Life Legal filed a “friend of the court” (amicus) brief in a student speech case today. The case involves a Pennsylvania high school student who voiced negative opinions about her cheerleading coach on Snapchat, a social media platform. She posted from a shopping mall on a weekend and the message disappeared 24 hours later, as do most Snapchat messages.
Even though the message was not posted from the school or even during school hours, the school penalized the student by cutting her from the cheerleading squad. The student’s parents filed a lawsuit against the school district and won in the district court and at the Third Circuit Court of Appeals. Both courts held that schools cannot discipline students for off-campus speech that creates a disturbance – and, significantly, both courts agreed that the minor’s speech here did not in fact cause a substantial disturbance.
The school district appealed to the U.S. Supreme Court, citing a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, which held that schools can regulated on campus speech that is substantially disruptive. The school district argued that Tinker also permits schools to regulate off campus speech. The Supreme Court will hear the case on April 28, 2021.
So why is Life Legal involved in a cheerleader’s lawsuit?
We are concerned that this case, which asks the Court to deal with the nebulous concept of speech causing a “disruption” of school activities, could have a profound impact on the off-campus speech and activities of pro-lifers, whether students or not. What would stop a school administrator from prohibiting a student from engaging in pro-life activism outside a local abortion clinic? Or non-students on the sidewalk outside the high school distributing pro-life literature, if those activities upset some students, or, as is more common, some school administrators?
We often represent young people and adults who are harassed and threatened for their pro-life speech. As noted in our brief, “Life Legal’s clients frequently encounter hostile school administrators who eagerly brand their speech ‘disruptive’ precisely because students are interested, will pause to take a leaflet, and may continue their discussions about the content later at school.”
We are urging the Court to decline to decide this case and wait to address these difficult issues in a case where First Amendment-protected speech actually caused a disruption. Such a case could arise in a few months, or years, or never. Any decision that is not tailored specifically to the facts at hand could have devastating implications for pro-life speech.