A frequent joke told among lawyers is that the best case is the one with a carload of nuns as your client and a busload of priests as your witnesses. In most cases, however, it seems more like this scene from “The Wire.”
When it comes to First Amendment law, it would be great if we had more cases in which polite, articulate young people like Mary Beth Tinker who quietly wore a black armband to school to protest the Vietnam War. Her choice led to hate mail and threats, but also a ground-breaking Supreme Court case regarding student free-speech rights. And, looking back on it now, people can understand better her underlying concerns about the war as well as her relatively mild statement against it.
Tinker v. Des Moines (1969) established that students do not shed their Constitutional rights at the schoolhouse gate. It also provided protections for students who wish to express themselves against intrusion from school overreach.
Unfortunately, an upcoming case in which a high school student did her best “Scarface” dialogue on Snapchat could be the case that undoes a lot of those protections in a digital age:
In 2017, ninth-grader Brandi Levy said on Snapchat some version of what stressed-out students have been saying on the back of the school bus since the invention of buses: “Fuck school fuck softball fuck cheer fuck everything.”
The post was shared on a Saturday afternoon during a trip to the local convenience store, disappeared from Snapchat by Sunday afternoon, and caused no disturbance at school whatsoever—except to irritate the cheerleading coach, who banned Levy from the squad for a year.
She filed suit, and in June 2020, a federal appeals court ruled that school authorities violated the First Amendment by disciplining her for the off-campus speech. Now, the Mahanoy district is asking the Supreme Court to overturn that ruling.
The case doesn’t matter in regard to that single incident anymore. Levy is now a college student, the cheer team has had a complete turnover in terms of membership and nothing the court could do would change what happened in regard to the punishment levied at the time.
However, if the court decides to overturn that appeals court’s ruling, it could mean that schools can now actively monitor social media and punish students for ANYTHING that appears to be “objectionable.” If that doesn’t scare you, you probably had one of the six “really cool” high school principals I was always told existed somewhere.
Me? I dealt with a lot of nuns and balding guys who wore short-sleeve shirts with brown ties. This is terrifying…
This leads to the point of the post: It seems like we NEVER get the perfect Supreme Court case that perfectly showcases speech that deserves to be protected for the betterment of society. It’s never the student newspaper that was censored for reporting that the principal had stolen money or the kid with the bullhorn outside the school telling people not to eat cafeteria food because the workers were being abused.
It’s always something with an F-bomb, a nude pick or a drug reference that we get to stand behind and say, “Hey, look… You CAN’T censor this because… well… geez…”
We don’t get Superman, Batman, Aquaman or Wonder Woman as our defenders of freedom.
We get The Suicide Squad:
In other words, we get a “mental defective dressed as a court jester,” a “guy who wears a toilet seat on his head” and a “shark with hands,” to quote the red-band trailer I’m not allowed to show you here…
If you think I’m kidding about this, consider the following court cases on important topics:
The landmark case for online speech and defamation? Rocker/Actress/Woman I’d be most scared of meeting in a dark alley Courtney Love won and survived an appeal of her “twibel” case (Twitter plus libel) in 2014. Love, whose outlandish behavior and heroin abuse have long been the subject of media coverage, stated that an attorney had been “bought off” instead of helping Love recoup parts of her late husband’s estate.
A crucial Supreme Court case regarding speech at school sponsored events? Morse v. Frederick, also known as the “Bong Hits 4 Jesus” case. A student held up a sign at an event proclaiming the cryptic message. When the sign was taken away by school administrators, the student later sued claiming his First-Amendment rights had been violated. The SCOTUS ruled that schools have the right to remove pro-drug messages, even though students have some free speech rights at school.
The case that dealt directly with a reporter’s right to maintain confidential sources? Branzburg v. Hayes, which dealt with reporters being forced to disclose the names of sources who were manufacturing hashish.
And, of course, the case involving satire and hyperbole in regard to public figures comes from the apparent patron saint of this blog, pornographer Larry Flynt.
Now, the question of whether students can get smacked around for writing things on their own time on their own social media that school officials dislike comes down to one foul-mouthed 14-year-old cheerleader.
The problem with all of these cases is that it becomes so much easier to suppress speech that is unpopular, vulgar or otherwise disagreeable.
If the reporters in Branzburg were protecting whistleblowers who had uncovered some sort of dark plot by a foreign government to go all “Red Dawn” on the U.S., it would likely feel better to the courts to support their interests in remaining anonymous.
If the school was trying to suppress speech about the superintendent stealing money from the district to buy weed, maybe a “No Bong Hits 4 Superintendent Smith” sign would have garnered a different outcome.
If Sally Fields had tweeted about potential legal malfeasance (while wearing her “Flying Nun” costume), it might not have felt like the entire future of online free speech hinged on whether the defendant was going to lose her mind on the stand and start throwing things at the jury.
If the cheerleader had done her rant without the f-bomb, maybe the courts would be more inclined to side with her at every level.
However, we don’t get to choose the cases that decide our fate, which is why it’s important to make sure that we stand up for all speech because what one person thinks is a felony charge, others might consider a misdemeanor at best. In the mean time, keep an eye on this one, as it’s got a lot more at stake than a lot of people think.