First Amendment free speech cases that reach the U.S. Supreme Court are never about inoffensive words, it seems. While individuals, businesses or organizations may try to shut down speech that offends them, the legal situation changes drastically when the government attempts to do so, and we should appreciate it when the courts step in and remind us what the First Amendment is designed for.
This week the Supreme Court decided an important free speech case involving a public high school cheerleader in Mahanoy City, Pennsylvania. The facts in this case – like other free speech cases involving students – don’t paint the cheerleader in a sympathetic light. B. L., as the court’s opinion designates her because she is a minor, tried out for a varsity cheerleading position as well as a spot on her school’s softball team. When she only made the junior varsity squad and was also equally disappointed in her lack of success in her softball tryout, she vented on social media.
Her Snapchat post, using quite vulgar language, criticized her school, cheerleading and softball. She was off campus at the time she posted it, and it was after school hours. Social media being what it is, her message made it around the school in a hurry and into the hands of the cheerleading coach, who promptly suspended B. L.’s participation in cheerleading for one year. Her parents sued on her behalf to reverse her punishment, and two lower courts, as well as the Supreme Court, agreed with her.
(I should interject a reminder here that the First Amendment applies here because a “public school” is a government entity. Private schools are a different matter.)
I’m sympathetic to the school’s action here, but only to a point. As unpleasant as First Amendment free speech cases can be, they secure key protections for all of us. The majority opinion in this 8-1 decision (Justice Clarence Thomas was the lone dissenter), was written by Justice Stephen Breyer, and he points to the larger picture.
“It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein,” Breyer wrote. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
Breyer’s opinion also explained the duty of schools to cultivate and protect unpopular expression, since “America’s public schools are the nurseries of democracy.” While schools may restrict on-campus speech in certain circumstances, including where the speech disrupts the educational process, he warned that the school’s rights don’t always extend to off-campus speech.