Yesterday Paul Mirengoff at Power Line Blog posted an article about a case that will be heard by the Supreme Court today. The case is particularly interesting to me because it illustrates how social media has impacted the lives of our children. Essentially a student threw a temper tantrum on social media after she failed to make the varsity cheer-leading team. Back in the days of dinosaurs when I was in school, she would have done this in the privacy of her own home, calmed down, and that would have been the end of it. Unfortunately when you post something on social media, people see it and sometimes react. That’s what happened.
The article reports:
Tomorrow, the Supreme Court will hear the case of Mahanoy Area School District v. B.L. Brandi Levy (B.L.) is a high school student who, after failing to make the varsity cheerleading team, went on social media to post a picture of herself raising her middle finger under the caption “F*** school f*** softball f*** cheer f*** everything.”
The school suspended B.L. from junior varsity cheerleading. It found that she had damaged its image and had violated its policies, to which she had assented, requiring respect for coaches and prohibiting “foul language and inappropriate gestures.”
The suspension produced the lawsuit now before the Supreme Court. B.L. prevailed in district court and at the appellate level. The district court concluded that her mini-rant did not disrupt the school’s operation and therefore was protected under the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District. In Tinker, the Supreme Court upheld a student’s right to wear an armband at school in protest of the Vietnam war because the protest was non-disruptive.
The Third Circuit affirmed. It held, however, that the Supreme Court’s decision in Tinker does not apply to off-campus activity. Even disruptive speech by students is protected if it takes place outside of school, the panel majority said. A third judge on the panel, in a concurring opinion, applied Tinker to off-campus speech, and agreed with the district court that B.L’s speech was not disruptive.
I am not condoning her behavior or saying that she was smart to put the rant on social media, but I do agree that she does have the right to free speech.
The article concludes:
As to what should replace the “disruption” standard, Will points to a brief filed by three law professors, one of whom is Eugene Volokh. Their brief argues that while schools may control virtual as well as physical classrooms, they may not control online or other speech outside the “school context.”
Under this approach, schools could punish online, school-related cruelties, but only when they are about “the characteristics of individual people, not about broader policy matters.” Thus, schools would not be powerless to punish online bullying. However, as Will describes the brief, the professors argue that only truly threatening speech can be punished, not speech that threatens only the serenity or the sense of “safety” of the hypersensitive.
The approach of the three law professors, as described by Will, seems preferable to a “disruption” standard, at least in cases of off campus speech. The distinction they draw between speech about individual characteristics and speech about broader policy matters seems both easier for courts to adjudge and more attentive to free speech concerns. Off campus speech about policy matters may be disruptive, but unless it poses a true threat to safety, it should be permitted.
Or so it seems to me.
Never put anything in writing (or on social media) that you wouldn’t want your mother to see on the front page of The New York Times. Following that advice would solve a lot of problems.