Cheerleader’s Free Speech and Apple’s CSAM Cybertraps Live 66

In this podcast we are talking about the Supreme Court decision this fall regarding Mahanoy Valley v BL and Apple’s new policy on cryptographically scanning files for CSAM content. SCOTUS Decision

Mahanoy Area School District v. B.L. (Brandi Levy)

  • SCOTUSblog

  • Language warning

  • Majority [8-1] opinion written by Justice Breyer

  • Facts

    • Levy tried out for varsity cheerleading but was offered a spot on the jv squad

    • Levy was unhappy with the decision. The following weekend, while visiting a Cocoa Hut, she shared two snaps on her Snapchat “story” (24 hour availability)

      • The first was a selfie showing Levy and a friend holding up their middle fingers with a caption reading “Fuck school fuck softball fuck cheer fuck everything.” [SCOTUS quotes actual content — similar to Pacifica]
      • The second just showed a caption that read ““Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?” The message was followed by an emoji with an upside-down smile.
    • Levy’s list of Snapchat “friends” [SCOTUS uses quotes, interestingly] included some other cheerleaders. At least one used another cellphone to take pictures of Levy’s posts so that she could share them with other cheerleaders and adults.

    • Cheerleading coaches testified that team members were “visibly upset” and that the posts sparked discussion in a coach’s Algebra class.

    • Following consultation with the school principal, the coaches concluded that Levy’s use of profanity in her snaps was a violation of team and school rules. They suspended Levy for the coming school year.

    • Levy apologized but it made no difference. “The school’s athletic director, principal, superintendent, and school board, all affirmed B. L.’s suspension from the team. In response, B. L., together with her parents, filed this lawsuit in Federal District Court.”

    • After losing at the trial court and appellate level, the school district filed a writ of certiorari and SCOTUS granted the petition.

    • The precise question: “[w]hether [Tinker], which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.”

      • Tinker: students wore black arm bands to protest the Vietnam war and were disciplined. SCOTUS ruled in students’ favor but held that “schools have a special interest in regulating on-campus student speech that ‘materially disrupts classwork or involves substantial disorder or invasion of the rights of other.'”
  • SCOTUS Analysis

    • Tinker held that students do not lose their rights of freedom of speech or expression “at the school house gate”

    • Hazelwood, however, provides that “special characteristics of school environment” must be considered, including status of school “in loco parentis”

    • Schools may regulate student speech that falls into three categories

      • (1) “indecent,” “lewd,” or “vulgar” speech uttered during a school assembly on school grounds
      • (2) speech, uttered during a class trip, that promotes “illegal drug use” (Morse v. Frederick, “Bong Hits 4 Jesus”
      • (3) speech that others may reasonably perceive as “bear[ing] the imprimatur of the school,” such as that appearing in a school-sponsored newspaper
      • NOTE — I have some experience in this, as I helped publish an underground newspaper my sophomore year of high school called “The Bullblp”**
    • Tinker also recognized the special interest schools have in regulating speech that ““materially disrupts classwork or involves substantial disorder or invasion of the rights of others”

    • SCOTUS disagrees with Third Circuit as to whether schools lose their additional license to regulate speech simply because it occurs off-campus. Possible examples:

      • “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”

      • Student herself suggested instances in which on/off-campus distinction would not apply:

        • all times when the school is responsible for the student; the school’s immediate surroundings; travel en route to and from the school; all speech taking place over school laptops or on a school’s website; speech taking place during remote learning; activities taken for school credit; and communications to school email accounts or phones.”
        • Those examples might arguably include extracurricular activities, like cheerleading
    • SCOTUS largely punts. Reluctant to detail a specific list of exceptions to the Third Circuit’s rule.

    • “Particularly given the advent of computer-based learning, we hesitate to determine precisely which of many school-related off-campus activities belong on such a list. Neither do we now know how such a list might vary, depending upon a student’s age, the nature of the school’s offcampus activity, or the impact upon the school itself.”

    • “Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as “off campus” speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community.”

    • Three guidelines:

      • It is rare for a school to stand “in loco parentis” with respect to off-campus speech. Such speech normally falls within the responsibility of the parents
      • Routine regulation of off-campus speech by schools would effectively eliminate free speech for students, which is overly broad. This is particularly true with respect to off-campus speech dealing with core 1st Amendment concepts like politics or religion. Schools will face a heavy burden justifying intervention.
      • Schools, “as nurseries of democracy,” have a positive interest in protect unpopular expression by students.
    • “Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.”

    • Apply those general principles to the speech by Levy, SCOTUS held:

      • Her speech, while vulgar, did not have any characteristics which would strip it of 1st Amendment protection — not fighting words, not a threat, etc.
      • The speech was completely off-campus, did not reference any specific individuals or the school, used private equipment, and was intended for a personal audience.
      • While school has a general interest in teaching good manners, school was not standing “in loco parentis” at the time of Levy’s speech, and no delegation by Levy’s parents to do so in this instance
      • No evidence of “substantial disruption” resulting from Levy’s comments. Desire on the part of the school “to avoid the discomfort and unpleasantness that always accompany an unpopular conversation” is not sufficient grounds.
      • Mere apprehension of bad effects of speech does not justify its restriction
  • Reaction / Overviews

    • #2021-06-23 NAESP Statement

      • “Although we respect the court’s ruling, we are concerned with the precedence it establishes related to the ability for school leaders to appropriately respond to student actions that interfere with learning and the operations of the school. Furthermore, the vagueness of the decision complicates schools’ efforts to regulate off-campus speech given the goal to prevent potential disruption of school activities. However, we are encouraged that the court left open and suggested that educators could take action against some off-campus speech.”
    • #2021-03-04 Biden Administration, Education Groups Back School District in Student Online Speech Case

Apple Phone Scanning


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