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Clarence Thomas Snapchatting ‘F*** The First Amendment’ To All His Friends

(Photo by Aude Guerrucci-Pool/Getty Images)

It seems like only yesterday that the conservative cause célèbre was free speech on campus. All those woke physics professors teaching critical race theory were cancel culturing students just for using slurs or suggesting that their classmates don’t deserve basic human rights. That was the big crisis according to right-wing media.

But Justice Thomas apparently didn’t get the memo.

In Mahanoy Area School District v. Levy, the case of a cheerleader writing “F*** school” and “F*** cheer” in a Snapchat to her friends and subsequently getting punished by the school, the Court ruled 8-1 that while there may be some off-campus speech that schools are allowed to police, it certainly doesn’t extend to complaining about the school. During oral argument, the justices seemed scared about writing a hard-and-fast rule so they… didn’t. In true Potter Stewart fashion, the Court acknowledged that the breadth of a school’s authority in this area is murky, but they know what punishable off-campus speech is when they see it, and this ain’t it.

But Justice Thomas isn’t having it.

While the majority entirely ignores the relevant history, I would begin the assessment of the scope of free-speech rights incorporated against the States by looking to “what ‘ordinary citizens’ at the time of [the Fourteenth Amendment’s] ratification would have understood” the right to encompass.

While “girls didn’t have rights then” might be an accurate read of the original public meaning, it’s a bridge too far even for Thomas so he goes to a much darker place:

Cases and treatises from that era reveal that public schools retained substantial authority to discipline students.

The concept of compulsory public education was foreign to most of the country at that time, but Thomas is going to rush past that into, “In THOSE days, schools could beat children if they wanted.” Because the widespread acceptance of child abuse should definitely be the foundation of good law.

The rock upon which he builds his case is Lander v. Seaver, a Vermont Supreme Court case from 1859 where a teacher whipped a student for making fun of him in front of other students. Thomas doesn’t get into the specific punishment at issue there because, as always, “original” is an arbitrary line drawn exactly where it’s convenient to the jurist. In this case, Thomas is drawing it at “students had no right to mock the school” and not at “schools were allowed to brutalize children over a teacher’s fragile ego” as the latter might cause considerable skepticism about the former.

Of course the majority isn’t actually departing much from the logic that schools have the authority to regulate off-campus issues that impact their core mission. If a student’s out-of-school bullying activity is undermining the school’s ability to educate another student, the majority says it’s within the school’s purview. It’s just that today, no one is actually stupid enough to think that grumbling about a teacher is preventing anyone from learning chemistry.

Second, the majority fails to consider whether schools often will have more authority, not less, to discipline students who transmit speech through social media. Because off-campus speech made through social media can be received on campus (and can spread rapidly to countless people), it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation.

Wha? Where’s this level of considered judgment about the march of technology when we’re evaluating automatic weapons regulations? It’s a completely baseless complaint here since the student Snapchatted this to a handful of friends and not the entire universe.

Here, it makes sense to treat B. L.’s speech as off-campus speech. There is little evidence that B. L.’s speech was received on campus. The cheerleading coach, in fact, did not view B. L.’s speech. She viewed a copy of that speech (a screenshot) created by another student. Ante, at 2. But, the majority mentions none of this. It simply, and uncritically, assumes that B. L.’s speech was off campus. Because it creates a test untethered from history, it bypasses this relevant inquiry.

This paragraph deserves some kind of award. “I agree that this is off-campus, there’s no evidence it was on-campus, but why would the majority assume it was off-campus?” He’s trying to argue that the majority’s test doesn’t make a distinction based on location and he can prove that because they didn’t devote column space to hashing out whether or not the speech was off-campus. Except the majority holding does turn on the location of the speech… and this argument is gibberish.

Justice Alito, for his part, tries to bail out his buddy Clarence with a concurrence geared to twist the majority holding into an admonition against public schools punishing students for off-campus behavior under almost every circumstance (and explicitly carving out college students… because that’s where the real red meat political tripe is found). It’s not buried too deep between the lines that he’s trading a disgruntled cheerleader for protecting the middle school FedSoc chapter from getting in trouble for hurling epithets at the kid who dresses different.

… public school students, like all other Americans, have the right to express “unpopular” ideas on public issues, even when those ideas are expressed in language that some find “‘inappropriate’” or “‘hurtful’”; public schools have the duty to teach students that freedom of speech, including unpopular speech, is essential to our form of self-government….

The majority certainly cites cases using those words, but Alito’s yanking them out here to make clear that he’s joining this opinion to leave some murkiness for students hoping to denigrate fellow students.

Perhaps the most difficult category involves criticism or hurtful remarks about other students. Bullying and severe harassment are serious (and age-old) problems, but these concepts are not easy to define with the precision required for a regulation of speech. See, e.g., Saxe v. State College Area School Dist., 240 F. 3d 200, 206–207 (CA3 2001).

Tut tut… boys will be boys.

Alas, Alito failed to sway Thomas over to his side with this. Instead, poor Thomas is all by himself again, cut from the varsity Supreme Court majority. If he’s looking to lash out — outside of Supreme Court hours, of course — he’s welcome to Snapchat us.


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.