Can the Supreme Court empower public schools to regulate off-campus speech? No! — First Amendment News 440

The question of public schools, especially K-12 schools, regulating off-campus student speech remains a vexing one. With continued frequency, mistaken conceptions of law encourage the government to act as a nanny state, thereby usurping parental rights. 

But why?

Let us begin with the ruling in Mahanoy Area School District v. B.L. Within certain broad parameters, the Mahanoy Court left many unsettled issues for “future cases to decide.” Consider in this regard the following examples:

• A group of 14-year-old girls mock one of their classmates at a local shopping mall and humiliate her because she is an observant orthodox Jew. They deride her attire and even call her a “kike.” Portions of this are videoed and then posted on social media. 
• Same as above, but the incident occurred in another state hundreds of miles away at a summer camp and was not posted on social media until months later.
• A group of 14-year-old boys mock one of their schoolteachers and make fun of his stutter. They call him a “retard.” This incident occurred at an off-campus party, portions of which were video recorded and then uploaded on social media. 
• A group of 14-year-old boys ridicule their school’s policies concerning the treatment of transgender students. They openly scorn such “faggot” policies that “allow perverts to use the girls’ bathrooms.” This incident occurred during a Facetime call that was secretly recorded and then posted online.

Let me be clear: All of these examples are, in my opinion, reprehensible and warrant public condemnation. The First Amendment allows at least that much. If such speech were spoken on campus, a school would be within its rights if it punished students in ways in accord with its rules of behavior . . . and consistent with state and federal constitutional constraints. 

But that does not really answer the question I mean to address: Namely, do cases like Mahanoy and Tinker v. Des Moines authorize (as in, empower) public school authorities to regulate such off-campus speech? 

Thinking about the scope of ‘special interest’

In its cert. petition in Mahanoy, the school district asked the Court to decide whether Tinker “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.”

What exactly does the phrase “may regulate speech” mean? On the one hand, does it mean that school districts are thereby authorized to regulate off-campus speech? On the other hand, does it mean no more than what are the constitutional restraints placed on off-campus student speech? For the reasons stated below, the two questions are importantly different.

Before proceeding any further into the conceptual thicket, let us consider a few words from Justice Breyer’s majority opinion in Mahanoy: “[I]n Tinker, we said schools have a special interest in regulating speech that ‘materially disrupts classwork or involves substantial disorder or invasion of the rights of others’” (emphasis added).

Nota bene: An interest is not synonymous with a grant of authority. How so?

Authority questions are antecedent to restraint questions

Properly understood, in our system of state and federal constitutional government, the state can only act when it is duly authorized by law to do so. For example, under California statutory law a student may be disciplined for “bullying” when the act is committed: 

off the schoolsite by means of an electronic device, including, but not limited to, a telephone, wireless telephone, or other wireless communication device, computer, or pager, of a communication, including, but not limited to, any of the following:

(i) A message, text, sound, video, or image.

(ii) A post on a social network internet website, including, but not limited to:

(I) Posting to or creating a burn page. "Burn page" means an internet website created for the purpose of having one or more of the effects listed in paragraph (1).

Such legal authorization is not within the constitutional power of a federal or state court to grant. It must be by a legislative authority.

Now ask yourself this: What if the California legislature had not authorized the regulation of such off-campus student speech? Absent a clear grant of power, would a school principal be within her authority to discipline a student for this kind of off-campus speech? If so, what purpose does such a statute serve?

The moral of the story: The first question concerning government power is whether it is duly authorized to act. The second question is, when it is thus authorized, has the government body acted within the constitutional restraints on that power?

Methodology

In the words of the late Oregon Supreme Justice Hans A. Linde:

A court’s obligation in a case that involves potential statutory and constitutional challenges to governmental action is to determine, first, whether the action is authorized by law; second, whether it is limited by the same or another law; third, whether it is limited by the state constitution and, if the action passes these tests, whether it contravenes the federal Constitution.

That approach, one premised on a methodology of legal argument, resonates with basic notions of constitutional government in a democratic regime.

Furthermore, that questions of authority must precede questions of constitutional limitations is implicit in the doctrine of constitutional avoidance, namely, that a court should not decide a constitutional question if the relief sought might exist by way of an interpretation of an applicable statute.

Yet even before that consideration there is this one: Has the government acted in a way that it is duly authorized to do so? That is a power that the courts, including the Supreme Court, cannot grant.

When, for example, a state school official seeks to punish off-campus speech in the absence of any authorized grant of power, has it not violated state and federal due process requirements?

The governmental nanny state

To the extent that school officials regulate off-campus school behavior in the absence of a legitimate grant of power, they act as a government “nanny” and thereby usurp parental authority over children.

John K. Wilson on First Amendment absolutism: A response

Back in 2021, FIRE’s Nico Perrino did a “So To Speak” podcast exchange with Nadine Strossen and others on the topic of free speech absolutism. In the course of that discussion, Strossen argued that “government may restrict speech if, but only if, it can satisfy an appropriate heavy burden of proof. If it can show that the particular restriction is necessary and the least speech restrictive alternative in order to promote some countervailing goal of compelling importance.” John K. Wilson, a First Amendment absolutist, took respectful exception to that view.

Given that, and given that last week’s FAN was entitled “Where have all the First Amendment absolutists gone?,” Mr. Wilson inquired if we might publish a portion of a reply he wrote to Strossen at the time, which appears below:

I don’t think that’s the right approach to free speech, to say that the government can censor whatever it wants whenever it can show some value of compelling importance. Instead, I think the government is banned from restricting many broad categories of speech even if there might be some important value it seeks to protect.

The idea of free speech absolutism is that we can best protect many forms of free speech by placing them categorically off limits for regulation. For example, I appreciate your absolutist approach to disinformation in your recent Tablet article.

You don’t say that government should consider the harm caused by every particular disinformation and then balance the guiding values to determine if disinformation should be banned; instead, you say disinformation shouldn’t ever be punished because the danger of allowing regulation over this vague category is too great.

That kind of absolutism applies to many other things. The ban on prior review is an example of free press absolutism. Even though we can imagine some cases where government prior review could prevent some terrible error by the media, we prohibit it because of the enormous danger involved. Blasphemy is a good example of a category given absolutist free speech protection in the US. Likewise, hate speech (unless it falls into some other prohibited category such as threats or harassment) is a category absolutely protected, even if it causes psychic harm to others.

Instead of running from absolutism, I think we need to acknowledge absolutism’s importance as the backbone of the First Amendment. If we allowed the government to censor on a case-by-case basis using a balancing test of values, and hoped that reasonable judges would always overturn mistakes, it would cause enormous chilling effects even if the system worked correctly. 

So I think we need to embrace free speech absolutism, and persuade others to do the same. That’s not easy (and I can understand why everybody runs away from the term), and many of the debates about free speech seem to circle down the same drain.

Perhaps the best way to persuade people to embrace free speech absolutism is to compare it to other rights that people have an absolutist approach to.

For example, I am also a voting rights absolutist. And most progressives are, too. We believe that voting is a right that should never be denied. So we can ask our fellow progressives, should white supremacists have their right to vote revoked because it leads to terrible harm? Most people would be appalled by this idea and recognize the danger of giving the government the power to decide who can vote. Well, if you don’t think Nazis should have their right to vote revoked, why should they have their right to free speech revoked?

I’m also a right-to-a-trial absolutist, as are most people. So we can ask progressives, should we balance the right to a trial with the interests of equity and diversity by revoking the right to a trial for anyone accused of hate crimes and instantly locking them up without any proof of wrongdoing? After all, trials can result in the acquittals of evil people, trials are deeply unequal based on privilege, and trials can cause traumatic harm to victims, so should we just abolish trials for hatemongers and toss the Nazis in prison if anyone accuses them of something? Even the most radical leftist will hesitate to abolish the right to a trial, because they believe in it absolutely. And if we shouldn’t revoke the right to a trial for hateful people, why should we revoke their right to free speech?

This doesn’t mean we need to accept the flaws of the status quo. We can demand the right for everyone to vote, rather than revoking voting rights for Nazis. We can demand the right to a trial for the hundreds of thousands imprisoned without one because they are too poor to afford cash bail, rather than revoking the right to a trial for Nazis. We can demand the right to free speech and protest be fully protected and support opportunities for free expression, rather than revoking the right to free speech for Nazis. We can defend liberties by expanding them to truly protect everyone, rather than revoking the rights of our opponents. That’s what absolutism means.

Florida school district agrees to restore banned LGBTQ+ books

• “Florida School District Must Restore Books With LGBTQ+ Content Under Settlement,” First Amendment Watch / Associated Press (Sept. 13)

A school district in northeast Florida must put back in libraries three dozen books as part of a settlement reached Thursday with students and parents who sued over what they said was an unlawful decision to limit access to dozens of titles containing LGBTQ+ content.

Under the agreement the School Board of Nassau County must restore access to three dozen titles including “And Tango Makes Three,” a children’s picture book based on a true story about two male penguins that raised a chick together at New York’s Central Park Zoo.

[. . .]

The suit was one of several challenges to book bans since state lawmakers last year passed, and Republican Gov. Ron DeSantis signed into law, legislation making it easier to challenge educational materials that opponents consider pornographic and obscene. Last month six major publishers and several well-known authors filed a federal lawsuit in Orlando arguing that some provisions of the law violate the First Amendment rights of publishers, authors and students.

“Fighting unconstitutional legislation in Florida and across the country is an urgent priority,” Penguin Random House, Hachette Book Group, HarperCollins Publishers, Macmillan Publishers, Simon & Schuster and Sourcebooks said in a statement.

Jameel Jaffer on TikTok ban

• Jameel Jaffer, “History Has Already Discredited the TikTok Ban,” Just Security (Sept. 14)

On Monday [Sept. 16], three federal judges will consider the constitutionality of the so-called TikTok ban, which will shut off TikTok in the United States beginning in January unless TikTok’s China-based owner sells the platform before then. TikTok is a relatively new technology, but the ban is a reprise of past reactionary efforts to limit Americans from accessing media from abroad. The court should see the ban in that light and strike it down.

[. . .]

With faster service into Philadelphia, the area around some stations — especially Wilmington and Claymont — could experience significant population growth that will ultimately increase the state’s tax base.

The TikTok ban is an unwelcome throwback to an era in which the government exercised far-reaching control over Americans’ access to information and ideas from abroad. Many of the legislators who voted for the ban acknowledged forthrightly that the law was intended to limit Americans from accessing viewpoints with which they, the legislators, disagreed. (Some of these statements are collected at pp. 19-23 of the Knight Institute’s brief.) And while the Justice Department now says the ban is necessary because China might access TikTok’s databases of information about American users, it’s difficult to take the argument seriously when even the Office of the Director of National Intelligence has observed that China can readily access the same kinds of information in other ways, and when Congress could address data-collection concerns more effectively with a privacy law that limited what TikTok and other platforms can collect.

New technology presents new challenges, and perhaps in some contexts these challenges will require Americans to reconsider hard-won freedoms that are, for all of the United States’ profound problems, still the envy of much of the world. But before we permit the government to reinstate long-discredited forms of censorship, we should at least require it to demonstrate that its professed interests—protecting privacy, most significantly—couldn’t be achieved in some other way. The Biden administration hasn’t established that the TikTok ban is actually necessary to achieving any legitimate government interest. Under settled First Amendment standards, that should be the end of the matter.

D.C. Circuit panel skeptical of TikTok’s First Amendment claims

• Ryan Knappenberger, “DC Circuit skeptical of TikTok’s First Amendment effort to stave off looming ban,” Courthouse News Service (Sept. 16)

Social media giant TikTok argued before a D.C. appeals panel on Monday that the federal government’s effort to ban the app — or force its divestiture from its Chinese parent company — would amount to an "unprecedented" attack on the First Amendment.

The popular video-sharing platform and a coalition of content creators on the app urge the three-judge panel to find the Protecting Americans from Foreign Adversary Controlled Applications Act as blatantly unconstitutional due to its clear effort to suppress content on the app that conflicts with American interests.

The panel, made up of U.S. Chief Circuit Judge Sri Srinivasan and U.S. Circuit Judges Neomi Rao and Douglas Ginsburg, presided over nearly two hours of arguments 

[ . . . ]

The panel did not appear to immediately accept [TikTok’s divestiture] warnings, instead repeatedly pointing to U.S. Supreme Court Justice Amy Coney Barrett’s concurring opinion in the recent NetChoice v. Moody decision, in which the Donald Trump appointee suggested that foreign-owned corporations do not hold First Amendment rights.

Srinivasan, a Barack Obama appointee, noted that TikTok was targeted because Congress views China as a foreign adversary, a formal designation also shared by the governments of Cuba, Russia, Iran, North Korea and Venezuela. Srinivasan suggested that Congress would have a compelling interest in blocking TikTok if conflict were to break out.

[TikTok lawyer Andrew] Pincus maintained that strict scrutiny would especially apply during wartime, and it would make more sense to add a disclosure to the app that it is owned by China.

Review essay: Healey on Samantha Barbas’s New York Times v. Sullivan book

• Thomas Healy, “A Democracy Story: Reframing a Free Speech Landmark,” SSRN (posted Sept. 10)

What can we learn about the wisdom and legitimacy of current free speech doctrine by revisiting the story behind a landmark First Amendment decision? That’s the question I explore in this review essay of Samantha Barbas’s new book, “Actual Malice: Civil Rights and Freedom of the Press in N.Y. Times v. Sullivan.” As her subtitle indicates, Barbas’s book attempts to reframe the story of Sullivan – to shift the focus from the issue of free speech to that of racial equality. Although there are real benefits to this approach, I argue that there are also risks. The primary one is that portraying Sullivan as a civil rights case will weaken its force as a free speech precedent, implying that the decision was the result of special circumstances and that the actual malice rule it adopted is therefore not generally applicable. Instead, I argue we should think about Sullivan primarily as a case about democracy and the rules necessary to sustain it. Doing so not only underscores the decision’s universal dimensions; it also helps to defend against the numerous critiques leveled at the Sullivan regime in recent years, most of which, I argue, are unfounded. 

New article on regulating artificial intelligence filtering system

• Rafael Conejos, “Social Media Should be a Scrape Free Zone from AIFS,” SSRN (posted Sept. 12)

Artificial Intelligence (AI) is used to screen job applicants in the United States (U.S.) every day by the thousands yet neither the applicants nor some of the employers who use it know precisely how they work or why they arrive at those results. This is due to algorithms being trade secrets and the black box dilemma of AI. If rejection is based on factors which amount to unlawful discrimination, how does an applicant prove it if the process is a secret?  

In a highly competitive job environment, where there are more applicants than there are openings, employers rely on the predictions made by Artificial Intelligence Filtering System (AIFS) in determining, based on limited data, if one applicant will underperform or outperform another applicant. AIFS achieves this through training data which instructs it to seek out desirable qualities in an applicant from the information the latter has provided or which AIFS finds publicly available. The more information it has about an applicant, the more accurate the prediction. Like a general warrant being served by an officer in a home, AIFS scrape all publicly available information about the applicant, including their social media accounts, with the goal that more information, regardless of relevance for the role, is helpful when it ‘scores’ one applicant against another.

However, not all social media accounts are intended by the applicant to be viewed through the lens of an employer’s AIFS. Often, social media, outside of LinkedIn, is a place of self-expression and public advocacy. There are many private matters in one’s life which an employer has no business in using to assess one’s fitness for a role. Allowing AIFS to remove the practical obscurity of a person by scraping years’ worth of data on one’s social media account is not only an invasion of privacy, but it chills freedom of expression.

AI’s ability to harness and process vast amounts of data from social media allows it to predict facts an applicant may have intentionally left out, such as age, race, religion, or political affiliation. Having acquired these facts, an employer can achieve systematic job discrimination in the thousands while hiding behind the “neutrality” of AI. It can use proxy factors as lawful excuses not to hire an applicant based on poor cultural fit. Most of all, employers can evade litigation simply because of the high burden of proof that a plaintiff needs to prove that discrimination was the ‘but for’ factor which resulted in him not getting the job.

When it comes to the accessibility of online data, such as public social media accounts, the U.S. legal system struggles with a binary concept of privacy in which it sees personal data as being private or public but never anything in between. While in the European Union (EU), the collection and processing of personal data is centered on consent and relevance for a specific purpose and not the manner on how data is made available. 

‘So to Speak’ podcast on Ayn Rand and free speech

View video

• “Ayn Rand, Objectivism, and free speech,” FIRE (Sept. 12)

What happens when philosopher Ayn Rand's theories meet free speech? Tara Smith and Onkar Ghate of the Ayn Rand Institute explore Rand's Objectivist philosophy, its emphasis on reason and individual rights, and how it applies to contemporary free speech issues.

Smith and Onkar are contributors to a new book, "The First Amendment: Essays on the Imperative of Intellectual Freedom." Listeners may be particularly interested in their argument that John Stuart Mill, widely regarded as a free speech hero, actually opposed individual rights.

Tara Smith is a philosophy professor at the University of Texas at Austin and holds the Anthem Foundation Fellowship in the study of Objectivism. Onkar Ghate is a senior fellow at the Ayn Rand Institute, where he teaches undergraduate and graduate courses on Objectivism.

Related

• Ayn Rand on Phil Donahue in 1979

More in the news

• “Charges Filed Months After a Pro-Palestinian Camp Was Cleared at University of Michigan,” Associated Press (Sept. 13)
• Amy Beth Hanson, “Federal judge temporarily blocks Utah social media law aimed at protecting children,” Associated Press (Sept. 13)
• Jonathan H. Adler, “Sixth Circuit Denies Qualified Immunity for State University Officials Who Allegedly Violated Professor's First Amendment Rights,” The Volokh Conspiracy (Sept. 12)
• “FIRE condemns government-run animal shelter in Texas for censoring euthanasia debate,” FIRE (Sept. 12)
• “A Majority of Americans Can’t Recall Most First Amendment Rights,” Annenberg Public Policy Center (Sept. 12)
• Cass R. Sunstein, “Only the First Amendment Can Protect Students, Campuses and Speech,” The New York Times (Sept. 6)

2024-2025 SCOTUS term: Free expression and related cases

Pending petitions

• 360 Virtual Drone Services LLC v Ritter
• Coalition Life v. City of Carbondale
• Henderson v. Texas
• Murphy v. Schmitt
• Villarreal v. Alaniz 
• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu

Last scheduled FAN

FAN 439: “Where have all the First Amendment absolutists gone?”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.