The Supreme Court recently heard oral arguments in two important First Amendment cases, one involving student speech and the other involving freedom of association. The outcome of these cases could profoundly affect the ways in which Americans express themselves.
Student Social Media Posts
Mahanoy School District v. B.L. involves a claim by a teenage student that the school district violated her First Amendment rights when it punished her for an angry message that she sent via Snap Chat after being cut from school athletic teams.
The message, which was sent on a Saturday, showed the student and her friend giving the middle finger to the camera with the text “F*** school f*** softball f*** cheer f*** everything.”
The case raises complicated questions about whether public schools can punish students for things they post on social media and has broad implications for student speech about everything from the quality of school lunches to politics and social justice.
Independent Women’s Law Center (IWLC) filed an amicus brief with the Court in support of the student. IWLC argues that allowing public schools to punish students for off-campus, online speech that offends others will have a chilling effect on student expression.
The school district claims it seeks only the power to punish off-campus speech that “targets” or “disrupts” the school. But, at oral argument last week, some of the justices seemed skeptical.
Justice Stephen Breyer told attorneys for the parties that he didn’t see evidence that this particular snap caused “material and substantial disruption” at school. If the school can punish a student for this type of snap, Breyer suggested, “every school in the country would be doing nothing but punishing.”
Justice Elena Kagan expressed concern that the teen’s “snap” seemed “pretty generic.” But Kagan (along with Justice Sonia Sotomayor) also expressed concern that a ruling for the student would prevent schools from disciplining genuine problems, such as cyberbullying and harassment.
The Right to Donate Anonymously
The Court also heard arguments in a case involving the freedom of association.
Americans for Prosperity Foundation v. Becerra involves a challenge to California’s policy of requiring all nonprofit organizations that raise money in the state to turn over the names and addresses of donors.
In the landmark 1958 case of NAACP v. Alabama, the Supreme Court unanimously held that the state may not compel non-profits to produce their membership lists, as disclosure could expose members “to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility” that could chill membership in the organization. The AFP case involves a similar state request for donor lists.
IWLC weighed in on the side of the nonprofits, asking the Court to protect freedom of association. IWLC’s brief makes the case that California’s current disclosure regime forces those who wish to anonymously donate to any charity registered in the state to face a difficult choice: stop contributing to the charity or risk exposure, a choice that will undoubtedly have a chilling effect on both female donors and on donations to women’s causes.
At oral argument, Justices Samuel Alito, Amy Coney Barrett, Brett Kavanaugh, and Clarence Thomas seemed particularly receptive to claims by the nonprofits that compulsory disclosure of donor information will chill speech, particularly in the era of cancel culture.
“In this era, there seems to be quite a bit of loose accusations about organizations… for example… accused of being a white supremecist organization, or racist, or homophobic… and as a result become quite controversial,” Thomas noted.
Although Justice Sotomayor seemed sympathetic to state’s argument that mandatory disclosure helps the government identify potential fraud, at least one Court watcher believes that California will not prevail. While listening to the arguments, Professor Rick Hasen of UC-Irvine tweeted: