In the biggest free speech decision of the year, an ACLU case, the U.S. Supreme Court made it clear to school officials across the country that they must respect student’s rights to free speech outside of school, even when it takes aim at the school.
We asked ACLU of Nebraska Legal Director Adam Sipple five questions about what the former cheerleader's case means for students in Nebraska.
Could you briefly describe this recent free speech win and some of the major takeaways?
Adam: The Supreme Court has made clear that students do not “shed their constitutional rights to freedom of speech or expression,” even “at the school house gate.” However, authorities have some authority to regulate speech in school, such as to prevent substantial disruption of the educational environment, for example. In this case, a cheerleader who attended a public school was kicked off the cheerleading squad based on her Snapchat posts, which included vulgar language and gestures expressing frustration with the school and the cheerleading squad.
Previous Supreme Court cases involving the free-speech rights of public school students concerned speech in school or in a school-sponsored event or publication. Because the cheerleader in this case was at an off-campus convenience store when she posted the messages, the case called upon the Court to determine how much authority schools have to regulate students’ expression when they are not at school. The Supreme Court held a school’s interest is much more limited in that situation.
The best takeaway for me is the Court’s recognition that “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy” and should therefore attempt to model and protect the “marketplace of ideas” central to our democracy. That protection must include the protection of unpopular ideas.
It was also great to see the justices recognize that if a student’s speech is overly regulated both at school and while away from school then the student’s freedom of expression could be almost completely gutted. In today’s world, the stakes are high. Students should not be forced to fear a sullied educational record will result from expression that would normally be protected under the First Amendment.
Could you talk a little bit about dissenting, unpopular or explicit language and how these opinions fall under First Amendment protections?
Adam: The law recognizes that unpopular views, views that call for change of the unjust status quo, need and deserve the most constitutional protection so long as they are not obscene, incite violence or include fighting words.
So while the law allows a school to teach good manners and punish the use of vulgar language at school, as they stand to some degree in the shoes of a student’s parent on school grounds, there is little interest in allowing the school to do so when the student’s words are uttered on the student’s own time and without specifically targeting others with vulgar or abusive language. In this case, the Court extended First Amendment protection to the use of profanity in connection with, but not while present at or participating in, a school extracurricular activity.
How does this work align with some of the student free speech work we do here in Nebraska?
Adam: We consistently strive to protect the rights of free speech afforded students and all Nebraskans. Last year, we negotiated a judgment entered against the City in ProBLAC v. Omaha requiring Omaha police to make room for peaceful expression in city streets. And we are currently examining cases involving a school’s discriminatory suppression of speech calling for racial justice.
How critical is protecting free speech regardless of if we agree or disagree with what is being said? What are some of the legal and personal challenges to this work?
Adam: Can you imagine where this nation would be if those with minority views, or representing minority populations, were not allowed to use their voices to call for change, to call out injustice, and to demand adherence to the constitutional protections for which we are revered across the globe? These are the rights over which blood has been spilled and lives lost.
The expression of once unpopular views fueled progress toward racial equality, gender equality, marriage equality, protection of the LGBTQIA+ community from discrimination and other civil rights movements. It is the voice of the minority that has consistently made our country better, stronger and more just. Dissent is patriotic.
As Justice Breyer put it: “Our representative democracy only works if we protect the ‘marketplace of ideas.’ This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection.”
Regardless of the content of this student’s Snapchat account, the justices mentioned that it is not about the idea of protecting a student from saying something explicit, it is about free speech. What are your thoughts on this?
Adam: In 1970, during the Vietnam war, a man wore a jacket bearing the words “Fuck the Draft” into a California courthouse. Noting it is “often true that one man’s vulgarity is another’s lyric,” the Supreme Court held the man could not be convicted for disturbing the peace. The Court warned that “governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.” The decision stands for the principle that profane words, in themselves, cannot be banned under the First Amendment.
Let’s face it, some words, even vulgar words, are sometimes more powerful than others. Some words, because they make people uncomfortable or provoke thought regarding an issue are a better catalyst for change. It is not for nine robed men and women to determine the vernacular of our democracy.