The Supreme Court is scheduled to hear a cut-and-dry First Amendment case on April 28th, but the erratic Department of Justice has thrown its hat into the ring in hopes of complicating the matter.
In B.L. v. Mahanoy Area School District, a 14-year-old girl was punished by her administrators at her school for writing "Fuck School fuck softball fuck cheer fuck everything." on Snapchat after failing to make her varsity cheer team. She was subsequently disciplined by her junior varsity squad after a tattle tale showed the message to her coach.
While established legal precedents allow public schools to police what students say during school hours, landmark cases like Tinker v. Des Moines Independent Community School District (1969) defend the right to free speech off campus.
Because the case only deals with expressions of obscene language, the left-wing interest group ACLU has decided to represent the plaintiff in Mahoney.
Yet, in a bizarre display of flagrant disrespect for the First Amendment, the US government -- through the DoJ -- has filed what appears to be the sole amicus brief arguing in favor of unqualified powers for school administrators to reprimand students for what they say among themselves or to the public outside of school.
The debate appears on the surface to be an intra-liberal disagreement. While there doesn't appear to be a political factor in the specific instance being debated, a number of Jewish organizations have weighed in with their own demands of the court due to the ramifications of a ruling.
The ACLU, in advocating for the plaintiff, believes that failing to update Tinker in the social media age in a free speech friendly way could in theory prevent students from engaging in left-wing activism that educators perceive as disrupting or distracting from learning during school hours.
The DoJ, on the other hand, seems to be playing "bad cop" with its brief, calling for granting schools full leeway.
The point of this dialectic may be to guide SCOTUS' opinion towards a worse-of-both-worlds synthesis of the opposing arguments, which is embodied in a March 31st filing by the Anti-Defamation League and a slew of affiliated gay and Jewish groups.
According to the ADL's recommendations, schools should not have the right to punish kids for expressing vulgarity, but should retain the authority to suppress them when they engage in off-campus "bullying, harassment, and threats" using the open-ended and subjective boundaries of: "whether the speech was reasonably likely to instill fear in other students for their physical, mental, or emotional safety."
While the argument doesn't necessarily outline too many specific qualifications, under the ADL's own rubric, political criticisms of Israel, Jewish overrepresentation, transsexuals, immigration, etc all constitute threatening speech. The brief only goes on to articulate what it considers to be speech that administrators should not have a right to control, " Some schools may consider “disruptive” political speech, coming-out speech, or speech supportive of historically marginalized groups questioning the status quo."
If SCOTUS rules according to the standards the ADL and its collaborators have set, the binary legal question of whether schools can control off- campus speech or not will go unresolved due to their calls for "context- dependent inquiry" -- as in, administrators still get to define whether protected speech impedes the "emotional safety" of students.
In Mahoney, the court agreeing to using this contradictory standard could lead to the school suspending the plaintiff from athletic activities again under the guise that her statements emotionally triggered her cheerleading team.
Many First Amendment advocates are watching this case closely, but the fact that bad faith actors who believe right-wing speech is terrorism -- the ACLU, the ADL and the Department of Justice -- are occupying the left, right and center of the argument risks turning the ruling into a new standard that institutionalizes obscenity and anti-white hate while suppressing the forces of civility and white counter-argument.