ACLJ Stands up for Student Speech Rights, Not Expletives, in Supreme Court Case

The ACLJ has filed an amicus brief in the U.S. Supreme Court defending the free speech rights of students while noting that the First Amendment does not give minors the right to broadcast foul language to other minors.

The case, Mahanoy Area School District v. B.L., involves a legal fight between a high school cheerleader and her school. The ACLJ filed its friend-of-the-court brief “in support of neither party” because “[b]oth sides of this case have the constitutional law wrong.”

The case arose from a disagreement over who should make the varsity cheerleading squad. A minor identified as "B.L." had made the JV team her freshman year and hoped to make varsity her second year. But the coaches kept her on JV again. Especially galling to B.L. was the fact that an incoming freshman student went straight to varsity cheer without having a year of JV first.

Thoroughly unhappy with this turn of events, B.L. took to social media to vent her frustration. Using Snapchat, she sent a message showing her making an obscene gesture with a caption repeatedly using the “f” word to blast her school and the cheer team. The message went to some 250 friends, one of whom was the daughter of a cheer coach. Word of the “snap” got back to both cheer coaches, who responded by removing B.L. from JV cheer as well – though only for one school year. B.L.’s parents sought to undo the punishment; and when the school did not relent, they sued on B.L.’s behalf, claiming the school discipline violated B.L.’s First Amendment right to free speech.

Here at the ACLJ, we have a strong interest in defending student free speech rights. Our Chief Counsel, Jay Sekulow, successfully argued two landmark student speech cases in the Supreme Court, Mergens and Lamb’s Chapel, and also successfully argued for minors’ speech rights in a campaign finance case, McConnell v. FEC.

As we explain in our amicus brief in the cheerleader case:

The imbalance of age and authority between student and teacher or administrator make the mere assertion of free speech rights daunting for most public school children.  Moreover, public schools, like colleges and universities, face a constant temptation to impose a suffocating blanket of political correctness, institutional image protection, or both, upon the educational atmosphere.  Given these circumstances, the vigorous defense of free speech rights in the public schools is a matter of considerable importance.

On the other hand, ACLJ attorneys have supported government efforts to keep the channels of communication, particularly broadcast media, free from pornography and foul language, particularly to protect families and children from such assaults on their senses. The “foul-mouthed cheerleader” case therefore poses a threat to both ACLJ concerns. Consequently, our brief aims to “thread the needle” and help make sure the Supreme Court gets the law right.

Our amicus brief deals first with the school district’s arguments. The Mahanoy school authorities argue that public schools should have the power to discipline any student – and even member of the public (presumably including parents) – whose speech has an adverse impact on school operations, even if the speech was made off-campus and not part of any school program (such as online learning, field trips, school sports, and school clubs).

We argue:

Were schools to enjoy such general police power over anything, anywhere, that “substantially disrupts school activities or interferes with other students’ rights,” [quoting from the school district’s brief], school authority would be enormous. Schools could supplement or supplant parents in disciplining students – and even non-students (“even members of the public”) – for a host of off-campus misconduct, and even for conduct that is not necessarily wrongful but which has a disruptive impact on school operations. [For example], schools could punish students for reporting teacher misconduct to their families, on the theory that the report – even (or perhaps especially) if 100% accurate –  provoked protests or annoying parent inquiries. Clever – or amateur – student satires of teachers or administrators posted online might, like any satire, adversely impact the target’s work. Schools could stifle the off-campus expressive activities of students whose notoriety as public advocates “substantially interferes” with student focus in the classroom, so long as they invoked a viewpoint neutral rationale.

We continue:

To be sure, many of the concerns the school district identifies are valid and important. The remedy, however, is not to give the public schools general police power over anything that adversely affects school operations. Such a power would be overbroad and would ignore the availability of existing alternative means of addressing student – and non-student – misconduct. . . . 

Importantly, schools are not the only resource for addressing student misconduct. To the contrary, the “primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” . . . Aside from parents, other adults – coaches on nonschool sports teams, scout leaders, religious leaders, and others – will be available as well to tamp down on the misbehavior of minors. And of course, should the misconduct rise to the level of criminal or civil violations, such as cyberbullying, . . . there are ample law enforcement remedies already in place or capable of enactment.

Our amicus brief points out another glaring problem with the school district’s assertion of power over students:

It is . . . irrational to act as if schools, and only schools, can address the misconduct the school district identifies. This would mean that the same misdeed, with the same pernicious impact on school operations, can be remedied or not depending on whether or not the perpetrator is a current student. A former student, a student at a different public or private school (or home school), and non-students generally are certainly capable of bullying, harassment, [etc.] By placing the onus of enforcement on school officials, the school district’s approach would miss all of these other malefactors.

And we continue:

The question is not whether a particular minor’s behavior should be punished, but instead whether government schools must be the ones to tackle the problem. B.L.’s crude, juvenile use of Snapchat on her own time and outside of school activities is a perfect example of the kind of misbehavior that should be addressed by nonschool authorities, ideally parents.

Our amicus brief does note that there may be a different rule in dealing with the narrow context of voluntary school teams:

Under this much narrower contention, team members are treated analogously to employees, as to whom an employer can insist upon team cohesion and properly consider extramural messaging that may undermine the morale and chemistry of the work environment. This argument has considerable force and does not entail giving the school supervisory authority over students’ private lives in general. Rather, the school could only properly consider communications (or misconduct) by team members (not other students, even if they voice the same gripes). Moreover, discipline could only address disrespectfulness or other misconduct that undermines team morale and chemistry, and the discipline would need to be limited to the team context (e.g. suspension from team events).

And in fact, the school district made this argument in the lower court proceedings – since, after all, the school only kicked B.L. off a team.

So far, however, in the Supreme Court, the school district has focused instead on a far broader, more aggressive – and unjustifiable, indeed unconstitutional – claim of general disciplinary authority over students’ lives. Whether the school district will back off and try to win on narrower grounds as this case develops remains to be seen.

Turning next to B.L.’s claim of a free speech right to blast out crudity, we disagree here as well. Under Supreme Court precedent, several lines of cases point to this conclusion. First, the Supreme Court has explained that the First Amendment does not protect everything. As the Court stated in 1942 in Chaplinsky v. New Hampshire:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words . . . 

More recently – in 2009 in FCC v. Fox TV – the Court declared that “references to excretory and sexual material surely lie at the periphery of First Amendment concern.” The Court has particularly emphasized the government’s ability to protect minors and their families from the broadcast of crude language, most famously in the 1978 case of FCC v. Pacifica Foundation, involving comedian George Carlin’s monologue about dirty words (including the word the cheerleader used in the present case).

We, therefore, point out:

As in Pacifica, the speech at issue here is “accessible to children,” . . .  – in fact was directed at them, being “visible to about 250 [Snapchat] ‘friends,’ many of whom were [fellow] students,” . . . . Further, the message was transmitted through social media, which have “a uniquely pervasive presence,” Pacifica, . . ., and arguably dominate the lives of today’s minors.

We also point out that if the First Amendment:

[W]ere to have enshrined the crudest of expletives . . . even for persons addressing minors, there would be little if anything that could be done to fend off foul language in any context . . . from prime-time TV to strangers spewing expletives in the presence of children to hotheads breaching the peace with profanity . . .

[T]his case involves a blanket spewing of foul language, used as an offensive, provocative expletive, intentionally broadcast to minors in a medium pervasively accessible to those minors.

The Supreme Court is likely to hear oral argument in the case of Mahanoy Area School District v. B.L. sometime in the fall of 2021. When it does, there will likely be probing questions for both sides to answer. Our hope is that the Supreme Court stands strongly for student free speech without declaring the foulest of language sacrosanct.