Battle lines are being redrawn in a First Amendment case on the Supreme Court's docket. What started as a tussle between teenagers and adults is now a power struggle between parents and government.
Twenty-three state attorneys general and one deputy attorney general filed a friend-of-the-court brief in Mahanoy Area School District v. B.L., a lawsuit that could determine when — or whether — public schools can punish students for off-campus speech. The coalition contends limiting the scope of schools' authority could undermine state cyberbullying laws.
Prosecutors are playing Chicken Little, and what sounds like a sky-is-falling claim is only true in the narrowest sense. The Mahanoy case doesn't involve cyberbullying, and its outcome won't affect criminal statutes that address online stalking and harassment. The laws at issue are administrative codes directing schools to investigate students' bullying complaints.
North Carolina Attorney General Josh Stein knows this all too well. He's one of the two dozen signatories of the high court brief, and his state had tried to make cyberbullying a class 2 misdemeanor. But the North Carolina Supreme Court struck down that law in 2016, ruling that it violated defendants' free speech rights.
"Bullying" is a buzzword without a precise legal definition. It's understood to include illegal behavior like assault, threats and harassment, but it also encompasses taunts and putdowns. While true threats don't enjoy constitutional protection, criticism can't be criminalized.
Many states have laws authorizing schools to investigate cyberbullying when it causes a stir in the classroom, even if mean-spirited messages were posted to social media outside of school. That authority relies on the Supreme Court's ruling in Tinker v. Des Moines, which held that public schools can limit student speech when it would create a "substantial disruption."
Tinker initially expanded, rather than limited, minors' First Amendment rights, as justices ruled that the Des Moines Independent Community School District couldn't discipline students for wearing black armbands to protest the Vietnam War. The case involved a rule that only applied on school grounds.
In the internet age, judges began applying the Tinker standard to off-campus speech that causes disruption at school. After the U.S. 3rd Circuit Court of Appeals rejected that premise in the Mahanoy case, the Supreme Court agreed to review the decision. A broad ruling could set an entirely new standard for schools' ability to wade into extracurricular speech.
Mahanoy Area High School in Pennsylvania kicked student B.L. off the junior varsity cheerleading team after she posted a Snapchat selfie holding up a middle finger with a vulgar caption. Other students saw the picture, and one alerted a cheerleading coach.
B.L. is Brandi Levy, who has publicly identified herself in media interviews about the case. Brandi's dad, Larry Levy, supported his daughter's court challenges to assert his rights as a parent.
"I wasn't proud of her expression," Levy told CNN's Michael Smerconish in a January segment. "However, I felt that in that situation, the school overstepped their boundaries, and it was my decision to punish her, at which time I did take the appropriate steps that I felt necessary for what she had done."
Of the 24 who petitioned the high court to let schools police student speech on social media, all but one are Democrats. The left appears more receptive to school intervention in family matters, while the right seems broadly skeptical of government agencies reaching into private homes.
After Stein joined the amicus brief and issued a press release tying the case to cyberbullying concerns, the conservative North Carolina Values Coalition cautioned that giving schools too much latitude could undermine parents' authority.
"It would be frightening to give educators unrestricted access to extend their regulatory reach to monitor or even supersede parental responsibilities to monitor off-campus speech, social messages and text communications of their children," wrote Jim Quick, the coalition's public affairs director.
Coordination between schools and families is the only practical way to resolve thorny issues over teenagers' social media postings. A phone call from the principal still carries weight in most households.
Defer to parents on discipline. A teacher's demand to remove a Facebook post might constitute government censorship, but even the highest court in the land can't overturn a grounding.
Corey Friedman is an opinion journalist who explores solutions to political conflicts from an independent perspective. Follow him on Twitter @coreywrites. To find out more about Corey Friedman and read features by other Creators writers and cartoonists, visit the Creators webpage at www.creators.com.
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