The First Amendment, in part, says: “Congress shall make no law … abridging the freedom of speech.”
For many years the protections of the Bill of Rights, including the protection of freedom of speech, only restricted the power of the federal government. States were at liberty to deny due process, cruelly and unusually punish people, and restrict gun ownership for whomever they chose. Massachusetts had a state-established religion until 1833. Fortunately, with the combination of the 14th Amendment and a few Supreme Court cases, most of the protections of the Bill of Rights, including freedom of speech, now apply to both state and federal governments.
So as a citizen of our fair nation, do you have the freedom to say whatever you want? Can the government truly make no law abridging the freedom of speech as the constitution says?
The government makes all kinds of laws restricting speech. It is against the law for someone to lie about the effects of a medicine they are selling. Threats of violence are illegal. The government also makes laws concerning ownership of words through copyright and other intellectual property statutes. Disney owns Mickey Mouse. Congress says so.
The above examples are probably areas we can all agree on where we want government involvement with speech.
Students have even fewer protections to their speech than the rest of us. Despite most schools being governmental entities, schools regularly and routinely restrict the speech of citizens. Most of this regulation is sensible and supports the goals of a school system. Talking during a lesson is disruptive, and it can affect the learning of both the students talking and those around them. Therefore, schools have the power to restrict the speech of students on campus. Similarly, wearing obscene clothing or engaging in disruptive political discourse can also be a distraction, and courts have long held that schools can restrict most any kind of expression that can negatively impact learning.
What about speech off-campus? What about speech on the internet? Can a school restrict that kind of expression? Consider the actions of B.L. In 2017, B.L. was a ninth-grade student in Pennsylvania. She tried out for the varsity cheerleading squad, but unfortunately, she only made the junior varsity squad. Upset and dismayed, she posed a short vulgar message on the internet social media service Snapchat accompanied by a photograph of herself with a friend with their middle fingers raised. The vulgar message expressed displeasure with “school,” “softball,” “cheer” and “everything.”
Another student took a photograph of the social media post and shared the picture with the cheerleading coach, who also happened to be her mother. The coach brought the missive to the attention of the administration and B.L. was suspended from cheerleading activities for one year. The school defended its decision by saying the punishment was needed to “avoid chaos” and maintain a “teamlike environment.”
Like any good American, B.L. sued. B.L. won her initial lawsuit, and in June of this year, the Third District Court of Appeals agreed with the lower court’s decision and found the school had overstepped its authority. The school district was ordered to pay nominal damages and expunge B.L.’s disciplinary record. The school has now appealed to the United States Supreme Court. The appellate court focused a good deal of attention on the facts that the offensive social media post was made over a weekend and away from school grounds, and the court cited a Supreme Court case which noted that a school’s “arm of authority does not reach beyond the schoolhouse gate.”
In its appeal to our highest court, the school district opines that, especially in the age of COVID-19, restriction of online speech by school districts is essential. The district worries that the precedent set by this case will hamstring other districts nationwide. B.L. and her supporters insist that schools have no business regulating off-campus speech, especially speech critical of the school. They insist that schools should not have the authority to reach into a student’s home and declare certain statements forbidden.
This issue now rests with the Supreme Court and, quite possibly, with Chief Justice John G. Roberts Jr., who has described himself as, “probably the most aggressive defender of the First Amendment on the court now.” He has made this description despite having written the court’s most recent decision on free speech in schools in 2007. While writing for a 5-4 majority, Roberts ruled that schools are absolutely allowed to restrict off-campus student speech, particularly when it involves banners suggesting “Bong hits for Jesus.”
I’d suggest that all students be careful what they post online. You might not have the freedom of speech that you expect.
John Judkins is a Greenfield attorney.