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Chief Justice Roberts wonders whether schools can regulate students' off-campus speech that has to do with religion or politics.
Lawyer for the school district says that schools can't regulate that type of political off-campus speech under Tinker. They can only punish if the student is, say, picketing outside a teacher's house.
Justice Thomas tries to parse which off-campus speech, exactly, schools can punish. Can students take sides on "antifa and BLM," even if that could be disruptive?
Students can talk about BLM, the school lawyer responds, unless you're using it as "a weapon to terrorize a particular student or teacher."
Breyer asks the school district's lawyer if BL's snapchats caused "substantial disruption" to school. Breyer doesn't think it did.
Justice Alito then asks, What if a student implicates politics and then links that to someone at school? An example: a student says during the Vietnam War, "my classmate's brother is a baby killer."
The district lawyer replies that the classmate can't just take offense. The comment has to disrupt school. But Alito wonders, what's the difference? "There has to be a clear rule. That's what I'm looking for."
Alito asks, What if a student refers to a "biological male who identifies as a woman" with that person's former name?
Justice Sotomayor's up. She said that her law clerks tell her, "how much you curse is a badge of honor." If it's true, she asks, "where do we draw the line with targeting the school?" Kids curse all the time.
District lawyer says it's "silly, unfounded, has no basis in common sense" that Tinker doesn't apply to off-campus speech. Says that cheerleader targeted her classmates and coach.
Justice Kagan points out that schools sometimes regulate students' political shirts (like "Homosexuality is a sin" or "Gay Pride"). Should they be allowed to?
School district's lawyer responds that if someone is passively wearing a political shirt, that's not a problem. But wait, Kagan says. Does that mean schools have to allow political speech, no matter how disruptive? Can students bring confederate flags to school?
Depends on the context, lawyer responds. This answer perplexes Kagan. Seems to her that whether speech is "disruptive" is a vague standard.
Gorsuch is "confused" as well. Seems to me that the justices are concerned about a heckler's veto, where the school would allow political speech unless others are alarmed.
Lawyer says: Students would have to "terrorize" or "harass" a classmate for the speech to be punished. That's different, she claims, from teens casually wearing on the internet.
"As a coach and a parent," Kavanaugh says, it appears that the coach overreacted. "It didn't seem like the punishment was tailored to the offense."
The question is whether the school can punish students, the lawyer responds—not how much, or how severely. That's a separate due process inquiry.
Justice Barrett: There's nothing in Tinker that says it applies off-campus, though it may be a good policy choice. Where do you see support for this in SCOTUS precedent?
In closing, lawyer says that SCOTUS shouldn't replace Tinker with a "Frankenstein's monster" of rules. There is no "territorial switch" to Tinker.
Justices now questioning Malcolm Stewart, the Deputy SG, who's also arguing for the school. Stewart says that students can criticize teachers as long as they're not creating a "substantial disruption."
Stewart says it's near-impossible to run a sports team, like a cheerleading squad, without punishing the members' disruptive speech.
Breyer wonders, isn't off-campus speech primarily the "domain of the parents"? Stewart responds that the location of the speech is "irrelevant" if speech will disrupt school or a school program.
Alito's still curious about what it means to "target" another student. Is just mentioning them sufficient?
Alito says he's "quite concerned about the effect of this on freedom of speech." Seems to him that the "substantial disruption" standard is way too vague.
Sotomayor's concerned too. The justices are really wary of allowing schools to determine which off-campus speech will be disruptive.
"Anything that mentions the school is school speech, right? This seems pretty generic," Kagan says. She's going to go through hypotheticals and ask which would cause disruption.
Ex: "student tweets that there's pervasive homophobia at his school, and prospective students should stay away." Is this school speech? Answer: yes-- but it'll only be punished if there's a major spillover effect.
Kavanaugh says that, like Breyer, he's worried about line-drawing.
Barrett asks whether schools can require waivers of 1A rights for clubs like cheer. Stewart says no-- that'd be a "clear violation."
David Cole, ACLU lawyer, now up and representing the cheerleader. He says that students shouldn't have to "carry the schoolhouse on their backs" when w/ their friends.
Students are restricted at school. But the internet is where kids *can* speak freely, Cole says. It would be chilling if schools could punish that.
The Chief asks, Will schools have to tolerate all off-campus speech no matter how disruptive? Cole replies that schools can take action-- just not under Tinker. For ex, schools are able to regulate "severe or pervasive cyberbullying."
Cole says, if speaker is under supervision of the school, you can restrict their speech in many ways. But schools can't restrict that same type of speech when the student's at home. 1a rights= stronger at home.
Breyer's "frightened to death" of writing a new standard in this case for regulating speech. Cole replies that his position is simple. In school, apply Tinker. Out of school, you can't.
Alito brings up bullying. What can schools do w/out violating the 1A? Cole says there are already statutes throughout the country against bullying, and schools should use those.
Sotomayor's concerned about bullying. 'You're asking schools to determine when it's constitutional to punish students?'
It's getting a bit heated btw Cole and Sotomayor. She's suggesting there's a gray area btw statutory bullying and teasing that is still quite serious.
Still, it seems to me that the justices aren't grilling the cheerleader's attorney as much as they were grilling the school district
Kagan says there are some types of speech that can only be punished w/in the school context. She's pushing on Cole, implying that his position may strip schools of too much power.
Justices are still trying to parse Cole's test for regulating speech. Cole argues that under "careful definitions of bullying and harassment," schools can regulate off-campus speech.
Kavanaugh asks, what if a student posts a racial epithet about her coach? Can the school punish? Cole responds that school can sit down w/ student and explain why that was inappropriate. Or, the club can impose conditions beforehand (don't demean the coach).
Super interesting: Cole suggests that cheating on tests, and passing along answer keys, is "conduct" rather than "speech." Schools can regulate it.
All in all, justices seemed a little confused about Cole's test -- but not hostile to it. They seemed much more alarmed by school district's "substantial disruption" standard. Court might rule for cheerleader narrowly.
(Arg wrapping up. School’s lawyer saying that w/out Tinker, schools will be fumbling to address off-campus speech. Not fair to families.)
Whew. I’ve never done that before. Thanks for following along!
