On June 23, 2021, the Supreme Court decided Mahanoy Area School District v. B.L., a high-school student, was disciplined for posting on Snapchat a vulgar message that was critical of the school's cheerleading team. By an 8-1 vote, the Court held that the discipline was unconstitutional. The Court concluded that a school has less authority to regulate students' off-campus speech than to regulate speech that occurs on-campus. The Court noted three reasons for its conclusion. First, where a student speaks off campus, it is generally the responsibility of parents, not school officials, to supervise students' conduct. Second, courts should be skeptical of off-campus regulation of speech, because allowing schools to regulate both on- and off-campus speech would subject all of a student's speech to potential school discipline. Third, since schools are the “nurseries of democracy,” they have an interest in protecting the freedom of speech and teaching respect for people's right to express messages over which there is disagreement. Applying those principles, the Court determined that the school could not discipline B.L. for her off-campus speech, which denigrated the school and its cheerleading team, but which did not substantially disrupt the operation of the school.
- Michael R. Dimino, Professor of Law, Widener University Commonwealth Law School
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Evelyn Hildebrand: Welcome to The Federalist Society's virtual event. This afternoon, June 24th, we discuss the Supreme Court's decision in Mahanoy Area School District v. B.L. My name is Evelyn Hildebrand, and I am an Associate 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, Professor Michael Dimino. Professor Dimino is a Professor of Law at Widener University Commonwealth Law School where he teaches courses related to constitutional law, election law, federal courts, statutory interpretation, and criminal law.
Professor Dimino is also a member of The Federalist Society's Free Speech and Election Law Practice Group, Executive Committee.
After our speaker 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 that portion of the event. If you would like to ask a question, you can either enter it into the chat or the Q&A feature at the bottom of your screen. Additionally, if you're interested in speaking your question as opposed to typing it out, you can press the raise hand button and we can hand the floor over to you to ask your question.
With that, thank you for being with us today. Professor Dimino, the floor is yours.
Prof. Michael Dimino: Thanks, Evelyn. And thanks to The Federalist Society for hosting this. It's been my pleasure to be a member of the society for some years now and it's always a pleasure to be able to discuss new Supreme Court cases with interested members of the society like you all. Thank you for attending.
Let me add a little bit to the introduction that Evelyn just gave. If you are interested in asking a question about the decision, don't feel that you have to wait until I'm done with the introductory remarks. You're not interrupting at all by throwing something into the chat or raising your hand. I'm comfortable with that from my teaching now that I've done that for more than a year on Zoom anyway. So, please, if there’s an issue that you want to discuss, go right away and ask that in the chat. Or if you think that some part of my discussion is unclear or needs further detail, please jump right in and ask your question through the chat.
Most of you are already probably familiar with the facts of Mahanoy City v. B.L. and so I'm going to summarize them quite briefly in the interest of getting to the meat of the Supreme Court's decision.
B.L. was a high school student at a public school. She tried out for the cheerleading squad. She did not make the varsity squad as she wanted. She was offered a spot on the junior varsity team, and this displeased her, particularly as some younger students did get a spot on the varsity team. And she took out her frustrations by posting, to Snapchat, a vulgar post. She had a photo taken of herself with her middle fingers raised and a caption that read, "F school, F cheer, F everything." The school eventually got a hold of this post. Some of her Snapchat friends who received the post brought it to the cheerleading coach's attention. Ultimately, it got to other school officials' attention.
And the coaches of the cheer team, with the backing of the school, decided to suspend her from cheerleading for a year. She apologized. She appealed the suspension, but the suspension was affirmed. And so she then challenged the suspension in court. The Middle District of Pennsylvania and the Third Circuit ruled in her favor and the U.S. Supreme Court, just yesterday, also ruled in her favor by a vote of 8-1.
Now, the chief area of controversy in this school speech context, particularly this one that raises questions of a school’s ability to regulate off-campus speech, is the conflict between these two values. On the one hand, we have an interest in protecting individuals' free speech, and young people, whether they're students in public schools or not, have a right to free speech just like anybody else. It's not absolute, but they have a right to free speech. And if schools were able to regulate student's speech all the time, whether they were in school or not, then the school would be able – the school, that is, the government -- would be able to insert a degree of control over the student's speech throughout the student's, basically, entire existence during the time that she would be in public school in a manner that we would think would be inconsistent with the limited government rationales behind the First Amendment. That is, most of us, I think -- certainly most of the Supreme Court thinks that it's too much power given to the government to allow schools to regulate a student's conduct whether at home, at school, or anywhere else, simply because a student happens to go to school, that going to school at a public school does not, by itself, give the school authority to regulate that student's conduct entirely, including that student's speech. So, that approach is too much.
On the other hand, the school does have a considerable interest in ensuring that students' speech doesn't undermine the educational process of the school. Now, the principal precedent in this area is Tinker v. DesMoines School District which is a very famous case involving a protest of the Vietnam War. Mary Beth Tinker wore a black armband to protest the war. She brought it into school. She wore the armband during class. The school disciplined her for it and the Supreme Court said that that discipline was unconstitutional because the court said there wasn't all that much of a risk that her wearing the armband would disrupt the functioning of the school.
Nevertheless, we can easily imagine other hypotheticals where that wouldn't be the case, where individuals would -- the individual's free speech rights could be inconsistent with the proper functioning of the school. If you decide to post a political protest or do a parade or something in the middle of math class, that's inconsistent with the educational process of the school. And so, everybody agrees that, at least to some extent, students' free speech rights can be limited by the school.
And so, the Third Circuit finally came up with a fairly bright-line test that would distinguish the kinds of student speech that could be regulated by the school from the kinds of student speech that couldn't. And the Third Circuit's test was basically, is this speech occurring on school grounds or as part of a school function or not? So, the school was able to regulate speech at school but not regulate speech at home.
The school district argued to the Supreme Court that that standard was improper. That it failed to give schools adequate authority primarily because of this: That from the school district's perspective, it doesn't matter where the speech occurs, where it is made, from where the speech is posted to the internet. That doesn't matter. What matters is whether there is an effect in the school. And the school district said that speech that occurs off of school grounds can have a deleterious effect on the educational process in the school.
For example, insults, bullying, harassment, that kind of thing that occurs on the playground or at the bus stop, that can have an effect on the bullied or harassed student's ability to perform well in school. And in the age of social media, where posts can take place from anywhere but be visible from anywhere, social media posts, even if made, as this one was, on a Saturday, not from school grounds, those posts can have quite an effect in a school because the students who are members of the audience would come into contact with the post, would see the post, and if the post happened to be especially controversial or otherwise noteworthy, it might become the topic of a great deal of conversation in the school and might distract the students from their proper studies.
So, that's the essence of the debate—the various positions of this case, at least stated at its extremes are -- plaintiff's position—student's position—that you have no right to regulate my speech when I am outside of school or at least not participating in a school-sponsored function, not on a field trip, not at a sporting event, not on school grounds itself, and then the school's position, on the other hand -- that we have a right to regulate speech or other conduct whenever it has an effect on the school.
We got a question on the chat. The question says, "Does this opinion give any hints whether the case might have come out differently if B.L. had engaged in what might be called hate speech? And if so, might the case be interpreted as reflecting changing societal norms regarding what is considered obscene rather than any foundational principle of First Amendment law?"
The Court gave an oblique reference to something like that. First, the Court has defined obscenity quite narrowly. Obscenity, for constitutional purposes, is hard-core pornography and would, in no way, refer to the kinds of profanity that we might refer to as obscene speech. So, even though we might say that, colloquially -- we might say that her speech involved an obscenity, it is not obscenity in the constitutional sense, and I don't see that the Court will expand the definition of obscenity to include hate speech or other kinds of insults.
Likewise, it's really hard to fit this post into the fighting words doctrine, for example, because it's not directed to any person in particular. It's not sent to an individual person; it was posted in a social mass media kind of way. It was distributed to a bunch of people, so it's hard to consider it fighting words. It's also inappropriate to consider this particular speech as a threat, although we can, again, imagine situations where students' speech, either on social media or elsewhere, might be considered a threat. And that, obviously, would be constitutionally unprotected.
But this case does not fit into any of those categories that the Court has established earlier as being of limited value or outside the protection of the First Amendment.
Now, about the question's reference to hate speech. Hate speech is not one of those categories that has limited or non-existent First Amendment protection. The Supreme Court has said that speech is protected even when and, perhaps precisely, when it offends. And speech that is made in strong terms—offensive terms—is just as protected as speech that is polite. So, there is no category of hate speech that is unprotected or lesser in protection than other kinds of speech.
That said, the Court did suggest that there might be some opportunity for schools to regulate students' speech if it had a more direct effect than this speech did on other students. Tinker suggested that students' speech that interferes with the rights of other students could be penalized. And the Supreme Court, in this case, suggested that " serious or severe bullying or harassment targeting particular individuals, or threats" could be the subject of school discipline. Now, some of that might fall into a category of hate speech if you want to try to come up with a definition of it. But that's as close as the Supreme Court got here. The Supreme Court did not say that the case would have come out differently if there was hate speech. It didn't suggest what that might mean even if there was such an exception.
So, the basic answer to that question is no. The Supreme Court didn't give many hints about what would happen were the facts somewhat different.
And that brings me to a major point before I get to the next question. The Court’s -- what did the Court say? What did the Court decide? What were the Court's rationales? What did the Court say about the future?
The Court ruled 8-1 in favor of the student and said that the school district's attempt to punish B.L. for this speech was unconstitutional. The Court did not, however, come up with a clear rationale as to why that was—why the school district's punishment was unconstitutional. It said—the Court said—that school's attempt to punish off-campus speech should be viewed skeptically and that schools have less power to discipline students for speech off campus than they have to discipline students for speech on campus. Less power, not no power. The Court explicitly rejected the Third Circuit's idea that the school district's power to regulate student speech should be limited to the school campus and school activities. Instead, the Court suggested that some schools -- in certain kinds of factual situations, the schools would have authority to regulate off-campus speech, but that would be rare, that courts should be hesitant before allowing school districts the authority to regulate off-campus speech, but there might be some times where it was appropriate to allow it.
The opinion was written by Justice Breyer. And so the lack of a clear rule coming from this case would not be a surprise to those of you who are familiar with his jurisprudence. He likes to decide cases very narrowly in a very fact-specific kind of way. In great contrast to someone like Justice Scalia, Justice Breyer tries to get away from establishing clear rules. And here he is successful in that effort. He writes an opinion that announces that the punishment in this case is unconstitutional, but he says very, very little about how to resolve future cases.
He does give three reasons why he thinks that student speech off-campus should, generally speaking, not be regulated by schools. He says, number one, that when students are off campus, it's generally the case that the schools don't stand in loco parentis to the student. That is, that most parents expect that the schools will supervise the kids at school and at school functions, but not on the weekends, not when they're at home. That that's the parents' job. So, the school stands in loco parentis and gets that extra authority to correct and discipline students' behavior when the school is in charge of the function that the student is attending, but not otherwise.
Second, the Court suggested that if schools can regulate students' off-campus speech, then schools would be regulating just too much of the students' speech, that there wouldn't be a kind of residual area where the students could speak unconstrained by any kind of government restriction. If the schools could restrict speech while they were on campus and while they were off campus, well, then the students would effectively have no area where they could speak without government regulation. And the Court said that that was another reason for viewing the school's ability to punish off-campus speech narrowly.
And then, third, the Court suggested that schools themselves have an interest in promoting the ideals of free expression. And so, if the school were to come down against the speech that it didn't agree with—speech that might have been unpopular, speech that it would think of as offending someone else, even speech that was made off-campus—well, the lesson that the school would be sending to other students would be that "we don't value debate. We don't value the principles of free expression. We don't value the ability to explore unpopular views." And that value, the Court said, is important and provides another reason why we should insist that schools allow students to speak off campus in a way that might not be appropriate if they said it on campus.
So, that's the majority opinion. The ruling was, this student cannot be disciplined for this speech. As to why, the Court's very iffy on that. It does -- one important point that I haven't mentioned so far, the Court says that, "Although we do allow schools to regulate students' speech when the effect of the students' speech is to produce a substantial disruption of the educational functioning of the school," =here there wasn't much disruption. Yes, some other students were upset by the post. It was -- they found it interesting. It was the cause celeb of a few days, and it might have distracted five or ten minutes from an algebra class, but it did not provide a substantial disruption to the school.
If there were a substantial disruption for the school, I think there is a decent argument. But this case doesn't preclude the school from disciplining students for that kind of speech.
So, there is still going to be a ton of these student speech cases where the results are going to be in question. For example, these bullying kinds of issues. If the -- student A insults student B and makes student B feel bad, can the school punish student A? And does it matter what kind of insulting speech it was? Does it make a difference whether the insulting speech is because the -- as Justice Sotomayor suggested in oral argument, that you, the insulted student, are so ugly that you should die. I think that was her hypothetical. Does it matter if it’s insulted on the basis of race or ethnicity? Does it matter to take another suggestion from the opinions in this case -- a claim that a different student has a sexually transmitted disease? Or do any of those kinds of things allow the school district to regulate the student's speech when that occurs off campus either in regular speech -- that is, the way we used to refer to speech, speaking off campus or at a kind of social media post, or something like that? And then there are similar cases that we might suggest based on people taking offense at other peoples' conduct.
It seems pretty clear or, again, is very vague on this, but it seems pretty clear that the Court will not allow a school district to punish a student for off-campus speech simply because someone is offended by the speech. So, if a student off campus, on his own social media page, posts a Black Lives Matter or Blue Lives Matter post, or whatever, or posts a Confederate Flag picture on his own social media page, and somebody else at school is offended by that, I think it's fairly clear that that does not provide authority for the school to punish the speech. Had the same speech occurred on campus, the result may well be different. But I think it's pretty clear from this opinion that the school does not have authority to regulate off-campus speech, particularly that speech that deals with political, religious, social commentary kinds of valuable speech -- what the Court would call speech on a matter of public concern. Any of those kinds of matters, I think, would be constitutionally protected, even if someone at school was offended by those posts and, as a result of taking an offense, there was some kind of disruption at school.
Now, I should say a word about Justice Alito's concurrence and Justice Thomas' dissent, but I'll be brief. Justice Alito's concurrence is not a concurrence in the judgment. It's a concurrence in the opinion of the Court and he was joined by Justice Gorsuch, so both of them agreed with the Breyer opinion and wrote separately. The chief point of Justice Alito's opinion seems to be that he views this doctrine, as tied to an implicit or explicit consent on the part of the parents for the student's speech, to be limited.
Let me say that in a different way. For Justice Alito, the schools should be able to regulate students' behavior, including students' speech, when it's reasonable to think that the students' parents are giving permission to the school to regulate the students' behavior, including the students' speech. And Justice Alito says, "Well it's quite reasonable to think, that if you send your kid to a public school, you are giving the public school permission to make sure that that kid doesn't speak out of turn in class." It's quite reasonable to think that when you send your kid to a public school you're giving the school permission to regulate that student's speech on the playground or in field trips. It's quite reasonable to think that if you send your kid to a public school, and he has to do homework or he has to do an online lesson, that the school would be able to punish the student for cheating on that online lesson or on that homework, or whatever, regardless of where that occurs or regardless of whether that -- the cheating or misbehavior happens to involve speech.
However, for Justice Alito, he says that this case, given that there was -- given that the speech occurred well off school grounds on a Saturday with no real connection to the school and didn't even -- the speech wasn't even targeted at the school or at any particular school personnel, it just expressed displeasure about the school -- Justice Alito says it's unreasonable to think that the parents would have given the school permission to discipline their kid for this speech that occurred off school grounds and only involved the school to the extent that the subject matter of the student's criticism related to the school.
Justice Alito and the Court both discussed some arguments that the school district had raised for reasons why the discipline, in this case, should have been allowed. There were three primary arguments -- the Court and Justice Alito reject all three of them.
The first one was that this is vulgarity. After all, we have an ability to teach students good manners and good behavior and discipline students for behavior that is inappropriate. So, this wasn't just criticism, it was a vulgar criticism, so can't we punish a student for the use of vulgarity? The Court and Justice Alito say, well, even if that's some legitimate interest here, you're not really doing that. You're not making any attempt to stop kids from swearing. You're not doing it in any kind of systematic way. You're not doing it, as far as we can tell, against anybody other than B.L. So, there wasn't a -- this wasn't part of a policy that we're not going to let you post swear words or say swear words. This was a policy, to the extent it was a policy at all, was directed at her and people took offense because of the criticism—the substance of the criticism against the school and the school official.
Second, the school suggested that we should be able to discipline B.L. for this speech because of the risk of disruption. But the Court and Justice Alito said there wasn't any disruption here. Or at least there wasn't nearly enough disruption to allow that exception to come into play. For the student's speech to be limited on the grounds that the speech would cause a disruption in the school, there has to be much more of a risk of disruption than the students are going to talk about this and they're all going to be distracted from their studies for a few minutes. That's not the kind of disruption that the school was talking about. Perhaps, a kind of fight or a much larger disruption might qualify to allow the school to limit some speech, but nothing approaching that was present here.
And then there was an argument that the school should be able to discipline this cheerleader for speech denigrating the cheer coach and the cheer team in order to promote team morale. And if you have a cheerleader who is making a post undermining the team, then that undervalues the team and then that the school has a legitimate interest in stopping a participant in the team from denigrating the team.
The Court and Justice Alito suggest, well, that might allow some discipline. However, a year's suspension for this kind of post seemed not really directed to that goal. And it could be -- it was conceivable that if a school wanted to protect its team morale by imposing a kind of across-the-board rule that if -- that you voluntarily decide to come onto the cheer team and, therefore, we can restrict your conduct as it relates to the cheer team, that might be okay. But the school district here didn't have, and didn't enforce, any policy like that.
And the Court also mentioned that there doesn't seem to have been much of a harm to team morale caused by this. The post was not made on broadcast media, for example. A student didn't take a billboard out. The student didn't denigrate the team at the school's football game, or something like that. She just showed frustration to whoever it is who got her Snapchats, and so, the risk to team morale wasn't really present on these facts.
A word about Justice Thomas' dissent. Consistent with past cases, Justice Thomas views the school's authority over schoolchildren very broadly. This is a view that is not shared by anybody on the rest of the Court. But he views the school as having in loco parentis authority, including a significant amount of authority when the speech occurs off campus. In Justice Thomas's view, the appropriate question is whether the speech—the off-campus speech—has "a proximate tendency to harm the school, its faculty or its students or its programs. A school can regulate speech," he says, "when it occurs off campus so long as it has a proximate tendency to harm the school, its faculty or its students or its programs."
And in his view, this speech did because it denigrated the cheer team and the school and because it insulted the school -- that that allowed the school to impose discipline for it.
All right, a couple more questions are in the queue.
Question: If an obscene gesture is protected speech, why isn't the creation of a custom-made cake for a special occasion -- for example, a same-sex marriage -- protected speech?
I'm not sure that the Supreme Court has said that the creation of a cake isn't protected speech. It may well be. The Court has not decided that question definitively yet. But the Court has decided, for now -- for a hundred years -- that some aspects of symbolic expression—some actions that are understood to have a communicative impact—are constitutionally protected. The first case in this line, I believe, is Stromberg v. California where someone waved a red flag and the Supreme Court said that that's speech. It is the equivalent of saying, "I agree with the ideology represented on this flag." Waving an American flag is protected speech. I believe in the ideals represented by this flag. Burning the American flag -- as I assume you all know because of Texas v. Johnson and The United States v. Eichman, burning the American flag is protected speech. The message is equivalent to, "I disagree with the values represented by this flag."
So, the fact that an obscene gesture or some other kind of symbolic expression may not take the form of words, that doesn't mean that it's not constitutionally protected speech. Speech, in the constitutional sense, refers to expression, communication, so it doesn't matter whether someone's giving the okay sign, the thumbs-up sign, or some other kind of non-verbal way of communicating. That is constitutionally protected speech unless it falls within one of the Court's exclusions.
Next question: Does the opinion provide any parameters for the state action requirement underlying implication of the First Amendment? For example, a fully public K-12 school system, post-secondary public colleges and universities charging tuition, private schools and universities accepting public funds in the form of vouchers or federal student loans, or entirely private schools accepting no direct formal public funds?
No. This opinion says nothing of the kind. This case clearly involved a fully public K-12 school system and so there was no need to address any of those kinds of subsidiary questions. The Court -- I think it's fairly clear from other established doctrine, that state action is required and that a purely private system—purely private school or school district—would have authority to discipline students for speech whether on campus or off. It would have much greater authority than would a public school.
I think, largely, that’s – it’s the state action doctrine that you mentioned practically. It is also related to the fact that you have a choice about whether to go to the private school. The private school says we have stronger speech restrictions than the public school, but you don't have to go here. If you don't want to follow our rules, go to the public school. Then someone who chooses to go to the private school anyway can buy into those rules. But the state action doctrine would make that argument, I think, superfluous.
Now, it did show up that -- that kind of voluntariness argument showed up a little bit in this case in Justice Alito's concurrence, and even a bit in Justice Thomas' dissent, oddly enough, where Justice Alito says students don't really have a choice about whether to go to school. We have mandatory school attendance laws. And even if some students can go to private schools, that 90 percent of kids go to public schools, whether because they can't afford to go somewhere else or because they want to go to a public school, but they don't have a choice of not going to school at all. And maybe, practically, they don't have a choice of going anywhere but the public school.
So, for Justice Alito, it's improper to allow the schools extra authority on the ground that these kids are choosing to go to the public school, because they're not. The choice isn't free. They're not allowed not to go to school and they may not have much of a choice about going somewhere else.
For Justice Thomas, he sort of suggested that possibility and he said it is possible to think that public school's authority might be limited because school attendance isn't, really, voluntary. But prior decisions of the Supreme Court haven't rested on that ground and so I'm not going to explore it more. I don't know whether this represents a softening of his position or willingness to reconsider it in the future or an understanding that he's not likely to persuade a majority of the Court to his view that schools have considerably broader authority to regulate speech than the rest of the justices think.
So, I'm not t quite sure what's behind this argument there, but it does suggest that even he would be somewhat open to the argument that we can't -- that there's a problem with forcing students to go to school and then saying, well because you're going to school, we can restrict your speech. Even in other areas of First Amendment law where we have the, so-called, unconstitutional conditions problem, it's generally seen as a problem to offer a benefit to people on the ground that they waived their First Amendment rights. Here, we're not offering much of a benefit. We're just demanding that they do something and then say, because you've complied with our law, your subject to even further restrictions.
All right. Well, I will take a minute or so to wrap up my remarks. And then -- but if anybody has any further questions, I am happy to discuss them some more.
So, what's the bottom line in this case? The Court says that speech that occurs off campus is less likely to be regulated. The school's power to regulate off-campus speech is less than the power that the school has to regulate on-campus speech, but it's not really clear about how much less, and it's not really clear about what the situations are in which that speech—off-campus speech—could be regulated.
This case, I think the Court viewed it just as too easy a case -- that the facts of this case were so stark that the speech, not only occurred off campus, but didn't have much of an effect at all on the school. And I think in that -- because of that context, the Court said, let's just deal with this case. Let's get the right answer in this case and let's refrain from creating a clear rule that we might regret when the next case comes down the road.
So, I think that this case doesn't tell us very much, but it does take a step in the right direction to say that merely because speech has an effect on a school -- or might conceivably have an effect -- that's not a good enough reason to regulate speech. And merely because some other student might be offended by a student's speech off campus, that doesn't provide a good enough reason to regulate that speech within -- to have the school district regulate the speech.
Beyond that, I think we'll have to wait for the next case to figure out exactly what the doctrine will look like.
Again, thank you very much for your attention. Thank you for the opportunity to speak with you this afternoon. I enjoyed it, and I look forward to the next time.
Evelyn Hildebrand: Thank you. And on behalf of The Federalist Society, I want to thank our expert, Professor Michael Dimino, for the benefit of his valuable time and expertise today. And I want to thank our audience for participating and sending in your questions. We welcome listener feedback by email at firstname.lastname@example.org. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events.
And we do have an upcoming webinar this afternoon at 4:30 to discuss the Supreme Court's decision—yesterday's decision—in Lange v. California.
Thank you all for joining us today. We are adjourned.
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.