Maybe Brandi is a nice person, but right now, I don't like her much.

Let me take a break from my usual assault on fascism in our country and talk about a Supreme Court case that just came down. I haven't talked about a particular case in a while. This one is MAHANOY AREA SCHOOL DISTRICT v. B. L. It's a case about free speech in high school. BL was a minor when the action was brought and her real name is Brandi Levi. As usual when discussing cases, I'm not going all legally-schmegally, citing cases and the like. If you want to read the case - 20-255 Mahanoy Area School Dist. v. B. L. (06/23/2021) (supremecourt.gov).

So, essentially, here are the important facts. Brandi was a student at a Pennsylvania High School who at the end of her freshman year tried out for varsity cheerleading and right fielder on a private (not school) team. She was only offered a spot on the J.V. cheerleading team and she did not get the softball position she wanted. Let's agree, she wasn't a good sport about it. She went with a friend to a store and put on her own phone two snapchats (I heard of snapchat, but of course have no idea what it is - but now I know it's social media that lets you put up pictures and videos that fade away after some time). Anyone on her friend's group could see them for 24 hours. One photo showed her and her friend raising their middle fingers (you know what that means, right?) and the caption read "Fuck school fuck softball fuck cheer fuck everything." I'm violating my own no cursing policy because the Supreme Court used those words. The other photo had no picture but basically a complaint that someone got on the varsity team who wasn't a freshman and she had been was told that's why she couldn't be on it. Wah wah wah. Oh, and an upside down smiley face, which I personally feel are creepy, but no one else in the world agrees with me and it's not the issue here. The photograph is.

So, even adults never seem to learn - if you put things online, other people can see them. Some of her "friends" were on the team. One of her group took pictures of it and showed her mom, a coach on the team. See where this is going? Some of the cheerleaders were upset and spoke to coaches about it. Two of the coaches taught an algebra class and apparently there was a discussion about it. 

Brandi apologized for what she had done, after being suspended from cheerleading for a year, but it did not help. She and her parents sued, claiming her first amendment rights were violated (that is, she could say what she wanted).  

Let me say, I don't think what Brandi did was horrible. She was about 14, I'm guessing, and though it is impolite to say that, 14 year olds are often pretty stupid (also, it turns out, people of every age group - BECAUSE THEY NEVER SEEM TO LEARN NOT TO POST! - I'm sure including me). Even if a grown up did it, it isn't horrible. But, a grown up might get fired over it (and a lot less). 

The trial court (in federal court, called District Court) undid the suspension, gave Brandi a little bit of money ("nominal damages") and attorney's fees, which could be a lot of money. I don't know how much they got. 

So, basically, we all have some first amendment speech rights. It's not absolute. We all should know that. You know, you can't scream "fire" in a crowded theatre, can't use fighting words to someone's face, that kind of thing. And, some people have more rights than others depending on the circumstances. You can't always say what you want at work or . . . in school. This is not the first case like this, but, usually, the school wins. Here, the middle court (Court of Appeals) agreed with the trial court and the Supreme Court agreed to. Here's why.

Public schools can regulate some speech on school premises because they have this mission to educate the children and also a duty to protect them from injury or the like while they have them. They can regulate speech on-campus if it "materially disrupts class work or involves substantial disorder or invasion of the rights of others." Tinker v. Des Moines Independent Community School Dist. (1969). The school stands "in loco parentis" - that is, in the place of the parents. 

You might think, that's fine while they are in school, but not when they are out of school. Actually, they can regulate some "off-campus" speech by students, according to Tinker. 

Usually, it's dangerous or disruptive things like "serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning les[1sons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices."  So, if I threaten you (imagine we are kids) out of school, the school might suspend me because it might result in violence. Or, if I write your paper outside of school, maybe I'll get in trouble for that. 

But, in general, the courts are more skeptical of the regulations when it's off-campus speech. For one thing, because we pretend that schools are the "nurseries of  democracy" we want to protect their even unpopular speech.

The Supreme court decided because the photo was sent outside of school hours, off of school grounds, did not identify or target any particular person with vulgar/abusive language, sent the photo through her own smart phone to her "friends," and it really didn't disrupt school for more than a few minutes (the algebra class) and, the court believes it wouldn't disrupt unity on the team (really? - does anyone on the court know any teenage girls?), it wasn't sufficient to trigger the school's right to punish her.  

That's it in a nutshell, and though I was much shorter than the court, I didn't leave much out.

Usually, I am very pro-first amendment, believe we should have it as much as possible, but I disagreed here with 8 of the judges. The only one who dissented (voted against) was Judge Thomas. More and more I find in a case I agree with either him or Alito, but not always. Justice Thomas and I also agree with the Biden Administration, which is only ironic in that both us probably disagree a lot with it. 

Just to give you the skinny on Thomas' opinion - he felt the court ignored the history and cases which gave schools more authority than they suggested off campus when the speech affected the school environment (I'm paraphrasing). He reminds them of a Vermont case, as an example, where a kid at home said in front of a teacher and some other students that the teacher was "old" (apparently said disrespectfully. The principle of the case was that if that the speech had “a direct and immediate tendency to injure the school, to sub[1vert the master’s authority, and to beget disorder and insubordination” and therefore found the kid could be disciplined. It would not have been allowed if the speech was “in no ways connected with or affecting the school” or had “merely a remote and indirect tendency to injure.” 

Although I think the case he cited had too little of an insult ("old") for me to conclude it would have usurped the teacher's authority, it was at least borderline. Last of all, Thomas points out that what off-campus means now isn't what it used to mean. 

So, this is what I think. The first amendment free speech rights are super important. I don't want the content of anyone's speech to go unsaid even if I hate it. I want Brandi to always be able to say her opinion. But, I do think the school should be able to discipline kids' speech in some areas because they do have to be able to run a school, and frankly, we have dropped the ball so much in education that we can't afford to let discipline in school get worse than it is. 

Let's be honest. Yes, her opinion obviously is that the school, cheerleaders, etc., sucks. Okay. But, using the phrase "Fuck school fuck softball fuck cheer fuck everything" is more than just an opinion just like saying, I think you should die, is more than an opinion. It's a well known expression of disgust, hate or contempt. And people take it very personally. Don't tell me that racial slurs can be out of bounds if "fuck" isn't, because we all know it pisses people off something fierce. Unless someone knows they are joking (like if we say it to an acquaintance where the context is obvious), saying "Fuck X," is always personal, negative and meant to gather attention. Just because she has an opinion doesn't mean she gets any special privilege than someone who just said it without an opinion attached.  

Why shouldn't the cheerleading coaches (who did discuss it with the administration first) get to say, we don't want her on the team this year, and reasonably so. If you found out some Brandi-like kid said "Fuck you," about you and say, your swimming pool, would you want your kid to invite her over to go swimming? Of course, school is different than our private lives, but the teachers and coaches are people, and so are the kids on the team who were upset. And was it really that big of a punishment. No. It was mild. She wasn't suspended from school. She didn't even get attention. It pretty much was, okay, you hate us, don't be with us - and for just the one year. Limited in time, limited in scope. As I said, Brandi didn't do anything horrible to begin with. But, obviously, it would tend to upset people and make being on a team difficult.  Her opinion is her own (I had no problem with the other post) to have. Even if she is in school, she should not be deprived of stating an opinion (short of ones in school that might put people in fear - like screaming "fire" in a crowded lunchroom). 

Now, about that off-campus thing. What does it matter anymore. Who has more power, by a factor of a million perhaps. Me, going on campus and whispering something in someone's ear, or, someone sitting at home on facebook with a thousand (or 50,000 or a million) "friends." Even the court seems to recognize that the impact of the behavior has to count even when off-campus. Social media is so powerful because it has become the actual village commons. A student who makes mischief in class is comparing a pea-shooter to a howitzer. Social media can reach so many people, and the idea that it was just her friends doesn't make any difference when some of them were cheerleaders themselves, or the daughter of a coach, or even because any of them can print it out or take a picture of it. 

It's not like I'm saying something new either. We've had things long-arm jurisdiction for example for the longest time so that a person can sue in a state where they are injured when it was caused by someone who did something in another state and it was foreseeable that whatever it was would cause the problem elsewhere. Just as an example, if I sell a product, say a car, in Florida that is defective and it blows up in New York, I can be sued in NY. Technology often lets us stretch our natural capacities. When they wrote the constitution there were no telephones. Now, I can make a threat in California on the line with you in Maine. Or if I put in online, everyone can know. Something like "Fuck school . . ." is exactly the type of thing that is likely to go flying around school every bit as much as when Esther challenges Jane to a fight in the playground after school with two friends present. Soon everyone knows. Nowadays, the challenge would probably be made on social media. Think about it. If it counts against someone when they make a threat online and are not on school grounds - they feel an online off-campus threat has an effect on people on-campus (even if not there at the moment). Why would it be any different if it's a curse out. It can reach them the same way.

I probably would have a different opinion if she was suspended from school for cursing it out. But, school is a necessity, required by law, and important for her too. And I would take into consideration that she wasn't shouting it at the people in person. But, this is cheerleading, and that is not required, it is not the law, and it is a privilege to be on a team. Very different, and no one took that into consideration, or that her presence would effect the coaches and other cheerleaders. We have a problem in this country in making the bullies the good guys and the victims the bad guys. This is one example. That doesn't mean she shouldn't have free speech, but this has nothing to do with that. It has to do with cursing out your coach and team.

So, maybe Brandi is an awesome kid and this is the one thing she did wrong in her life (and once more, it wasn't that terrible). That's something the school and her teachers might take into consideration. But, I think her parents did the wrong thing here. They should have said, Brandi, time you learned the danger of social media, and time you learned your actions have consequences. Don't go putting "Fuck" anyone on social media if you don't want them to read it. I wish everyone would learn that lesson. Again, this was a mild punishment. People lose their jobs and don't get to cry to a court over much smaller things, including just having an opinion. 

The shame is, because it's a civil rights case, the school has to pay Brandi's parents legal fees. That just isn't right either, in my book, because if anything, at the very least - this was a close call and she was obnoxious. The school wasn't out to stifle her rights. There was no racism or anti-Brandi feeling. She cursed the school  and team out because she is a sore loser and they did what any responsible parent or school standing in the parents' shoes would do - they mildly punished her so she'd learn a lesson. The court did not have to grant attorney's fees. Schools are already terrified of litigation, avoid normal activities to avoid it. This might have a terrible impact on schools (that are already cowardly and fear litigation), make them even more afraid to discipline children even if it's on-campus or more brazenly online. Organizations and their lawyers bend over backwards to avoid trouble. The court should not grant those fees. 

Last point. The snapchat happened in 2017. She was 14, I guess now 18. 4 years is not a long time by Supreme Court standards (a case they decided a few days ago started 16 years ago). I wonder how Brandi's life at school turned out and if she ever went back on the team. Just curious. Maybe it's on social media, but I'm not.