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05 July 2021

Taft Stettinius & Hollister

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In Mahanoy Area School District v. B.L.,decided on June 23, the U.S. Supreme Courtreaffirmed thatschools can punish students for speech that "materiallydisrupts" school operation and discipline, even if that speechoccurs outside of school. Schools can punish "off-campus"cyberbullying, academic dishonesty, and disruptions to virtuallearning environments the technology-enabled, off-campusanalogues to traditional school disciplinary issues. But outside ofthose core school-related areas, school administration should treadcarefully. Off campus, students enjoy robust First Amendmentfreedoms, as long as their speech does not threaten a materialdisruption to school order and discipline.

More than 50 years ago, in Tinker v. Des Moines IndependentCommunity School District, the court held that students enjoya First Amendment right to free speech. But, the court held, schoolofficials may regulate speech that "would materially andsubstantially disrupt the work and discipline of the school."Since then, the court has occasionally opined on what kinds ofspeech a school can regulate. But this year, the court explainedfor the first time where a school may regulate speech.

Of course, when the court decided Tinker in 1969,virtually all school instruction took place in physical buildings,and commercial internet access was still a quarter century away.So, it was generally understood that the Tinker ruleapplied principally to on-campus speech. But as it often does,technology forced the court to take another look this year inMahanoy.

Mahanoy started in 2017 when a high school freshman,"B.L.," tried out for the varsity cheerleading squad atMahanoy Area High School in Eastern Pennsylvania. She did not makethe team, but was instead assigned to the junior varsity squad forthe year. That weekend, an upset B.L. posted a Snapchat photo taken off campus at a local convenience storeof her and a friend flipping off the camera. She captioned thephoto with profanity we do not need to repeat in a law bulletin.Several Mahanoy students, including members of the cheerleadingsquad, saw the post and complained to school administration. Theschool suspended B.L. from cheerleading for the year.

In an 8-1 decision written by Justice Breyer, the court heldthat the school violated B.L.'s First Amendment rights. Thecourt first explained that the Tinker rule applies tooff-campus speech. The court recognized that "on campus"is not just a physical building anymore and threats toschool safety, operations, and discipline can come from anywhere.With virtual learning, "my camera isn't working" hasreplaced napping in the back of the class, and students can bedisruptive from the comfort of their own living rooms asmany of us experienced during the pandemic. With internet access,it is much easier to plagiarize a paper. Social media means thatstudents can bully each other from anywhere, at any time. All ofthese things, the court explained, are forms of speech and conductthat schools were free to regulate under Tinker when theytook place on school grounds. The school still has an interest inpolicing them.

But the court also explained that three features of theoff-campus setting weaken a school's interest in policing it and thus limit the school's authority to do so. First,a school does not stand in for parents ("in locoparentis," in legal jargon) when students are off-campus;instead, parents are primarily responsible for policing theirkids' off-campus speech. Second, from a student'sperspective, if the school can regulate both on-campus andoff-campus speech, then it has effective control over astudent's entire 24-hour day. Under such a rule, a school couldeven penalize a student for her religious and political activities something Tinker was never intended to allow. Andthird, schools are charged with teaching students how to be goodcitizens; that includes teaching the civic virtue of protecting thefreedom of even unpopular speech.

So how did those principles apply to B.L.'s Snapchat story?Unsurprisingly, the court held that B.L.'s parents, not theschool, were responsible for policing her weekend activities at aneighborhood convenience store. The court found that B.L.'sspeech did not cause any disruption to the work or discipline ofthe school, beyond a few minutes of students asking about the post.The court set a high evidentiary hurdle for schools: the school wasliable here because no disruption ever materialized, and the schoolcould not show that B.L.'s tirade posed a serious risk offuture harm to others. That speech might upset others is not enoughto show a substantial disruption though the court offeredno guidance on when protected "upsetting speech" turnsinto unprotected bullying. The court acknowledged thatprofanity-laced Snapchat photo does not appear to merit FirstAmendment protection, but "in what otherwise might seem atrifling and annoying instance of individual distasteful abuse of aprivilege, these fundamental societal values are trulyimplicated."

A final note on the practical outcome: in October of 2017 the beginning of B.L.'s sophomore year, a federaldistrict court issued a preliminary injunction that reinstated herto the cheerleading squad. The final judgment in 2019 included adeclaration that the school violated B.L.'s First Amendmentrights, an order that the school expunge the incident from herdisciplinary records, and an award of nominal ($1) damages andattorney fees. The U.S. Supreme Court affirmed that judgment. B.L.is now in college.

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Schools Can Regulate Off-Campus Speech Within Tight Limits - Consumer Protection - United States - Mondaq News Alerts

Last week, the U.S. Supreme Court issued its highly anticipated ruling in Mahanoy Area School District v. B. L., No. 20-255, (U.S. June 23, 2021), upholding students' free speech rights for the first time since 1969. In an 8-1 decision, the Court strongly reaffirmed the landmark case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and held the school could not punish a high school cheerleader's off-campus Snapchat message to friends.

Despite the vulgar nature of the message"Fuck school fuck softball fuck cheer fuck everything" with an image of the student and her friend with their middle fingers raisedthe Court found the teenager's critical opinion of school issues worthy of "robust First Amendment protections." Justice Breyer observed it "might be tempting to dismiss B. L.'s words as unworthy of robust First Amendment protections," but concluded "sometimes it is necessary to protect the superfluous in order to preserve the necessary." And he identified a key government interest the school administration apparently overlooked: to prepare students for citizenship "the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus." (emphasis added).

The opinion for the Court avoided creating a bright line rule concerning where the speech occurs. "Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus." Instead, the opinion identified "three features of off-campus speech that often, even if not always, distinguish schools' efforts to regulate that speech from their efforts to regulate on-campus speech."

First, the Court examined the right of the school in loco parentis, noting that "geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility." Second, the Court held that "courts must be more skeptical of a school's efforts to regulate off-campus speech," noting that "political or religious speech that occurs outside school or a school program or activity" undoubtedly comes with "a heavy burden to justify intervention." Third, the Court reminded educational institutions that "America's public schools are the nurseries of democracy," which "only works if we protect the 'marketplace of ideas'" and "that protection must include the protection of unpopular ideas, for popular ideas have less need for protection."

Justice Breyer's opinion departed from the Third Circuit's reasoning, which had relied extensively on where the Snapchat message was typed and sentin other words, the physical location of the student and/or the student's use of "school-owned, -operated, or -supervised channels."1The U.S. Supreme Court, however, made clear that such explicit holdings were unnecessarythe cheerleader's off-campus, critical speech had not substantially disrupted or targeted school functions, and therefore "d[id] not meet Tinker's demanding standard."

Justice Alito wrote separately (with Justice Gorsuch joining) to clarify the majority's holding. He noted the enormous disparity in treatment that would result if the government could only punish public school students' speech, concluding that attending public schools cannot be conditioned on relinquishing constitutional rights. He asserted that "[i]f today's decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory."

Justice Thomas issued a lone dissent, echoing themes he first set forth in his concurring opinion in Morse v. Frederick, 551 U.S. 393, 422-33 (2007)a case involving a student's "Bong Hits 4 Jesus" sign at a school-sponsored event. Based on historical analysis and drawing largely on 19th century state court decisions, Justice Thomas concluded that public school students lack First Amendment rights and suggested he would reverse both Tinker and W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (where the Court held that public school students could not be compelled to salute the American flag and recite the Pledge of Allegiance).

Justice Alito directly addressed Justice Thomas's dissent on originalist grounds, noting the dated state court decisions are "of negligible value for present purposes." The concurrence explored the doctrine of in loco parentis upon which the dissent focused, and found it failed to explain the delegation of parental authority that occurs in American schools today. For "whatever [the student's] parents thought about what she did," the concurrence noted, "it is not reasonable to infer that they gave the school the authority to regulate her choice of language when she was off school premises and not engaged in any school activity."

It remains to be seen how the principles articulated by the Court will apply to future controversies involving off-campus speech and "whether or how ordinary First Amendment standards must give way off campus to a school's special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up school community." However, "to justify the prohibition of a particular expression of opinion," the school would have to show that "its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

Davis Wright Tremaine LLP filed an amicus brief in the Mahanoy case on behalf of Mary Beth and Joe Tinker, key litigants in the U.S. Supreme Court's landmark 1969 student-speech ruling Tinker v. Des Moines Independent Community School District.

1 See 964 F.3d 170, 189 (3d Cir. 2020) (holding "that Tinker does not apply to off-campus speechthat is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school's imprimatur").

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F--- school, f--- softball, f--- cheer, f--- everything, Except First Amendment Protections for Student Speech - JD Supra

The American Civil Liberties Union challenged a new Tennessee law that requires businesses to post a sign alerting customers if they allow people to use restrooms that dont match their biological sex. The ACLU says the state is unconstitutionally compelling speech in violation of the First Amendment.

Republican Gov. Bill Lee signed HB 1182into law on May 17, and it is set to take effect on July 1. Unlike other restroom bills, Tennessees does not dictate who can use a facility or target transgender individuals. Under the law, public or private entities or businesses open to the public that dont restrict restroom access by biological sex must post a boldface notice: This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.

The Friday complaint slams the new law as anti-transgender in its use of the phrase biological sex and contends it is aimed at transgender individuals even if it doesnt mention them. It also argues the state is unconstitutionally forcing businesses to endorse an anti-transgender message.

Republican Rep. Tim Rudd, who sponsored the bill, said it is not discriminatory because it does not limit who can use a restroom, but protects the privacy of those who prefer not to share a facility with someone of the opposite biological sex. Whether youre a man or woman, dont you want to know who might be waiting on the other side of a bathroom door when you go in? Rudd said. Everyone has a reasonable expectation to the right of privacy and dignity when using the restroom.

But Regent Law School professor Brad Jacob said the case is not so simple: As unsympathetic as I am with the idea that you can just declare yourself to be the opposite sex and then that makes it reality, I think this is a classic First Amendment compelled speech case.

He noted the cases similarity with the Supreme Courts 2018 rulingin NIFLA v. Becerra. The justices struck down a law in California requiring crisis pregnancy centers to post a notice that the state provides free or low-cost services, including abortions, and provide a phone number. They found such a requirement unduly burdened the centers free speech.

States are flushwith legislation related to the transgender issue, including regulating access to single-gender facilities, defending female athletes from having to compete against men who identify as women, and protecting minors from gender transition treatments.

But the Supreme Court does not appear poised to enter the fray. The justices on Monday let stand an August 2020 appeals court rulingagainst a Virginia school boards policy limiting restroom use to members of the same biological sex. Gavin Grimm, a female student who identified as male, sued after the Gloucester County high school denied access to the boys restroom in 2017. Justices Samuel Alito and Clarence Thomas indicated they would have taken the casefour are required to put a case on the docket.

Conflict between LGBT activists and religious liberty advocates will likely continue, Jacob said, since neither side will go away. We have to find a way of letting each side live their own convictions without trying to beat down the other, he said. Unfortunately, thats not where we seem to be going at the present.

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Restroom wars and the First Amendment | WORLD - WORLD News Group

A new memorial that honors five slain Capital Gazette staff members was unveiled in a public ceremony in Annapolis on Monday, the third anniversary of a mass shooting in the papers newsroom.

The Guardians of the First Amendment memorial honors Wendi Winters, John McNamara, Gerald Fischman, Rebecca Smith and Rob Hiaasen. The memorial, designed by Moody Graham, features an engraving of the newspapers stark front page the day after the attack: 5 shot dead at The Capital. The victims are represented by five granite towers that stand in front of a brick wall engraved with the amendment that established the freedom of the press.

I want Wendy, Rob, Gerald, Rebecca and John to be remembered with words like guardians. It will give their names weight, the weight they deserve, Phil Davis, a survivor of the shooting, said at the ceremony in Newman Park, joined by victims family members and politicians.

But I also knew these five as people, he said.

Davis called Wendi Winters the center of every conversation who offered unique insight into Annapolis and depicted the city as it truly was. He remembered John McNamara as a reporter whose passion for local sports was infectious, who delighted in sharing basketball history. Gerald Fischman was a stoic yet thorough editor with a command on language; Rebecca Smith was a collaborative, engaged sales assistant who helped out with stories when she could. Davis described Rob Hiaasen as a passionate editor who inspired reporters to take creative risks and focus on the people behind the stories so we can tell stories that will stick with people long after they put the newspaper down.

These are people with families, interests and desires that were all unique and very much in line with furthering the communities that they serve, he said.

Davis noted also that time and corporate interests did not stand still after tragedy. Earlier this year, Tribune Publishing shareholders voted to sell the Capital, the Baltimore Sun and several other Sun-affiliated papers to the hedge fund Alden Global Capital, despite offers from Maryland hotel executive Stewart Bainum Jr.

Alden representatives have said the hedge fund seeks to carve a sustainable path for local news, but its better known for slashing newsrooms throughout the country by selling assets and laying off newsroom staffers. Former Capital journalists Rick Hutzell, Danielle Ohl and Chase Cook took a buyout from Alden this month.

I want a future where there's also a freedom for the people of the press, where humanity takes precedence, Davis, who now works at the Sun, said.

Anne Arundel County Executive Steuart Pittman joined Davis in sharing remembrances and said he sent Alden a letter about the value of journalism.

I hope that they will visit this community soon. I hope that their stockholders hear our story, and work with us to grow, rather than shrink, our newspaper. And if they dont, I hope that we can find a way to recreate what they take away from us, he said.

David Simon, creator of HBOs The Wire and a former Sun journalist who was friends with some of the victims, delivered an address titled The Death of Truth.

I come to you as an emissary from a time when good newspapers were not pitied or mourned by the governing powers but were considered with ruthful wariness and even feared at moments by those in authority, he said.

Jarrod Ramos, 41, pleaded guilty but not criminally responsible by reason of insanity to 23 counts tied to the killings in October 2019. A trial to determine his sanity is set to begin this week. If the gunman is found not criminally responsible, he will be committed to a maximum-security psychiatric hospital rather than a prison.

WAMUs Dominique Maria Bonessi contributed to this report.

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'Guardians of the First Amendment' Memorial Unveiled In Annapolis - WYPR

(The Center Square) The American Civil Liberties Union (ACLU) of Iowa calls Iowas new law that increases penalties for unlawful protest an intimidation tactic.

Gov. Kim Reynolds signed SF 342, known as the Back the Blue Act, into law on June 17. It makes rioting a felony offense, increases penalties on other destructive behaviors, establishes qualified immunity, and increases due process protections for law enforcement, the Governors officesaid.

A lot of our concern about this particular law comes into play is in the ways that we think that it will inhibit people from exercising their First Amendment rights through enhanced penalties through new offenses. And through this, this notion that police cant be held accountable if they abused their power, ACLU of Iowa Executive Director Mark Stringer told The Center Square.

Examples of the enhanced penalties include upping the penalty for unlawful assembly from a simple to an aggravated misdemeanor, he said. That takes it from punishable to up to 30 days in jail to punishable for up to two years.

The law also creates another way to commit this kind of offense. A protester who joins a lawful assembly but then remains after the person knows that it has become an unlawful assembly could face those charges, which Stringer said isnt on its face unconstitutional.

Another ACLU concern is the provision that grants civil liability immunity for drivers who exercise due care and injure a person participating in a protest even if its a lawful protest. That gives immunity if a driver hits a protestor, he said.

Why are we creating a law that basically gives special treatment to a driver who happens to be interacting with a protest as opposed to any other gathering? The whole thing is odd, frankly, Stringer said.

The ACLU of Iowa will wait and see how the law is enforced to determine its next steps, he said.

Our kind of approach is always you have to wait and see how this unfolds. We are not hopeful that it wont impact peoples protesting rights, Stringer said.

On its face, the plain text of the law doesnt criminalize lawful protest, he said.

But we also know just from last summer, that police sometimes respond to lawful protest by arresting protesters with little or no basis, Stringer said.

That happened with several Black Lives Matter protestors and some journalists. The criminal charges were later dropped by prosecutors, or their cases ended in acquittals because there was no evidence against them, he said.

The state has enhanced penalties for protestors and given police less accountability by codifying broad immunity from state law claims brought by people who are harmed by police action, he said.

It comes directly in response to thousands of protesters, most of whom were peaceful, law-abiding, Stringer said.

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ACLU of Iowa Says 'Back the Blue Act' Could Inhibit First Amendment Rights - The Iowa Torch