This article is part of TPM Cafe, TPM’s home for opinion and news analysis.
A new ruling about a potty-mouthed high school cheerleader from the Supreme Court Wednesday indicates that the Court is still very protective of free speech, but is also troubled by violence. This could have implications for the hundreds of defendants who are awaiting trial for their roles in the insurrection at the Capitol on January 6, 2021. This could also have implications for ex-President Trump, should he be charged. If insurrectionists were trying to weasel out of jail time using the First Amendment, this new ruling suggests they should tap the brakes.
In Mahanoy Area School Dist. v. B. L., the Supreme Court upheld 8-1 the right of a cheerleader to swear, in a social media post, about her school and cheerleading team while off-campus. The outlier was Justice Thomas who thought that the school had a right to punish the student for her off-color, off-campus speech.
There were many different ways the Supreme Court could have handled this case, ranging from thinking about this as an online speech/offline speech case or an on-campus/off-campus speech case. But the justices took a nuanced approach, not laying down categorical rules that all online or all off-campus student speech would be out of reach of the regulation of public schools. Rather, Justice Stephen Breyer wrote for the Court: “the school violated B. L.’s First Amendment rights” when it punished her for her off-campus swearing during a snapchat by suspending her.
The Court was also careful to carve out areas where public school administrators would have more ability to curtail student speech stating “[t]he school’s regulatory interests remain significant in some off-campus circumstances…. These include 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.” In other words, the First Amendment is unlikely to protect a student for computer hacking or for sending online threats to students or teachers.
Justice Alito went further in a footnote in his concurring opinion citing lower court cases in which a student created a “hit list” of students and drew graphic images of violence, another in which a student spoke about committing a school shooting and a third in which a student sent a message depicting a pistol firing a bullet at his English teacher’s head. Justice Alito doesn’t provide an opinion on how these cases were decided. But it is clear that the Supreme Court wrote the Mahanoy opinion against a backdrop of mass shootings in schools that only abated when the majority of American schools shuttered their doors for pandemic prevention.
And at least Justice Breyer, writing for the majority of the Court, wanted to ensure that school administrators were not hand-cuffed by a broad First Amendment ruling that would make regulating credible student threats of violence on campus unreachable because they were sent from off-campus locations.
In this way, Mahanoy Area School Dist. v. B. L. follows the Supreme Court in other cases like Brandenburg which carve out “true threats” from First Amendment protection. As the Supreme Court wrote in Brandenburg v. Ohio in 1969 “later decisions [since Whitney v. California] have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Which brings us to the events of Jan. 6. While this case is about a wildly different set of facts — a student swearing and not a violent insurrection — the Capitol defendants should take note of how the Supreme Court is faithful to its precedent which draws a line between true threats of violence, which is not protected, and blowing off steam and swearing, which is protected.
What this means is that protesters who stood outside the Capitol on Jan. 6 were free to yell whatever profanities that wanted. But those who crossed the line into true threats, trespass and violence will not have the First Amendment to absolve them.
This could even have implications for ex-President Trump for encouraging the Jan. 6th crowd to act unlawfully. As Einer Elhauge argued in the Washington Post, Trump’s speech was an act of incitement. As he wrote, “Trump thus clearly incited lawless action (obstructing the operations of Congress is a crime) that was imminent (right after the speech, a short walk away).” So far, as far as we know, no one is prosecuting the ex-President for anything.
In the end, Mahanoy Area School Dist. v. B. L. is a very good case for the free speech rights of the millions of students attending public schools, concluding that, “It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
But this case could have broader consequence for defendants beyond school children.
Ciara Torres-Spelliscy is a Professor of Law at Stetson University College of Law, a Fellow at the Brennan Center and the author of the book, Political Brands.