The Supreme Court recently announced its decision in a case called Mahanoy Area School District v. BL regarding a school’s ability to discipline a student for express and symbolic speech made off-campus, in this case on a social media app called Snapchat. This particular student did not make the varsity cheerleading squad at her school and vented her disappointment online with obscene gestures and the F-bomb thrown out at the school, at the squad, at softball, and at life in general. Snapchat is supposed to assure that within a short time the post will disappear so no lasting harm should come of it. Unfortunately, the post got back to those at the school responsible for the cheerleading squad and she was suspended from the junior varsity squad for a year as it was thought by those in charge that her rant was not conducive to team cohesion and other known team rules.
The Supreme Court confirmed lower court rulings, 8-1, that the School District had violated this student’s Free Speech rights under the 1st Amendment to the United States Constitution. Article after online article has applauded this ruling. Miss Constitution thinks it ludicrous on its face and an unfortunate distortion of what constitutes Free Speech within the context of the 1st Amendment. For a review see, What Free Speech Means in Our Constitution, April 2020. The case was brought to Court by the American Civil Liberties Union in conjunction with the parents who are the legal guardians of the child in question.
Miss Constitution is deeply concerned because this type of case brushes up against the relationship between parents and their children and the extent to which a governmental entity (the school) can impose its will on a child outside of the campus of the school where there is no official school function, but where there are published rules. Obviously, we are dealing here with children. Children are not completely developed mentally or emotionally and are therefore treated specially relative to Constitutional liberties. In 1969, in a Supreme Court case called Tinker v. Des Moines Independent School District, students for the first time were deemed to have limited 1st Amendment freedom of political expression. In this case, the political speech was symbolic, the students wearing armbands in opposition to the Vietnam War. The school had sent the students home and told them not to come back unless the armbands were gone. The Court ruled that neither students nor teachers shed their 1st Amendment rights to free political speech at the schoolhouse door. They did uphold the right of schools to regulate political speech if the speech would materially and substantially disrupt the work of the school, but did not find the armbands disruptive enough to uphold the school’s decision. In a long dissent of the Tinker decision, Justice Black states: “I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent.”
And so, the lines were drawn in 1969. Who has authority over these children? How far does the US Constitution go in protecting their rights against school authority? Have school and parental authority, in fact, been eroded by Supreme Court decisions like Tinker and the other cases that have followed? Was Justice Black right in what he saw as a troubling interference by the Supreme Court into the affairs of public schools regarding good order and discipline?
Let’s review. Speech protected by the 1st Amendment, whether express or symbolic, must be speech about public policy, including social issues. For instance, where publicly funded universities ban political speech by students or professors or guest speakers because they do not like the political point of view of the speaker, it is a classic 1st Amendment violation of the right to express opposing views on public policy. The ACLU should be filing cases continuously regarding this “chilling” of political speech where it is most appropriate that the speech be heard – college and university campuses. In the recent case, the 14 year old’s speech had nothing to do with public policy or an important minority political view that would need protecting. The child’s speech was vulgar, her gestures obscene, as she was having a small tantrum about not being selected for the cheer-leading squad. A teenage tantrum worthy of our Courts? Her speech does not even meet the Miller Test, in which the Supreme Court said that speech which lacks serious literary, artistic, political, or scientific value is not Constitutionally protected. F – the school, F – everything – is not exactly literary, artistic, political, or scientific. Obscenity is not protected by our Constitution. And yet, Justice Breyer wrote in the current Opinion: “America’s public schools are the nurseries of democracy.” A teenager’s foul mouth and gestures a nursery of democracy?
This is a matter for the child’s parents. In addition to those responsible for the cheerleading squad at school who wish to maintain some kind of quality-control for the team, her parents have a duty regarding how they wish to bring up their daughter and the level of her manners and decorum. The Court should have ruled that both the District Court and the Court of Appeals had wrongly applied the 1st Amendment to these facts and dismissed the case out of hand. Miss Constitution would add that even if speech is deemed worthy of protection under the 1st Amendment, it is subject to time, place, and manner restrictions. That is why Olympic star Gwen Berry’s symbolic political speech regarding the Olympic podium is not a Constitutionally protected right. Miss Berry’s speech is not at the right time, it is not at the right place, and it is not in the right manner when representing the United States in international competition under international rules. As Justice Black said in 1969, “I have never believed that any person has a right to gives speeches or engage in demonstrations where he pleases and when he pleases.” Miss Constitution would add that where children are concerned, parents and schools should be given the benefit of the doubt, and their authority should be respected and protected by the Courts of this nation. Parents, and those they ask to teach their children, must teach all students that a “right” comes with a “duty.” It is learning that duty, and why that duty is important, that is, in part, why we have schools at all. It is also important to teach that we have a body of law, Unwritten Law, that calls us to courtesy, kindliness, and sportsmanship. Our Courts could have helped this teenager, her family, and all Americans regarding these fine distinctions.