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Tuesday, June 30, 2020

Third Circuit: Tinker does not apply off-campus

The Third Circuit held Tuesday that Mahanoy (PA) Area H.S.* violated the First Amendment by suspending a student (identified as B.L.) from the J.V. cheerleading squad for a snap showing the girl and her friends flipping the bird above the caption "Fuck Cheer." This is a great First Amendment decision.

[*] My wife's grandmother grew up in Mahanoy, which is why I bother to mention it.

The majority hit several important things.

    • The speech was off-campus. The student created the snap off-campus, on a weekend, on a non-school platform, and the fact that the comments were about the school or school personnel did not change its nature.

    • The First Amendment does not apply differently to extra-curricular activities or to students who participate in extra-curricular activities (unlike the Fourth Amendment or Due Process). Suspension from an extra-curricular activity (the punishment the school imposed) is not a lesser punishment subject to less-rigorous First Amendment scrutiny. Student-athletes are not subject to punishment for off-campus vulgarity to a greater extent than non-athletes would be.

    • Tinker does not apply to off-campus speech. This is huge, as this is the first court of appeals squarely to hold. Tinker is a "narrow accommodation" of the unique context of school, but makes little sense outside that context. School officials can control the spillover effects that make their way into school. But that has been true of off-campus real-world speech, so should be true of on-campus online speech. And while this leaves schools unable to regulate some crude, vulgar, or offensive speech, that is the point of the First Amendment, as Tinker recognized.

    • Outside of school and online, students have virtually full First Amendment rights, including to use profanity, which cannot be dismissed as "low value" or as expressing no message. "Fuck cheer," uttered by a frustrated high-school sophomore, has a meaning.

    • The student did not waive her First Amendment claims by agreeing to be subject to certain codes of student-athlete conduct.

The majority expressly does not resolve off-campus speech threatening violence or harassing particular students or teachers. Some such speech may be unprotected and subject to sanction and the school may have a sufficiently weighty interest in regulating that speech. The question of Tinker's applicability caused Judge Ambro to concur in the judgment. insisting there was no need to address the issue because the speech was obviously protected even under Tinker. Ambro is concerned about a broader swath of off-campus speech, such as  racially tinged speech or snaps reenacting and mocking victims of police violence.

The case does suggest that "Tinker" as a standard is different from the public school's regulatory authority. That is, the inapplicability of Tinker to off-campus speech does not divest a school of all authority to regulate that speech, leaving any sanction to government at large. The suggestion is that a public school has authority to sanction students for off-campus expression, but it must satisfy a different, more rigorous standard (strict scrutiny or a showing that the speech falls into an unprotected category). So perhaps a school could sanction a student for out-of-school true threats, rather than leaving it to the police and the courts. Perhaps a school could punish a student for out-of-school (constitutionally protected) racist speech, claiming a compelling interest in teaching racial justice or maintaining racial peace within the schoolhouse gates that society at large cannot claim. I have presumed that schools should have no power to regulate speech off-campus, that a student becomes an ordinary person outside of school. While affirming broad student rights, this opinion suggests otherwise.

And if that is true, what does it mean for universities, who generally are not governed by Tinker? Can a university claim a compelling interest in campus racial peace that might give it more power than society at large to sanction racist-but-protected speech?

Finally, an empirical question that I have not researched but that I would be curious if anyone knows the answer. The Third Circuit in the past half-decade has broadly protected student speech in several significant case, a seeming departure from the late-'90s/early-oo's, when schools routinely won cases involving online speech and t-shirts. Is the Third Circuit an outlier or have other courts come around?

Posted by Howard Wasserman on June 30, 2020 at 01:31 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

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