The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[1.] Alice is burning an American flag in a public place. Some people threaten to attack her if she doesn't stop. A police officer therefore orders her to stop: "It's my job to preserve the peace, and prevent fights and other disruptions. Your symbolic expression is causing such disruption, so it's no longer protected by the First Amendment."
Unconstitutional, the Court would say (at least unless her speech consists of personally insulting and individually targeted "fighting words," or is intended to and likely to produce imminent violence): That would be an impermissible "heckler's veto." In the words of the Court in Forsyth County v. Nationalist Movement (1992),
Speech cannot be financially burdened, … punished[,] or banned simply because it might offend a hostile mob.
Nor does it matter that the police officer (unlike the hostile mob) may be sincerely concerned about the harmful consequences of the speech, rather than motivated by ideological opposition to the speech. The government must bear the cost—which may be a substantial cost—of allowing the speech, protecting the speaker, and (if necessary) prosecuting anyone who attacks or threatens to attack the speaker.
[2.] But what if Bob is corresponding cryptographically with Alice is wearing (not burning) an American flag T-shirt in a public school, and some people threaten to attack him if he doesn't stop (because he's wearing the flag on Cinco de Mayo, and some Mexican-American students view such display of the American flag to be racist and insulting)? Under Tinker v. Des Moines Indep. School. Dist. (1969), the Court's leading K-12 student speech case,
[C]onduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.
We recognize that, in certain contexts, limiting speech because of reactions to the speech may give rise to concerns about a "heckler's veto." But the language of Tinker and the school setting guides us here.
Where speech "for any reason … materially disrupts classwork or involves substantial disorder or invasion of the rights of others," school officials may limit the speech. To require school officials to precisely identify the source of a violent threat before taking readily-available steps to quell the threat would burden officials' ability to protect the students in their charge—a particularly salient concern in an era of rampant school violence, much of it involving guns, other weapons, or threats on the internet—and run counter to the longstanding directive that there is a distinction between "threats or acts of violence on school premises" and speech that engenders no "substantial disruption of or material interference with school activities."
In the school context, the crucial distinction is the nature of the speech, not the source of it. The cases do not distinguish between "substantial disruption" caused by the speaker and "substantial disruption" caused by the reactions of onlookers or a combination of circumstances. See, e.g., Taylor v. Roswell Indep. Sch. Dist. (10th Cir. 2013) (observing that "Plaintiffs note that most disruptions occurred only because of wrongful behavior of third parties and that no Plaintiffs participated in these activities…. This argument might be effective outside the school context, but it ignores the `special characteristics of the school environment,'" and that the court "ha[d] not found case law holding that school officials' ability to limit disruptive expression depends on the blameworthiness of the speaker. To the contrary, the Tinker rule is guided by a school's need to protect its learning environment and its students, and courts generally inquire only whether the potential for substantial disruption is genuine."); Zamecnik v. Indian Prairie School Dist. No. 204 (7th Cir. 2011) (looking to the reactions of onlookers to determine whether the speech could be regulated); Holloman ex rel. Holloman v. Harland (11th Cir. 2004) (looking to the reactions of onlookers to determine whether a student's expression "cause[d] (or [was] likely to cause) a material and substantial disruption"); [citing also various Confederate flag display cases].
[3.] Now let's move to Mahanoy Area School Dist. v. B.L., which was just argued today before the Supreme Court. The facts of the case (a disgruntled cheerleader suspended for a year from the team because she Snapchatted a photo of herself showing the middle finger, with the caption "Fuck school fuck softball fuck cheer fuck everything") are far removed from flags or big-picture political advocacy. But the question presented before the Court is much broader than just those facts:
Whether Tinker, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.
You see now why the heckler's veto question is so important: If the answer to this question is "yes"—if a school can say, "we're punishing your off-campus speech because it causes on-campus disruption" and if that disruption can flow from students being offended enough by the speech—then Bob/Dariano could be punished for wearing an American flag T-shirt on Cinco de Mayo anywhere in town, or in an Internet post. All it would take is for some people to say that they're super-offended and will punch Bob on May 6, when he comes back to school (or that they will otherwise disrupt school), and the school could then tell Bob and his buddies that they had best comply with the heckler's demands as to all their speech, 24/7.
And the list could go on: A student could be punished for displaying a Confederate flag anywhere at any time (assuming this speech could be seen at school, which is very likely for any online speech or offline speech that could be recorded by someone). A student could be punished for a speech at a rally or at a church that sufficiently offends classmates on any basis (and especially race, sexual orientation, religion, etc.). A student could be punished for an op-ed in the local newspaper that expresses controversial political views, since of course that op-ed could be read at school and cause disruption at school.
The outcome in Dariano, I think, is very bad (though consistent with the reasoning of many lower court cases interpreting Tinker). But that result, coupled with a rule holding Tinker applicable to off-campus speech, would be utterly intolerable.
[4.] And perhaps because of this, in today's oral argument, Lisa Blatt—the ace Supreme Court litigator who is representing the school—argued (a) for the Tinker disruption test applying outside school (as her client's position required), but (b) for Tinker to be read, in school and out, in a speech-protective way that largely rejects the heckler's veto:
[S]chools cannot target political and religious speech…. [T]his Court can clarify Tinker's reach both on and off campus. It is irrelevant that critical or unpopular speech is the but-for cause of substantial disruption. The speech itself must be culpable. It must inherently compromise school functions, like organizing lockouts. Or the speech must objectively interfere with the rights of others, like severe bullying.
But, if listeners riot because they find speech offensive, schools should punish the rioters, not the speaker. In other words, the hecklers don't get the veto. Schools' special needs are limited to teaching kids how to think, not what to think….
JUSTICE ALITO: … [L]et me give you an example …. [S]ince Tinker occurred back during the Vietnam War, it … will relate to that. So, during the war, a student says, war is immoral, American soldiers are baby killers, I hope there are a lot of casualties so that people will rise up. Even if that would cause a disruption in the school, I understand you to say the school couldn't do anything about it. Is that right?
MS. BLATT: That's correct, that would be a heckler's veto, no can do.
[Later, responding to Justice Kagan.]
MS. BLATT: … [T]he leading case on this is K.D. versus Fillmore. It is … a brilliant case where the T-shirt was "Abortion is homicide" T-shirt. Kids having abortions were upset. They said it was false because abortion is actually legal. And the school said: Get over it…. [H]e is passively wearing the shirt. He's not terrorizing kids with it. He's going about his day. Leave him alone.
And that case is cited as the gospel case for heckler's veto….
Malcolm Stewart, arguing for the federal government as amicus in support of the school as to the result, seemed to largely agree:
[E]ven in cases where we are applying Tinker, you should not just look to … the likelihood that disruption will result…. [Y]ou should employ concepts like proximate cause to determine if a disruption does result, can that properly be attributed to the speaker or is it the fault … of the listener?
The proximate cause approach is a bit slippery, because, when Bob's actions foreseeably lead Charlie to commit a tort or crime against Donna, Bob's actions are often treated as the "proximate cause" of the harm, despite Charlie's misconduct. The reactions of a heckler often will be foreseeable to the speaker (even if the speaker doesn't actually want those reactions to happen).
But in context, it appears that the government, like the school district, is trying to urge a narrow reading of Tinker (speech can't be punished because of heckler's potential misconduct) in order to encourage the Court to adopt a broader zone of applicability for Tinker (speech can be punished under Tinker even if it's off-campus).
Conversely, Georgetown law professor David Cole (national legal director of the ACLU), arguing for the student, and for the argument that Tinker doesn't apply off-campus, is stressing that courts have read Tinker as allowing a broad range of speech restrictions:
Within the context of school supervision, whether it's an after-school program, whether it's a class trip, whether it's in the classroom, Tinker applies, and Tinker does mean that the school can shut down a speaker if that speaker['s] … words are going to lead to disruption, period. Whether it's political, whether it's religious, … that's the state of the law … in the cases below. I don't know where the other side gets this exception for political or religious speech. It just doesn't exist based on the case law….
In school, you can apply Tinker. [But o]ut of school, you can't. What does that mean? It means you can't punish out-of-school speech because listeners in school might be disrupted by the message.
Lisa Blatt picked up on that, unsurprisingly, in the rebuttal:
There's some sort of twilight zone going on when the head of the ACLU says that schools allow hecklers' veto, punishment for whistleblowing, any kind of reporting, any kind of criticism, all that matters is someone is offended. And you have the Biden administration and the school districts saying that's not true. That's not what Tinker allows…. [T]he Saxe opinion [a Third Circuit opinion by then-Judge Alito], the Morse concurrence [by Justice Alito], … have left … clear lines for schools and that hecklers' vetoes are not allowed.
And your choice is this: If … you could choose to either tighten Tinker or you can say, well, we're going to assume Tinker is out of control on campus, but we will leave open season on schools and complete chaos as to what their test allows.
Now these are all lawyers at the top of their games, rightly making the arguments aimed at winning this particular case on behalf of their clients. And all of their positions are quite plausible. There is indeed ample Supreme Court authority condemning heckler's vetoes that the Court could impose on Tinker and K-12 school cases. There is also indeed ample lower court authority accepting heckler's vetoes, which David Cole of the ACLU correctly noted.
But the arguments highlight, I think, just how central the heckler's veto question—can student speech be punished as disruptive because some people find its viewpoint offensive and threaten to attack the speakers or disrupt classes?—is to the off-campus/on-campus question (does the Tinker lower level of protection for speech apply to school outside school and outside school-operated activities?). And I hope that when the case is handed down (which ought to be by late June) the Court will tell us something about the heckler's veto question.
Disclosure: My colleague Stuart Banner and I filed an amicus brief in the case, signed by Prof. Jane Bambauer, Prof. Ashutosh Bhagwat, and me. Our argument was similar to the ACLU's, which is that Tinker has been read as allowing a good deal of speech suppression at school, and thus shouldn't be extended outside school—but, again, much of that argument turns on lower courts' broadly speech-restrictive (and pro-heckler's-veto) view of the Tinker test, which the Court could overrule if it so chooses.