Supreme Confusion Over Free Speech

The Supreme Court just undermined the authority of K-12 public schools to set reasonable rules for children about their speech outside the classroom or on campus but involving school matters with established rules. The Court also took what should have been a matter between the child and the child’s parents and transferred it to our courts, which further weakens parental and school authority.

In its recent decision, Mahanoy Area School District v. B.L., the Supreme Court recently ruled on a school’s ability to discipline a student for express and symbolic speech made off-campus (in this case, via a social media app called Snapchat). The student did not make the varsity cheerleading squad at her school and vented her disappointment on social media by making obscene gestures and throwing an F-bomb at the school, at the squad, at softball, and at life in general.

Snapchat is supposed to assure that, within a short time, the post will disappear so no lasting harm should come of it. Unfortunately, the post got back to those at the school responsible for the cheerleading squad. The school suspended the student from the junior varsity squad for a year because those in charge thought that her rant was not conducive to team cohesion and other known team rules.

The American Civil Liberties Union filed the suit in conjunction with the parents who are the legal guardians of the child in question. Both the district and the appellate court sided with this student, holding that the school district violated her rights under the First Amendment to the United States Constitution.

The Supreme Court, in an 8-1 decision, affirmed the lower court rulings. Article after online article has applauded the Court’s decision. However, the ruling is ludicrous on its face and, unfortunately, distorts what constitutes Free Speech within the context of the First Amendment. This type of case also brushes up against the relationship between parents and their children. Finally, it addresses the extent to which a governmental entity (the school) can impose its will on a child outside of the school when is no official school function but there are published rules.

Obviously, we are dealing here with a child. Children are not completely developed mentally or emotionally and are therefore accorded special treatment relative to constitutional liberties. In 1969, in Tinker v. Des Moines Independent School District, the Supreme Court held for the first time that students possess some limited First Amendment freedoms of political expression.

In Tinker, the political speech was symbolic, for the students wore armbands to oppose the Vietnam War. The school had sent the students home, telling them not to come back unless the armbands were gone. The Court ruled that neither students nor teachers shed their First Amendment rights to free political speech at the schoolhouse door.

However, the Court also upheld the school’s right to regulate political speech if the speech would materially and substantially disrupt the school’s work. Tinker, though, concluded that the armbands were not disruptive enough to uphold the school’s decision. In a long dissent to the Tinker decision, Justice Black states:

I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent.

And so, the lines were drawn in 1969. Who has authority over these children? How far does the US Constitution go in protecting their rights against school authority? Have Supreme Court decisions like Tinker and those that followed eroded school and parental authority? Was Justice Black right to believe the Supreme Court was wrongly interfering in public schools’ affairs regarding good order and discipline?

Let’s review. The speech the First Amendment protects, whether express or symbolic, must be speech about public policy, including social issues. For instance, where publicly funded universities ban students, professors, or guest speakers political speech because they do not like the speakers’ political point of view, they are engaged in a classic First Amendment violation of the right to express opposing views on public policy. The ACLU should be filing cases continuously regarding this “chilling” of political speech where it is most appropriate that the speech be heard – college and university campuses.

In the recent case, though, the 14-year-old’s speech had nothing to do with public policy or an important minority political view that would need protecting. The child’s speech was vulgar, her gestures obscene, as she was having a small tantrum about not being selected for the cheerleading squad. A teenage tantrum worthy of our Courts?

The teenager’s speech does not even meet the Miller Test, in which the Supreme Court said that speech that lacks serious literary, artistic, political, or scientific value is not constitutionally protected. F*** the school, F*** everything is not exactly literary, artistic, political, or scientific. Our Constitution does not protect obscenity. And yet, Justice Breyer wrote in the current Opinion, “America’s public schools are the nurseries of democracy.” A teenager’s foul mouth and gestures a nursery of democracy?

This is a matter for the child’s parents. In addition to those responsible for the school’s cheerleading squad, which wishes to maintain some kind of quality control for the team, her parents have a duty regarding how they wish to bring up their daughter and the level of her manners and decorum. The Court should have ruled that both the District Court and the Court of Appeals had wrongly applied the First Amendment to these facts and dismissed the case out of hand.

Moreover, even if speech deserves First Amendment protection, it is subject to time, place, and manner restrictions. That is why Olympic star Gwen Berry’s symbolic political speech regarding the Olympic podium is not a constitutionally protected right. Miss Berry’s speech is not at the right time, it is not at the right place, and it is not in the right manner when representing the United States in international competition under international rules. As Justice Black said in 1969, “I have never believed that any person has a right to gives speeches or engage in demonstrations where he pleases and when he pleases.”

Where children are concerned, parents and schools should be given the benefit of the doubt, and the courts of this nation should respect and protect their authority. Parents, and those they ask to teach their children, must teach all students that a “right” comes with a “duty.”

It is learning that duty, and why that duty is important, that is, in part, why we have schools at all. It is also important to teach that we have a body of law, Unwritten Law, that calls us to courtesy, kindliness, and sportsmanship. The District Court, the Third Circuit Court of Appeals, and the US Supreme Court could have helped this teenager, her family, and all Americans regarding these fine distinctions. They chose not to.

M. E. Boyd’s APPLES OF GOLD – Voices From the Past that Speak to Us Now is available at using both title and subtitle. Please visit, also, at

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