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Guest Editorial: Court makes the right call on student speech
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Guest Editorial: Court makes the right call on student speech

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Sometimes the Supreme Court protects constitutional rights best when it doesn’t establish what lawyers call a bright-line rule applicable to every possible future situation. That was the case Wednesday when the court ruled in favor of a high school cheerleader who had been disciplined for a vulgar outburst on social media and a California man who was arrested after a police officer entered his garage without a warrant.

In Mahanoy Area School District v. B.L., the justices ruled 8-1 that a Pennsylvania school district violated the free speech rights of Brandi Levy when it suspended her from her school’s junior varsity cheerleading team. The school acted after Levy, disappointed that she hadn’t made the varsity squad, took a photo of herself and a friend raising their middle fingers and posted it on Snapchat. She also used a vulgarity to denounce the school, the cheerleading team and “everything.”

In agreeing with the U.S. 3rd Circuit Court of Appeals that the school violated Levy’s First Amendment rights, the court essentially reaffirmed the position it took in a landmark 1969 case that students at public schools have free speech rights so long as their speech doesn’t create the risk of a “substantial disruption of or material interference with school activities.”

The 1969 case, Tinker v. Des Moines School District, involved students wearing black armbands to protest the Vietnam War. Levy’s speech obviously was more personal than political. But, writing for the court, Justice Stephen G. Breyer properly said that it constituted “criticism of the rules of a community of which B.L. forms a part” and thus deserved protection.

Yet, even as it agreed with the appeals court that Levy’s rights were violated, the court rejected the lower court’s sweeping conclusion that schools couldn’t punish off-campus speech. Breyer rightly suggested that there were circumstances in which a school might regulate off-campus speech, such as “severe bullying or harassment targeting particular individuals.”

He warned, however, that “courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.” That makes sense. Even in the internet age, conduct by students off campus should generally be the responsibility of parents, not school officials.

In another decision handed down Wednesday, Lange v. California, the court refused to establish a categorical rule that police who are pursuing someone they have probable cause to arrest for committing a minor offense can always enter the suspect’s home without a warrant.

In 2016, California Highway Patrol Officer Aaron Weikert noticed that Arthur Lange was playing loud music and honking his car’s horn. Weikert followed Lange home and, as Lange was preparing to turn into his driveway, the officer said he turned on his car’s flashing red lights, a signal that a motorist should stop. Lange pulled into his garage anyway and Weikert entered the garage after him, where the officer said he noticed signs that Lange was intoxicated.

Lange sought to suppress the evidence obtained by Weikert because the officer had entered Lange’s residence without a warrant. But the California Court of Appeal took the position that the officer didn’t need a warrant and endorsed the idea that, under an exception for emergencies called exigent circumstances, a warrant isn’t required when there is probable cause that a person being pursued had committed even a misdemeanor offense. (The Supreme Court has recognized an exception from the warrant requirement in cases in which police were pursuing suspected felons.)

Writing for a seven-justice majority, Justice Elena Kagan rejected any such blanket exception for misdemeanors. Instead, she said, the court’s Fourth Amendment precedents called for a case-by-case consideration of whether a warrantless search involved exigent circumstances. She went on to invoke the principle from the common law that “a man’s house is his castle.”

As in the case of the cheerleader, the court in this case declined to establish a rigid rule. But police are on notice that they must think carefully before entering a home without a warrant, just as school administrators now know that they aren’t overseers of everything their students say online. The court has spoken clearly and powerfully, even if it hasn’t addressed every possible contingency.

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