Courthouse Steps Oral Argument Teleforum: Mahanoy Area School District v. B.L.

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist Society's Teleforum conference call. This afternoon, April 28, we discuss the Courthouse Steps Oral Argument Mahanoy School District v. B.L. My name is Guy DeSanctis, and I am Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Michael Dimino, Professor of Law at Widener University where he teaches constitutional law, election law, and on the First Amendment, among other subjects. He is also a member of The Federalist Society's Free Speech and Election Law Practice Group Executive Committee. After Michael gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the call.

 

      With that, thank you for being with us today. Michael, the floor is yours.

 

Prof. Michael Dimino:  Thank you, Guy. Thank you for that introduction. Thanks to all of the rest of you who are on the call. It's a pleasure to participate in this Teleforum, like all the others. I am honored to be a part of The Federalist Society and to assist the organization.

 

      And this is a particularly fun case to talk about. When I teach First Amendment in law school, the students often really enjoy the opportunity to discuss the constitutional principles that are applicable to students' speech. And the Supreme Court has not heard too many cases on the subject. There have been four. This would be the fifth.

 

      And this case presents a new twist. The question of the case is to what extent can schools regulate off-campus speech that has an effect, perhaps a disruptive effect, in school. Can schools discipline students for off-campus speech? The Court has never addressed this question before. All of its other cases have dealt either with on-campus speech or with speech occurring in a school-supervised function. Perhaps you remember the "Bong Hits 4 Jesus" case, Morse v. Frederick, that involved an activity outside the school building but in a school-sanctioned field trip.

 

      This case, however, involves student speech that is entirely off school grounds, entirely outside school hours. The student made a social media post that is the subject of this discipline. The student in question, B.L., was a sophomore at the Mahanoy School District's high school. She was a cheerleader. She had tried out for the cheerleading squad as a freshman and made the J.V. team. She tried out again as a sophomore and made the J.V. team again, contrary to her desire to make the varsity team.

 

      She was frustrated about that. She was frustrated with what she perceived as more favorable treatment given to other students. She was frustrated with her softball team, which was not affiliated with this school but just a recreational softball team. She was frustrated with the school in general and with her coaches, etc. So she posted on Snapchat a profane rant that used the "f" word several times in a long string of "f*** cheer, f*** softball, f*** school, f*** everything."

 

      The Snapchat was seen by several of her classmates, some of whom brought it to the cheerleading coaches' attention. Those coaches addressed the matter with B.L. and, ultimately, she was suspended from the cheerleading squad for an entire year. They said she could try out again the next year, but she'd be off the cheerleading squad for that entire year because of what was perceived as her disrespectful and profane post.

 

      In the school district's view, the post demeaned the school and the coaches and undermined the position of the school, undermined the attitude that the public might have of the school, called that into some question. And so the cheerleading squad thought that some discipline was in order. That was the discipline they agreed on. The student and her parents appealed through the school's processes, but the suspension was affirmed by the principal and the superintendent, the Board of Education, and so on.

 

      So then there is a lawsuit. She sues in the Middle District of Pennsylvania alleging that the discipline for her off-campus speech violated the First Amendment. The District Court agreed. The Third Circuit also agreed, but the school district sought certiorari from the U.S. Supreme Court and cert was granted. And that's the case that was heard today.

 

      The dispute between the various contending parties, the school district on the one hand, B.L. on the other hand, and the Solicitor General also had a piece of the oral argument supporting the school district. The debate between the varying positions in the oral argument boiled down to an attempt to create an administrable rule. The justices expressed considerable dissatisfaction about the proposed rules from both sides and wondered whether all the proposals were so vague as to amount to a rule that would not be capable of clear administration. Neither side, however, wanted to create such a clear rule that it would interfere with some policy desires that would push in the other direction.

 

      So, for example, the school district did not want a rule that said -- did not argue for a rule that says, “We can discipline students as long as they are students in our school. We can discipline them for their speech whenever we think it's appropriate.” The school district didn't want, for example, to be able to impose a general good-conduct rule on students for all their speech, whether on campus or off, regardless of what topic it addressed.

 

      Instead, the school argued for this position. The school said, "We want to be able to discipline students' speech if it is directed to a school audience and on a school topic." And because this Snapchat post referred to the school and was visible by and, indeed, viewed by the other students on the cheerleading squad, that this, according to the school district, qualified as speech to a school audience on a school topic. And, having concluded that, the school district said, "We should be able to discipline the student for the speech so long as it causes or threatens to cause a substantial disruption," taking that language about a disruption in the school from the Supreme Court's major precedent in this field, Tinker v. Des Moines Area School District.

 

      In that case, the Supreme Court had upheld a student's right to protest the Vietnam War by wearing a black armband to class. And the Court said that there doesn't seem to be much of a disruption caused by the wearing of that black armband, and absent a substantial disruption or an interference with the rights of other students, there wasn't any justification for the school district to interfere with that student's right to express his views on the Vietnam War.

 

      According to the school district, it would be wrong to create a clear rule between on-campus and off-campus speech like the Third Circuit did in this case. The clear rule would say something like this, that the school district can regulate students' conduct, including students' speech while the student is at school. But when the student's not at school, then the school would have to treat that student the same as the rest of the government would have to treat the student. That is, the student would have a right to engage in free speech the same as every other citizen, except when the student is in school, and then the student would be subject to more limitations on his or her speech.

 

      The school district did not want that rule because the school district said the whole point of allowing schools to regulate students' speech is that the students' speech causes a disruption in the school. The reason that we don't allow someone to have a political protest in the middle of math class is because it interferes with the ability of the school to teach the math lesson. And the school says you can cause that kind of disruption even if you make the speech off campus or outside of school hours if it causes such an uproar in the school that it distracts the students from the lessons or makes it difficult or impossible for the teachers to carry out the educational mission of the school.

 

      So in the view of the school district, the key should be what is the effect on the school? Is the speech causing a material and substantial disruption with the school? Don't focus, says the school district, on when or where the speech was made. Focus on the effect on the school.

 

      B.L., by contrast, argued for what seemed like a very different rule, although the justices probed as to whether it was all that significant a difference in practice. The student's proposed rule was instead that the question should be whether there is a school-supervised activity. According to the student, the Tinker test, material and substantial disruption with the school environment, should apply for any school-supervised activity.

 

      So most of those would occur on school grounds. They could include classes. They could include homeroom. They could include lunch period. They could include an on-campus recess or athletic teams, field trips, those sorts of things. Anything that is school-supervised would be subject to Tinker's material and substantial disruption test.

 

      However, for other kinds of activities, speech that is not subject to school supervision when it was made, but that -- in regulating that kind of speech, the Court said that the school district should be in exactly the same position that the rest of government should be in when it's acting as a sovereign. And so if the rest of government, the legislature and the courts or some agency, could not discipline someone for certain insulting speech, then the school district should not be able to impose discipline for insulting speech simply because the student happens to be enrolled in a school when the speech occurs outside of any kind of school-sponsored activity.

 

      According to the student's argument, a contrary rule, a rule that would allow the school to impose discipline based on speech that occurs outside of a school-sponsored activity, that rule would allow the school to control a student's speech constantly. As David Cole, the counsel for the student, said that that kind of rule favored by the school district would force the kids to carry schools on their backs constantly, that the students, no matter where they were speaking, could always feel the need to conform to the school's desired code of speech, which Mr. Cole argued was dangerous to principles of free speech.

 

      As he argued, the Tinker rule that allows for school districts to impose some limitation on student speech where it would cause a material and substantial interference with the educational mission, Cole says that was designed to be and is supposed to be a small exception to a general principle. It allows the school districts to regulate speech in a small amount of situations where there is that material and substantial disruption in the school environment caused by things like a protest in the middle of math class.

 

      Cole says if you change that to a rule that allows the school district to regulate speech any time the speech occurs so long as there is a disruption in the school, then, he says, you're taking what was supposed to be a small exception and making it the rule. Then the schools will be able to regulate student speech all the time because in this internet age, the social media age, the way that students speak is through social media, and the effect of social media could easily produce some kind of disruption in the school environment. And so a rule that would allow the school to discipline students based on the possibility of a disruption in school would allow the schools to discipline students for pretty much all student speech that the school district believes threatens that standard.

 

      Further, a major issue that was discussed by the parties and the justices seems to have been the thing that Chief Justice Roberts focused on more than any other topic was the concern about the effect on students' speech on, you might call, important topics, First Amendment preferred topics, things like politics, morality, religion, that kind of thing. In the view of the student, it was necessary to create the kind of test that the student proposed because if a material and substantial disruption would be enough to allow a school to punish a student's speech, well, then the student could be punished based on that student's political statements off campus, outside of school hours, if enough people in the school disagreed.

 

      If enough people in the school disagreed, then you'd produce a disruption in the school, and someone could be disciplined by saying, "Black Lives Matter," or "Blue Lives Matter," or "I'm Pro-Choice," or "I'm Anti-Abortion," or whatever it is. And the justices seemed pretty concerned that any kind of standard must protect that kind of political speech.

 

      Now, not even the school district said that it wanted the authority to do quite that. Lisa Blatt, for the school district, argued that the last thing that the school district wanted to create was a rule of a heckler's veto, and so even the school district said that disputes on politics should not be cause for school discipline. In particular, she argued that the schools should be able to discipline students for speech that causes a material and substantial disruption. But, she said, the disruption must be more than just other students taking offense. There must be some reason to fear a disruption that is more than that.

 

      So I think the important thing for you all to understand from this oral argument is that the positions of the parties are probably not as far apart as you might have assumed them to be when you heard what the case is about. The school district is not arguing for full authority to discipline students for any speech at any time. The student is not arguing to be able to say whatever she wants as long as she is outside the school walls. The proposed tests on both sides are a little more nuanced than that.

 

      The problem that the justices focused on for most of the oral argument was the difficulty in creating a test that would appropriately distinguish between the kinds of speech off campus that would be subject properly to discipline and the ones that would not. And the justices, as they often do, proposed a series of hypotheticals to the contending lawyers, and they asked, for example, about bullying.

 

      Suppose that a bunch of students insult another student not in a way that would be so severe as to amount to a threat, nothing that would be obscene, nothing that would amount to a category of unprotected speech. But if it occurs off school grounds, would the school be powerless to do anything about it? And the school district's answer, of course, to that is no, that they should be able to deal with that if the speech was targeted at a school audience there, another student, and caused a material and substantial disruption in the school.

 

      The student's argument was that bullying could be the subject of discipline by the school district, but only on fairly strict conditions. If the particular speech was constitutionally unprotected, if it amounted to a true threat, for example, then it could be disciplined, of course. In addition, Mr. Cole suggested that it would be possible to create a bullying policy that if defined clearly enough and if limited to severe and pervasive harassment, a kind of standard that applies to sexual harassment in the workplace, that if the anti-bullying rule were defined clearly enough, then it would be constitutional, he said, to apply an anti-bullying rule to allow schools to enforce some discipline to students for off-campus speech that occurred without any kind of school-supervised activity.

 

      We saw a considerable divergence of opinion among the justices based on their preference for rules over standards, case-by-case adjudication versus clear rules. Justice Breyer repeatedly suggested that coming up with a clear rule in this case might be difficult, might be inadvisable, and so perhaps a very narrow rule might be better. And there are a couple of possible narrow rules. The Court suggested that maybe the Court could rule in favor of the school district by saying that just because the speech occurs off campus doesn't necessarily mean that the schools can't regulate it and then the Court could remand for further proceedings on that understanding of Tinker.

 

      On the other hand, many of the justices seemed to agree that this discipline in this case was quite an overreaction by the school, that the Snapchat post that this student created was juvenile, it was profane, it was somewhat insulting, but it wasn't a big enough deal to cause a reasonable person to think that a one-year suspension would be appropriate. And it didn't do anything to cause all that much of a disruption in school except that the rest of the cheerleading squad said, "Oh, did you see what B.L. posted?" And the justices seemed to suggest that this just isn't -- the school district did not have a justification for imposing discipline on her.

 

      So there seems to be some appetite on the Court for not making this case quite the big case that it could be and that some of us were hoping that it could be. The Court could decide the case narrowly in favor of the school district or narrowly in favor of the student. And if it decided it narrowly in favor of the student, the Court would just say that even if the Tinker standard applies, there wasn't a reasonable belief that this post would lead to a material and substantial interference with the educational processes of the school, and so the student should win the lawsuit without establishing a clear standard that would govern future cases.

 

      Some other justices, though, perhaps most notably Justice Alito, who mentioned this a couple of times, said that if we are going to come up with a standard, the standard should be clear, particularly when we're creating a standard about the regulation of speech. There is a tremendous value in creating a standard that is administrable.

 

      And so he probed some of the lawyers a couple of different times on the need to create a clear standard and talked about whether it would be possible to create a standard that would protect student speech, particularly the ability of students to discuss politics, religion, and the like without worrying about conforming to a school's speech code. And those of you who are familiar enough with this area to have read his separate opinion in Morse v. Frederick would not be surprised by the attitude that he took there, the need for clear rules and the need to protect students' ability to discuss political and other meaningful topics.

 

      Kavanaugh was kind of on the other end of that focus. He kept coming back to the particulars of this case and suggested that B.L. was just blowing off steam, that she was acting the same way that thousands of others acted upon getting disappointment about not making the team that you were trying out for. And he suggested that even if the First Amendment might not be directly pertinent to the question of the legality of this punishment, that there was still something deeply troubling to him about the draconian one-year suspension for B.L.'s post that was, perhaps intemperate, perhaps ill-advised, but in his view, not all that big a deal and not all that unusual.

 

      All of the justices, though, did seem to understand that the internet age, the social media age, did require a re-thinking of what the proper limits on school speech should be. They were just not clear on what direction that pushes. So on the side of the student, the argument is that because so much student speech, so much young people speech occurs on social media, that we should be careful to create a rule that doesn't allow schools to censor what amounts to just about all of students' public speech.

 

      On the other hand, some of the more liberal justices, Sotomayor and Kagan, in particular, talked about this theme, and certainly the lawyer for the school district did, that the social media age means that students' speech off campus is more likely to have an effect on the school than in the past, that the pure geographic line, schools can regulate speech on school grounds, but they can't off school grounds, doesn't make a lot of sense from the point of view that schools should be able to regulate speech that interferes with the school's educational process. As those justices and Ms. Blatt pointed out, that just doesn't match up with what the effect is going to be on the school, that is off-campus speech can have just as much of a distracting effect on schools as speech that occurs on the school ground.

 

      The Court heard argument today in late April. A decision is expected by late June, so a couple of months from now. And I think if I had to give a prediction, I think it's reasonably likely that the -- at least more -- if I had to give a prediction, I would say more than a 50 percent chance that the student wins at least some. As to what the standard will be, I don't know, but it seems like very few of the justices think that discipline, at least this one-year discipline, is appropriate for B.L.

 

      If the school district does win, therefore, it's not likely to be an outright reversal of the Third Circuit. It seems like the best that the best possibility the school district has is a reversal and a remand with instructions to allow the school district to demonstrate that her, B.L.'s post did have or was threatening to have a substantial disruptive effect on the school, and only then if the school made out that standard would it be able to impose the discipline.

 

      Ultimately, I'm not sure that the school district has much chance to impose the discipline on her, but I'm not sure what standard is going to result from the case. This could be anywhere from a blockbuster that could be the second most important case on school speech next to Tinker, or it could be a case that is self-consciously designed not to create a rule and that just leaves further development to another day.

 

      With that I will stop. I'll be happy to take our questions. Again, thanks for your attention, and I look forward to hearing more from you.

 

Guy DeSanctis:  Thank you, Michael. We'll now go to audience questions. All right, we have our first question.

 

Bob Fitzpatrick:  Hi. Bob Fitzpatrick here in D.C. Question. During the briefing of your oral argument, did the issue of mootness come up? I assume she has graduated from high school.

 

Prof. Michael Dimino:  The subject of mootness did not come up. She was awarded nominal damages, and under the Court's decision earlier this term, it seems that a case for nominal damages would be able to proceed. But even if nominal damages is all that the parties are disagreeing about, that still is a live case. In addition to that, she asked for the discipline record in her file to be removed. And so that injunctive relief also remains in the case. But the brief answer to your question is no, mootness was not discussed at all.

 

Bob Fitzpatrick:  Thanks.

 

Guy DeSantis:  Thank you for that question. Our next caller.

 

Will Trachman:  Hi. This is Will Trachman out in Colorado. It does seem like the real issue here is the school's over-deploying the excuse that something is disruptive. And the justices certainly mentioned a few of those cases. I can think of one that I didn't hear mentioned involving the Ninth Circuit saying that the American flag was disruptive—maybe it was on Cinco de Mayo—the American flag was hostile to certain Mexican American students.

 

      I can't think of a real reason why Tinker wouldn't apply if something were actually disruptive on campus, even if the speech occurred off campus. But it seemed like that was the underlying theme that aren't we worried about what schools say is disruptive or not? So how much of that do you think is affecting the justices' deliberations here?

 

Prof. Michael Dimino:  I think quite a bit because—thank you very much for the question—the big problem with all free speech cases is a suspicion of the government, that in all kinds of cases of limitations on speech, the government is arguing, "Well, of course we don't want to suppress particular views. We have these other great interests that we need to pursue, and the only way that we can pursue these important interests is by limiting speech that interferes with them."

 

      There's a lot of distrust, though, when you give the government that kind of power that it will take that and say, "Oh, well we're worried about a disruption caused by politically incorrect speech," or "We're worried about a disruption caused by any kind of speech that we disagree with." That was part of the court's concern in Tinker where the school district and Justice Black in dissent said, "Well, if you start arguing about the Vietnam War, then there could be a disruption, and maybe some students support the war effort, and some don't. And maybe some have siblings that are fighting in the war, and if you allow war protests, then you're going to get a problem."

 

      And the same kind of thing is true here. Some of the justices are suspicious, like you said, that a school district will go too far and say the American flag is disruptive because some people may object it, or some people might disagree with what they take to be the political statement that underlies it. Or a display of the Confederate flag might do the same, or a Black Lives Matter t-shirt, or a Make America Great Again hat, or a whatever. And the justices, again, particularly the conservative justices, were very suspicious of school districts enforcing speech codes in political situations such that they would penalize or forbid political speech when it might be unpopular.

 

      On the other hand, what's driving the more liberal justices is a concern over the harmful effects that can be caused by speech, including student-on-student speech. And the concern there is that adults are aware that part of the consequence of living in a society is that you have to deal with some speech that you don't like. You have to deal with insults that other people are going to level at you. And just having an attitude of "sticks and stones may break my bones, but names will never hurt me" is part of what goes on with every-day adult life.

 

      But children are less able to deal with that kind of consequence. And so bullying of young people is potentially a much more serious problem that would have effects in the schools. And people like Justice Kagan and Justice Sotomayor brought the discussion to that topic and said, "Shouldn't schools be able to impose discipline on speech that we wouldn't allow if the speaker were an adult because the harm caused by student-on-student harassment, for example, can be much more damaging to the educational process than similar assaults can be in the adult work environments.”

 

Guy DeSanctis:  Thank you for that question. We'll go to our next caller now.

 

Roger Candelaria:  This is Roger Candelaria. Thank you for an excellent presentation laying out what the arguments were. My question is about the context. We don't have a free market really in education in most of this country. And was that ever a factor in the case that the student really has no—I don't know if she does or not—realistic option to go elsewhere for her K-12 education?

 

Prof. Michael Dimino:  Hello, Roger. Thank you for that question. The topic was not addressed specifically in terms of options for private schools, but it did come up, the topic did come up in a slightly different form. There was a lot of discussion about whether it would be possible for a school to impose greater speech restrictions on people who participated in extra-curricular activities as opposed to the kinds of speech restrictions that a school district could impose on regular students, non-extra-curricular students, just regular curricular students.

 

      And the justices explored this possibility at some length, and even Mr. Cole, the lawyer for the student, said that there could, in fact, be more regulation of students' speech when those students were participating in extra-curricular activities because the students would have some measure of choice not to participate. So the suggestion was, and Mr. Cole tried repeatedly to stress the point that this issue was not present in the case and was not the decision of the Third Circuit on this point was not appealed so the justices should not reach it, but the justices seemed interested in it anyway.

 

      And Cole said that if a school decided to create a well enough defined conduct code and students agreed to the terms of that code as a condition of participating in the extra-curricular activity, then that kind of code could be enforceable, that the students' speech could be limited more for extra-curricular activities because there was an option not to participate than if the school tried to impose such a code on everyone who was enrolled at the school.

 

      And I think that the reason for that discussion was just like you were saying, that if there isn't a free market, if there isn't an opportunity to go to a school that protects the kind of speech you want to engage in, and if the state law requires you to go to school, then you don't have much of a choice and your free speech is being limited. So that's, I think, the context in which that discussion took place in the oral argument this morning.

 

Roger Candelaria:  Thank you.

 

Prof. Michael Dimino:  You're welcome.

 

Guy DeSanctis:  Thank you for that question. We'll now go to our next caller.

 

Caller 4:  Yes. Good afternoon and thanks. I joined a little late so if you covered this previously, I apologize. I'm just curious, was there any attention paid to the question of obscenity? I believe that under some definitions that this speech might have qualified in that context and, of course, definitions of obscenity change. I think there are some words today that might not be considered obscene, and there are some new words that probably would be, you know, racial epithets might be deemed less respected as opposed to days past. So, just curious if that was either argued or discussed among the justices.

 

Prof. Michael Dimino:  It was not in those terms. There was no discussion of obscenity, as such, because as a First Amendment matter, the definition of obscenity as constitutionally unprotected expression would not have included profanity or what we call in every-day parlance, obscenities. So the "f" word that B.L. used, we might refer to as an obscenity but is not, constitutionally speaking, obscene.

 

      The court did, however, one justice raised a question—I think it was Kavanaugh—about the use of a racial epithet. That if, instead of saying, "f*** cheer" and "I'm not terribly thrilled with anything else in life right now," if she had said that the teacher is a (fill in the racial epithet), would that have allowed discipline? Or would the school be allowed to discipline for that? And Cole's answer was yes, if there was a voluntarily entered into code of conduct that was broken by the student using that language.

 

      But the use of the racial epithet, just like the use of the "f" word in the actual facts of this case is not constitutionally unprotected. And so if an adult used any of that language, it would not be -- the government could not arrest and jail somebody for that kind of conduct. And the question is whether those standards should be adjusted for the school context or the youth context.

 

      Even the student suggested that those standards could be adjusted somewhat, that what would be protected speech for youth might not be quite the same as protected speech for adults. The court has suggested that in obscenity cases, like you pointed to before, what is obscene for material that is pandering to children is not quite the same standard as material that is obscene for adults. But it's not so different that we could say that swearing would qualify.

 

Guy DeSanctis:  Thank you for that question. We'll move on to our next caller now.

 

Caller 5:  Michael, really enjoyed it and, one reason being that in the 1930s and '40s, my dad grew up in Mahanoy City. But anyway, I was wondering, you had mentioned a couple times that the justices were -- kind of seemed perturbed that she had been prohibited for a year from engaging in sports activity. And I'm wondering if it had been a shorter "sentence", quote, unquote, if she had just been banned for the football season but was allowed to cheer during the basketball season, if that would factor into it.

 

      And then kind of an ancillary question is, was it discussed that when they're out there cheering and then the football team players and the basketball team players are out there playing, they're in kind of a representational capacity of the school itself? Thanks.

 

Prof. Michael Dimino:  Thank you. With regard to the last question about the representational capacity, that was somewhat discussed. Again, it was kind of addressed indirectly, that the school district thought that if you are a member of the cheer team, then you represent the school even when you're not cheering. So they could discipline her for this statement that was made on the weekend, not on school grounds, etc.

 

      It seemed to be agreed to by everybody, including the student, that if the speech in question had occurred while she was cheering, then she would have had -- there would have been that representational capacity to allow the school district to discipline her. So that wouldn't have been a question. The only reason the question arises here is because the speech occurred outside of a school sponsored event. And then, quickly, can you remind me your first point?

 

Caller 5:  Yeah. The first point was the length of her prohibition. I think you said it was for an entire year.

 

Prof. Michael Dimino:  Yeah. As I said, Kavanaugh seemed to be focused on that, whether it would have made a difference for First Amendment purposes had they imposed an amount of less discipline. Probably not as a formal matter, but one thinks that maybe this would have been a way of avoiding litigation, that you could have just said informally to the student, "This is not the way that adults operate. Why don't you think more carefully about it next time?"

 

      So it's not my place -- it wasn't Justice Kavanaugh's place to say, "Here is how you should run your school district." And as a First Amendment matter, it probably doesn't matter how severe the punishment is. The argument that she's offering is that she had a constitutional right to say it without any discipline at all. But discretion is sometimes the better part of valor.

 

Caller 5:  Thank you, Michael.

 

Prof. Michael Dimino:  Thank you.

 

Guy DeSanctis:  Thank you for that question. Our next caller.

 

Caller 6:  Hi. My question is: is there an issue here as to whether or not this is protected speech in the first place in view of the fact that all she was trying to communicate was her own personal unhappiness?

 

Prof. Michael Dimino:  Thank you. That seems to have been assumed. And First Amendment doctrine does protect frivolous discourse. So even though the Court says often that political speech occupies the highest rung on the ladder of First Amendment protection, and it uses other similar metaphors, that the Court has protected people's ability to blow off steam about truly personal things. And so her general frustration may not have been on the most significant of topics, may not have been all that articulate, but it is constitutionally protected, and there wasn't any suggestion by anybody in today's oral argument that it wasn't.

 

      And I say, the best case, I think, for that is Morse v. Frederick, the "Bong Hits 4 Jesus" case, that if there was ever going to be a case where there was going to be the argument put forward that this is just a bunch of nonsense, why are we giving constitutional protection to that, it would have been in that case. And the Court said in that case that the speech, even if we can't really figure out what it means and even if the student who made the speech said, "I was just trying to get on TV," that still it was constitutionally protected speech. So I don't think there's much of a question of that here.

 

Caller 6:  Thank you.

 

Guy DeSanctis:  Thank you for that question. Now to our next caller.

 

Caller 7:  Yes, and thank you, Professor, for cutting through the haze of what I found to be a very chaotic and confusing argument. I just want to get your reaction to a couple of my impressions from listening to it. First of all, it certainly seemed to me that there was wide sympathy for the student, and the Court is likely to side with a student, maybe even 9-0, but very fractured and divergent opinions with a narrow ruling.

 

      And secondly, it sounded to me like even if the Court were to adopt the position of the school district, that the school district has made some very substantial concessions such as on religious and political speech that could ultimately lead to greater student freedom, even with a loss for this particular student. So just curious about your reactions to those impressions.

 

Prof. Michael Dimino:  Thank you. As to whether the student might win 9-0, it's certainly possible, and I agree with you that there was significant amount of sympathy for the student on the facts of this case. Whether they're going to reach a 9-0 decision in her favor here, though, is complicated by the posture of the case. The Third Circuit ruled that the Tinker standard that allows the government to regulate speech, students' speech, just doesn't apply to off-campus speech. And so the court ruled in her favor by saying that the school did not have any authority at all to regulate the speech that she made off-campus.

 

      If the Court disagrees with that and says that there is some authority for the school district to regulate her speech, I'm not sure how a justice who thinks that can, nonetheless, affirm the judgment below. So if the Court were to reach a 9-0 decision in her favor, it might be very likely to be a rather broad ruling. If the Court wants to narrow it, then it might be more ambiguous as to whether she wins. It might be less certain that she wins at all, let alone 9-0. And then what was your second point again?

 

Caller 7:  It was, I wanted to get your reaction as to whether it seems like even a ruling in adoption of the school district's position could actually lead to greater student rights than we currently have in the status quo because of these concessions that their counsel was making about religious and political speech.

 

Prof. Michael Dimino:  Thank you. The counsel did, of course, say that we agree that religious and political speech is worthy of protection and, even beyond that, that the other students' disagreement with the hostile environment that might be caused if other students disagree with a student's political speech, that that would not be enough to justify punishment. So to that amount, if the Court is clear in accepting that, then it could tighten up the Tinker standard, at least as some courts have been employing it in the past. And I do think that that would be an improvement.

 

      So as one of the other callers suggested, if some courts were willing to allow school districts to discipline students just on the basis that they made political statements that were controversial or wore an American flag or something like that, and people disagreed with those political positions, that the student speaker could be suppressed, it's refreshing to see that even the school district disclaims that kind of interpretation.

 

      On the other hand, the other counsel and some of the justices questioned whether those concessions were really all that they were meant to be, or all that they could have been since the school district said in the end, "Yes, we can discipline students for religious and political speech if we have a clear enough reason to think that there will be a substantial disruption in school."

 

      And so even though there appeared to be that concession from the school district, then when it came down to it, when they were pushed back harder, Ms. Blatt said ultimately the question is one of substantial disruption. And if political speech does trigger a substantial disruption, then the student can be disciplined for the political speech. So, hard to tell, but it is refreshing to see that the school district does recognize that potential limit on its discipline power.

 

Caller 7:  Thank you.

 

Guy DeSanctis:  Thank you for that question. That appears to be our final question. Do you have any final comments you'd like to make before we wrap up?

 

Prof. Michael Dimino:  Only to thank you and The Federalist Society and the callers and the people in the audience who didn't ask a question. It was a pleasure to be a part of this Teleforum this afternoon.

 

Guy DeSanctis:  Thank you. On behalf of The Federalist Society, I want to thank our expert, Michael Dimino, for the benefit of his valuable time and expertise today. And I want to thank our audience for calling in and participating. We welcome listener feedback by e-mail at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.