Save the Cheerleader, Save the World

[Bob78164]

Or at least the First Amendment as it applies to students.

The Supreme Court has held 8-1 (Thomas dissenting) that a public high school did not have the right to discipline a junior varsity cheerleader for her off-campus (and outside-school-hours) Snapchat rant profanely objecting to the refusal to place her on the varsity squad. As the Court recognized, if schools can discipline both off-campus speech and on-campus speech by students, then students effectively have no First Amendment rights. --Bob

[BackInTex]

Interesting. I wonder what Thomas' objection was. I could be convinced depending on what the words used by the student were and what the "discipline" was. Schools should be able to protect their reputations from outside speech, otherwise they lose their effectiveness to deliver education. I don't know the specifics of this but I tend to agree that outside activities are beyond the purview of schools.

[Bob78164]

Interesting. I wonder what Thomas' objection was. I could be convinced depending on what the words used by the student were and what the "discipline" was. Schools should be able to protect their reputations from outside speech, otherwise they lose their effectiveness to deliver education. I don't know the specifics of this but I tend to agree that outside activities are beyond the purview of schools.

The discipline was throwing her off the squad. The speech was a Snapchat (an app that makes photographs evaporate after a day) saying (in relevant part and with a raised middle finger), "Fuck cheerleading. Fuck school." One of her "friends" used her cell phone to take a photograph of the post before it evaporated and then shared it with, among other people, the daughter of one of the squad's coaches. Things escalated from there.

Schools have no more right than any other entity to "protect their reputation." That's a standard that would virtually immunize them from criticism. They have rights at off-campus school-sponsored events, they have rights regarding speech that might be attributed to them (e.g., school newspapers), and they may have rights regarding speech that targets specific individuals or groups, to deal with issues such as harassment and cyber-bullying. (I read the Court's opinion as leaving that issue open for another day.) They most certainly do not have a right to protect their reputation.

I didn't read Thomas's opinion, but his usual approach is to take his best guess about how 18th Century America would have handled the issue, and then import that approach to the 21st Century. --Bob

[BackInTex]

They most certainly do not have a right to protect their reputation.

Really? You have may want to put some boundaries on that. Everyone has a right to protect their reputations. Even lawyers , as you've implied here before.

If what you posted was all that was said and kicking her off the squad was all the "punishment" there was, I could go either way. I could argue, based on her posts, kicking her off the squad was not a punishment, but a reward.

[Bob78164]

They most certainly do not have a right to protect their reputation.

Really? You have may want to put some boundaries on that. Everyone has a right to protect their reputations. Even lawyers , as you've implied here before.

If what you posted was all that was said and kicking her off the squad was all the "punishment" there was, I could go either way. I could argue, based on her posts, kicking her off the squad was not a punishment, but a reward.

No more right than any other entity (as I explicitly said in my first sentence), and no special right to do so deriving from their status as schools (as I thought was clearly implied from context). --Bob

[Bob Juch]

To clarify, she was kicked off the junior varsity squad for her post about not making the varsity squad.

[kroxquo]

According to USA Today, this is the gist of Thomas's dissent:

"Thomas took issue with that approach in his dissent. He wrote that historical factors suggest schools could regulate off-campus speech that could harm the school, its faculty or other students. Thomas said he believes that standard was met in Levy's case.

'The court’s foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the court’s opinion today means,' Thomas wrote."

So yeah, pretty much what Bob said.

[Bob78164]

According to USA Today, this is the gist of Thomas's dissent:

"Thomas took issue with that approach in his dissent. He wrote that historical factors suggest schools could regulate off-campus speech that could harm the school, its faculty or other students. Thomas said he believes that standard was met in Levy's case.

'The court’s foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the court’s opinion today means,' Thomas wrote."

So yeah, pretty much what Bob said.

It's also important to understand that Justice Thomas disagrees with the "incorporation doctrine," which concludes that the Due Process Clause of the Fourteenth Amendment makes the Bill of Rights applicable to state and local governments. So if Justice Thomas had his way, there wouldn't be a constitutional issue at all because state and local governments are at liberty to enact laws suppressing speech.

It's really difficult to overstate just how radical Justice Thomas's jurisprudence would be, if it were shared more widely on the Court. --Bob