a redu- or a heightened authority for the government to censor speech or to regulate student speech on campus should not apply to off-campus speech.
That's important. What Mr. Cole and the ACLU and what, what my organization, FIRE, would argue is that there are a way- there are ways of addressing bullying, harassment of the type contemplated by Justice Sotomayor and others that are permissible under the First Amendment that don't require schools to use the broad brush of Tinker, which only requires the showing of substantial disruption or invasion of another student's rights to regulate.
There are constitutional harassment standards. There are constitutional bullying standards. Schools may use those. The authorities may use those when students are off campus. That's legitimate and permissible. But we can't allow schools to just apply Tinker and wave their hands and say, "This is a substantial disruption, or it's reasonably foreseeable that there'll be dist- substantial disruption here."
And and however, noble and necessarily the impulse of fighting bullying is we can't allow that to subsume students' First Amendement rights, like what happened to... here to BL.
Jeffrey Rosen: [00:19:22] Francisco, Justice Kagan asked about the Biden administration's test, which was a, a sort of moderate compromise, and as Justice Kagan put it, the test says that there's a distinction between in-school and out-of-school and we can't punish anyone for wearing a Confederate t-shirt outside of school. But once the outside of school speech is really about the school and affects the operation of the school then Tinker applies. Do you support that test and how would it work in practice?
Francisco Negrón: [00:19:51] Sure. I think that's a, that's, that's an application of actually of the, the Tinker test that has been applied by many school districts today. And one of the important things to understand about, you know, the wearing of a t-shirt is that in some schools wearing a Confederate t-shirt may be of no consequence whatsoever. But in others, it may. It may, there may be a situation where there have been racial tensions and, and perhaps that the wearing of that shirt is inflammatory and there's indicators that would suggest that there would be student fights or violence or outbursts in some ways.
So thi- this is the importance of the need for flexibility because the context is absolutely I think, important in this case. But I'd like to go back to, I think the point that I started out with, which really bears mentioning, which is that this case is really about Tinker in the modern age, in the age of social media and the way that students really engage in conversation.
And I have to say, I was surprised up here to hear Justice Thomas so clearly articulated oral argument, that issue, when he said, you know, asking Mr. Cole, the advocate for the student, you know, when speech actually occurs. Is it when it's written? Again, not, not spoken here, but when it's written as in a text in a Snapchat or when it's read? And of course the advocate very clearly speaking about the fact that what matters is when it's written and where it's written.
But that really belies the reality of how students engage and communicate. The reality is that cell phones are all over schools. Many parents that did math, that students for safety reasons have access to them. So we know that this is actually happening in schools, and schools need a very real time basis to be able to keep kids safe, particularly when we're talking about bullying and harassing speech.
I think also that there was a, a great concession that was made by the advocate for the student about the ability of schools to engage in some sort of, you know, preemptive regulation. And I think there was a concession about that, that that in fact could happen. The question that Justice Thomas asked again in a very uncharacteristic fashion because he tends to be the quiet one, is, is what was reasonable. And Mr. Cole going to that point about there have to be this very real indicators.
But Justice Breyer came back with that, Jeffery. And he said, you know, the reality is... It's important to know that Justice Breyer I think father was actually a school board member in San Francisco. So he understands a little bit about how these works. So it's not surprising to hear him quote a superintendent who is actually talking about the, the socialization function of a school district, and that superintendent saying, "Listen, this isn't just about classical subjects, teaching those but about all of the other things that happen around making sure kids are appropriate and learning how to be productive citizens."
So all of that, just to emphasize that, the conversation is not really about denying students speech, but about making sure that the educational mission can go forward. That's the real interest.
Jeffrey Rosen: [00:23:06] Thank you for that. Thank you for noting that Justice Breyer's father was indeed a school official. And Justice Breyer at the oral arguments said,"I'm frightened to death for writing a standard," a concern that was echoed by other justices. Will a bunch of points on the table. First, I wonder what you think of the solicitor general's test that when speech takes place out of school it can be regulated if it's about the school and affects the operation of the school, give it [inaudible 00:25:43]. That's the biggest test that's going to be put before you and so it'd be hard to apply.
And what do you think of Justice Thomas' questions about where speech occurs? And broadly tell us I gather you think because social media is so pervasive that's a ground for establishing firmer free speech protections, not more flexible ones.
Will Creeley: [00:23:51] Yeah, absolutely. I, I [laughs] very much think that again, the, the history of the past 20 years of student speech rights schools have struggled to regulate online student's speech, has only been matched by the, the meandaring and, and deeply frustrating response by courts. It's been a jurisprudential desert for 20 years.
Different courts have applied different circuits, and frankly, the Eighth Circuit in a court... in a case that your listeners may remember from a few years ago involving a high school students uploading to YouTube of rap song that blew the whistle on alleged sexual harassment by two physical education student... Teachers of of female students and, and the Eighth Circuit in a very strange en banc decision said "We don't really... we won't, we won't apply a, a Tinker standard to off-campus speech. We're just going to say that this is punishable.
And that leaves students and administrators with no guidance as to what what is or isn't crossed the line. There's this consistent questioning from the judges... or justices today as to what the line is. And I, I think that the United States' position, the deputy acting solicitor general answers in response to questioning from Justice Kagan we're really illustrative of that point.
She asked "Is this school speech? Is, is BL's speech school speech? Does it have a sufficient nexus to school? Is it sufficiently targeted at school to be regulated a school speech? And he said, yes, it falls on school speech. She said, well, that means everything is school speech, right? Because this is pretty generic.
And she gave him a series of tests. So what if a student emails answers to another student. And he said, school speech. Student emails other school scu- students that they should skip, school speech. Student emails that they should refuse homework until they change the curriculum to be more inclusive, school speech. Student tweets that there is pervasive homophobia at a public school, and other students should not go to that school, school speech.
Even if a student just tweets that a school quote, really stinks, and students should stay away that also qualifies as school speech. So under the United States test here, a student who was complaining about homophobia at his public school on Twitter, off campus in his own time that speech is sufficiently related to school that it could be regulated. That cannot be the rule.
And I take again Francisco's useful points about the need for schools to be involved, but it has to be consistent with the First Amendment because just as they're shaping student they're inculcating students in the values of of citizenship to use one of the courts phrases from a 1980 school speech. "So too are they inculcating the students the value of the First Amendment.
And again, if everything is school speech, if every time a student talks about where they spend most of their waking hours to friends is, is regulated sufficient- subject to regulation by the government we are teaching students a disastrous lesson about government power and teaching them that their First Amendment rights are illusory and will not protect them against punishment for dissent.
Jeffrey Rosen: [00:26:27] Francisco, what did you hear in the argument about the justices concerns about the regulation of political and religious speech under Tinker? Chief Justice Roberts asked Lisa Blatt, "You've said can't... schools can't regulate political and religious speech. They can regulate speech from off campus that's directed at the school. What do you do with political religious speech that's directed at the school, signs that students are carrying around off campus that say they don't approve the school bond funding a referendum? T- tell us about the responses and, and why you'd think that Tinker is sufficient to protect political and religious speech.
Francisco Negrón: [00:27:03] Right. I think actually Lisa Blatt, counsel for the school was, was quite clear that we're not talking about schools ability to regulate political and religious speech, which she made quite clear was protected and what was not at issue in this case. A, a number of questions around that. I think even Justice Alito expanding it beyond religious political to include moral speech and sort of just one nuance to what Will just said that in response from the government, from the solicitor general to the question about other homophobia speeche.
But actually what the solicitor said is he parsed it. He said, well, the first part of that question is a political speech because it's... you know, there's homophobia, but that the second piece that had to do with sort of a, a personal action of the student, that part could be regulated. So even the government recognized that there's that just sacrosite protection for political and religious speech.
I think that for school districts... And really what we saw the court doing here was really trying to get their head around this whole notion of what a test should be if they're going to rewrite one here. And I really love what Lisa Blatt said to the court, which is that what the Seventh Circuit does with all of its, you know, tests for, you know, the location, is it school speech, and then it's sub-series of tests that it creates this Frankenstein like mashup, right, mashup being my word, although she used the word mash.
And, and it reminds us of, of the difficulty with it. And I think Justice Coney Barrett here, particularly, you know, catching onto that phrase and talking about the fact that, you know, are we really expecting school districts to have this kind of level of constitutional discernment that even, you know, in this court the justices were, were befuddled by. And I think that goes to the whole question of what do these rules ultimately mean? What we want is what we want is for schools to be safe. We want the ability to have schools be able to act and respond to threats of bullying and harassment. Those are the real pieces that are at issue here. And what we would hope is that ultimately an opinion of this sport doesn't paint so broad that it restricts the ability to do that.
Jeffrey Rosen: [00:29:35] Will did you hear a single justice who was clearly sympathetic to the Third Circuit test? Who was most sympathetic to it, and given the fact that many of the justices seem to be grappling for some kind of narrower ruling, what kind of narrower ruling could you imagine them moving around?
Will Creeley: [00:29:53] Sure. I, you know, I think the student's case received surprisingly warm reception from my ears. I thought there was a deep degree of skepticism among the justices, and I would say appropriately deep as to Ms Blatt's argument in favor of the school. Justice Barrett said that she may have good policy reasons, but certainly it's not doctrinally supported.
A number of justices pushed her as to how the lower courts and school administrators could be expected to apply tests that carved out space for quote unquote political or religious speech but, but did not address the kind of speech that they were concerned about students being punished for that we documented our brief. So I- I'm a lousy prognosticator, Jeffery. So I won't hazard a guess only to have folks remind me on Twitter just how wrong I was.
But I left this oral argument feeling better than I did when I went into it. And I think there was a,a noted appreciation for the high stakes for students speech rights on behalf of the justices, both in their questioning of of Ms. Blatt for the school district and also in the questioning of the solicitor general and Mr. Cole for the student.
I will say that one to your question as to a narrower test, there's a illuminating exchange between Justice Alito and Mr. Cole legal director for the ACLU for the student where he, he said there's a big gap between the broad free speech issues that we're talking about in the particular instance in this case. If we're going to address broad rules, we need a clear line. If we want to dispose of the case without addressing those issues could we simply say that tinker applies in school? We look at the comments made here and what they substantively boiled down to is a student saying she doesn't like her school. And we simply rule that a school can't discipline the student for off-campus speech it it doesn't do anything more than say, "I hate the school."
And Mr. Cole very artfully said, "Well, we'd be very satisfied if you dismiss this case as in providenlty granted or whether you say that under no conceivable test this could be punished." And I, I, I agree. So we may see a narrow ruling like that because I do think there is quite a bit of again, very warranted skepticism as to a broad based expansion of Tinker. And it's- it is a very blunt instrument to regulate speech to off-campus student speech and what that might sweep in.
Jeffrey Rosen: [00:31:52] Thank you for that. Francisco, same question to you. Without a predicting of which justices did you hear as being most supportive of the Third Circuit test. Justice Barrett did indeed say that you may have good policy reasons for extending Tinker outside of the school environment, but she didn't see a lot of doctrinal support for that. And after giving us a sense of the different positions that you put on the court, what kind of narrower ruling could you imagine?
Francisco Negrón: [00:32:17] Well, I'm gonna go out on a limb here and agree completely with Will that neither of us should look into a crystal ball and predict the outcome because that I think is, is one sure. Way to lose one's credibility. But I, I would say this, I think... I also agree that there was a skepticism from the justices a- about the punishment issued here, the discipline that was issued here. But, but I heard that almost as a question of degree, separate and apart from the question of the ability to regulate some kinds of speech.
And, you know, the, the other side of this is that I heard a clear recognition of the importance of addressing comments that were threatening, that were harassing, that were bullying, and certainly concessions from Mr. Cole on behalf of the student about the importance of that. Although of course he would use a different mechanism to, to allow the school to get to those.
But I think that, again, not going to projec. But certainly I heard questions of degree about proportionality of the punishment, certainly coming from Justice Kavanaugh and whether that was the appropriate route to take, but then also dialing that back and Justice Kavanaugh himself saying, "But I was a bear." Right. And that's really a historic and traditional recognition of, of the deference that courts um, have extended to educators.
And they should rightfully do that because the education of young people is no small feat. We're talking about different levels of development, different ages of course, different experiences in life. There's a whole conversation, that whole colloquy about, you know, the student being five years old and reacting, you know, to a threat in a certain way, perceiving a threat. A five-year-old might perceive something as a threat work, 12 year old might not. That's part of identifying sort of the, the individuality, the extreme individuality that's at, at play in these cases and why the court should defer. So we're hoping the[inaudible 00:37:38] that way.
Jeffrey Rosen: [00:34:24] Well, it's time for closing arguments in this excellent conversation. And the first one is to you, Will. Please tell We The People listeners why this case is important and why they should care about it.
Will Creeley: [00:34:36] Absolutely. Well, in 1969, the Supreme Court made clear that students don't check their First Amendment rights at the school house gates. And that animating concern for student speech rights should be reaffirmed by the court here to make clear that students don't lose their First Amendement rights when they log onto social media on a Saturday afternoon to talk to their friends either.
If the court rules in favor of the school district, I really fear that what we will see... And I know this from having looked at the local newspapers from across the country for the past 20 years, that student speech that is political, that is dissenting, that is crude in a way that adults don't like, as it often may be will be punished. And those students will taught a terrible lesson about what the first amendment is in actuality.
And to avoid that result, to make clear that students retain the right to debate, to criticize, to offend to joke the student issue here needs to be found protected. And the court should clarify that Tinker and it's uh, a grant of the government with increased surveillance powers over students speech because of the special characteristics of the school environment does not extend off into the ether to cover students no matter where they are at 24/7 matter where they are in the country. We need some clarity from the Supreme court, otherwise we'll see more censorship. So here's hoping for a good result.
Jeffrey Rosen: [00:35:51] Thank you so much for that. Francisco, the last word is to you. Why is this case important and why should We The People listeners care about it?
Francisco Negrón: [00:35:59] So listeners should care about this case because schools have an obligation and an opportunity to ensure that students are safe, students that are in their custody during the school day and during school activities. And we know that the reality of the way that students communicate now, it's a lot more expansive than it did in 1969 when Tinker was first decided. Students now experience reality, not as virtual reality, but as lived experiences, actual reality.
And so it's time for the court to take notice of that and really extend those coverages to the school district so that the school district can continue on its mission to make sure that children are safe, those children within its care, particularly when we're talking about questions of bullying and harassment.
Jeffrey Rosen: [00:36:48] Thank you so much, Will Creeley and Francisco Negrón for a concise, illuminating, and comprehensive discussion of the constitutional stakes in the extremely important First Amendment case Mahanoy Area School district versus. Francisco, Will, thank you so much for joining.
Will Creeley: [00:37:10] Thank you so much, Jeffrey.
Francisco Negrón: [00:37:11] Thank you very much, Jeffrey.
Jeffrey Rosen: [00:37:16] This show was engineered by Dave Stotz and produced by Jackie McDermott. Research was provided by Mac Taylor, Lana Ulrich, Anna Salvatore who we're thrilled to welcome to the NCC from her great stint as the founder of high school SCOTUS blog. The homework of the week, please read Judge Krause's opinion for the Third Circuit in this case, and write to me and tell me whether or not you agree with it on constitutional grounds. And also please rate, review, and subscribe to We The People on Apple podcasts and recommend the show to friends, colleagues, or anyone anywhere who is ready and eager for a weekly dose of constitutional debate. And who among us is not?
And always remember that the National Constitution Center is a private nonprofit. We rely on the generosity, passion, and engagement of people from around the country who are inspired by our nonpartisan mission of constitutional education and debate. You can support the mission by becoming a member at constitutioncenter.org/membership. You can express support for the mission by writing to me and tell me what you think of the show and how we can do better. Or you can give a donation of any amount to support our work, including this podcast of constitutioncenter.org/donate. On behalf of the National Constitution Center. I'm Jeffrey.
