The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I had high hopes for Mahanoy Area School District v. B.L. This case could have brought some clarity to an important issue: what are the free speech rights of students who are off campus. Alas, we did not get clarity. Justice Breyer's opinion is almost incomprehensible. It lists countless factors and considerations, none of which are dispositive, but any of which can be relevant. Here is the closest we get to a summary:
Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway, we can, as a general matter, say little more than this: Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker's off-campus location will make the critical difference. This case can, however, provide one example.
Principals and teachers will struggle to glean any clear guidance from this case. Lower courts can reach just about any ruling, and claim fidelity to Justice Breyer's decision. I agree with Justice Thomas's summary: "the majority simply posits three vague considerations and reaches an outcome." He added: "the Court's foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the Court's opinion today means."
Why would Chief Justice Roberts let Justice Breyer write such an incoherent opinion? Perhaps the answer is that there was no unanimity. Though eight Justices agreed with the student, they did not agree on much more. Perhaps, the Justices could not muster a majority on any bright line rule. In response, the Chief gave Justice Breyer the green light to do what he does: ask questions that cannot be answered.
I had hoped that the Chief would let Justice Kagan write the majority opinion. At least that decision would be an enjoyable read. Alas, we are stuck with twenty-pages of queries. To paraphrase young Brandi Levin, "Fuck balancing tests."
One final note. I think Justice Thomas cast doubt on West Virginia v. Barnette.
The cases on which Tinker chiefly relied concerned the rights of parents and private schools, not students. 551 U. S., at 420, n. 8. Of the 11 cases the Court cited, only one—West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943)—was on point. But, like Tinker, Barnette failed to mention the historical doctrine undergirding school authority. Not until decades later did the Court even hint at this doctrine, and, then, only as an aside.
Under Justice Thomas's theory, would students have Free Speech or Free Exercise rights to object to saluting the flag? This aside was not on my SCOTUS bingo card.