Category: reason

In year’s past, I wrote April Fools’ posts. Some were more convincing than others. However, during the Trump presidency, I stopped. Parody blurred with reality. And I worried that people may not realize I was joking.

But with Trump out of office, is it safe to joke again? I considered writing one for this year: House Republicans were drafting articles of impeachment against former President Obama. Believe it? Plausible.

Today, I noticed that at least two professors wrote clever April Fools’ jokes.

Mike Dorf wrote a post titled Testiness at the First Annual Conference on Originalismism.

Yesterday I “attended” and moderated a panel at a fascinating Zoom-based conference hosted by the three law schools with the closest connection to originalism in constitutional interpretation: Georgetown Law Center, the Antonin Scalia Law School at George Mason University, and the University of San Diego School of Law. Because the focus of the conference was the study of originalism rather than originalism itself, the conference was titled “Launching Originalismism.”As co-conveners Professors Randy Barnett, Michael Rappaport, and Ilya Somin wrote on the conference homepage:

For many years, constitutional scholars debated whether to give dispositive weight to the Constitution’s original meaning. That debate is over. Originalism won. The question has now shifted to how to do so, which is a question about the boundaries of originalism. This first-of-its-kind conference brings together originalist scholars of all stripes, as well as a few stubborn holdouts, to begin the study of originalism itself–in an effort to understand originalism. If originalism is the view that the Constitution’s original public meaning was and remains fixed, our topic today is meta: We ask questions that are not within but about originalism. In so doing, we declare ourselves engaged in originalismism.

For a moment, I thought, “Why was I not invited to speak at this conference?” Then I chuckled. Read the entire post. Stay for the Mitch McConnell turtle reference at the end.

And Rick Hasen has an all-too-accurate post on election law timing: “Election Litigation That Doesn’t Come Too Early Comes Too Late.”

A divided Supreme Court ruled today that there is no right time to file a case contending that an election law unconstitutionally violates the right to vote protected by the U.S. Constitution’s equal protection clause.

On a 6-3 vote, the Court in an unsigned (per curiam) opinion explained that lawsuits protecting voting rights cannot be filed well before the election, because in those cases the claims are “unripe” and plaintiffs lack standing due to the speculative nature of such claims. But claims cannot be filed too close to the election, under what has come to be known as the “Purcell Principle,” because changes in election laws close to the election risk confusion of voters and election administrators.

A fairly accurate statement of current doctrine.

Thank you for the laughs.

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Police in Brooklyn, New York, touted a raid they made in December that seized 22 firearms, even posting a photo of themselves with their haul online. The police department’s own lab quickly figured out that 21 of the 22 guns were not real firearms but replicas, starter pistols, or air guns. But the district attorney is refusing to drop weapons charges against the owner of the fake guns, who leases the weapons to people shooting music videos.

Retired doctors and nurses in the United Kingdom have volunteered to help administer coronavirus vaccines, but red tape is making it difficult for them to lend a hand. They have to produce 21 different documents, including not only proof of their professional licensing but also certification that they have undergone the most recent training in -equality, diversity, and human rights; prevention of radicalization; and data security.

A pro-democracy protester in Hong Kong has been sentenced to four months in prison for insulting the Chinese flag and unlawful assembly. Tony Chung, 19, tossed the flag to the ground during a protest outside the Hong Kong legislature.

The San Francisco Board of Supervisors has condemned the naming of the city’s hospital for Facebook’s co-founder and CEO. The hospital was renamed in 2015 after Mark Zuckerberg donated $75 million for a new acute care and trauma center. Supervisors criticized Facebook for not doing more to protect users’ privacy or to stop the spread of misinformation. The renaming was approved by a previous Board of Supervisors.

Daniel and Norris Keating saw a barrel marked “flammable liquid” floating in the waterway behind their Clearwater, Florida, home. They pulled it out and called county officials to see about transporting it to a hazardous waste drop-off site. Instead, firefighters arrived and said that, because it was now on their property, the couple would have to pay to have it disposed of. After a local TV reporter started making calls about the matter, the Florida Department of Environmental Protection agreed to retrieve the barrel.

The Ipswich, Australia, City Council has reprimanded council member Paul Tully for posting a sexist joke to his personal Facebook page. The post read: “I asked my trainer which machine at the gym I should use to impress beautiful women. He pointed outside and said, ‘The ATM Machine.'”

The New Mexico Department of Public Education has apologized for sending a truancy letter to the parents of Landon Fuller. Landon, 11, killed himself last April. His parents had alerted Hobbs Municipal Schools and officially withdrawn their son the day after his death.

Officials in Windsor, Ontario, ordered Steven Levesque to remove a tent covering his driveway. Levesque says he needs the tent to shield his daughter, who has cerebral palsy and epilepsy, from the elements as he takes her from the house to a handicapped-accessible van and back. But the city’s building code bars such structures.

A Pittsburgh, Pennsylvania, parking enforcement officer was suspended without pay in December after she was caught on video blocking a street with her vehicle and refusing to move for an ambulance with its lights and siren on.

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For more than a century, the story of religion in the West has been one of disenchantment, as different sects struggled to cope with science, individualism, and a rising tide of secularism. The Yale historian Jon Butler tells that tale in microcosm in God in Gotham, an engaging history of religion in the Big Apple, especially Manhattan, in the roughly 80 years from the Gilded Age to the JFK presidency. It is a story not just of spirituality but of institutions, and it offers valuable lessons in how endangered entities, whether religious or not, can sustain themselves in the face of change.

To many of us, Manhattan is a foul-mouthed, sharp-elbowed temple to Mammon, but the author uses the harsh environment to advantage. In Butler’s hands, Gotham’s most influential borough is a petri dish brimming with religious organizations coping with change. The author’s chosen time period encompasses the onset of mass immigration, mass media, and mass affluence, to say nothing of two world wars, the Great Depression, and the atomic bomb.

Ours is not the first era to see a decline in church affiliation. In the late 19th century, Butler shows, ministers fretted that religion was a lost cause—particularly in booming, polyglot New York, with its proliferating saloons, harsh economic climate, and galloping ecclesiastical diversity. Protestantism seemed particularly threatened; its leading denominations were notoriously schism-prone and hopelessly bourgeois, gaining little purchase among the working classes. By 1880, moreover, 88 percent of city residents were immigrants or had parents who were, and a huge proportion of these new Americans were Catholics or Jews. At an 1888 convocation of Protestant ministers in Manhattan, Butler writes, “most of the conference talks…read like spiritual autopsies.”

Who could have foreseen the religious vitality that lay ahead? The flood of newcomers brought new spiritual energy to the city, and religions responded by catering to the influx of ethnicities and languages. The challenges of modernity demanded that religious organizations adopt new, efficient business methods to manage operations. Churches provided shorter and more frequent services to cater to working people, and faith-based organizations such as the Salvation Army and Alcoholics Anonymous emerged to meet important needs outside of church.

Manhattan churches and synagogues began to position themselves more aggressively as educational, recreational, and social service outfits. At a time when government provided little in the way of a social safety net (aside from the selective largesse of Tammany Hall), a decentralized assortment of religious institutions, like the fraternal organizations of the day, were important sources of mutual aid and fellowship.

The more centralized Catholic Church, with its army of capable nuns and its growing flock of needy parishioners, was also well-positioned to serve communities. “The Sisters of Charity opened St. Vincent’s, the city’s first Catholic hospital, in 1849,” Butler writes. “By 1910 New York was home to twenty-three Catholic hospitals.” Nuns “transformed the Catholic presence in the city” through a robust network of parochial schools as well as facilities for the destitute and the orphaned. Dorothy Day’s Catholic Worker organization showed that Catholic anarchists could provide for the poor as well.

American Protestantism was inspired to service by the Social Gospel movement, which was born during the 11 years of the late 19th century that Walter Rauschenbusch spent ministering to the poor in the Manhattan slums. He and others laid out a vision of Christianity that went beyond personal redemption to encompass labor reforms, charity, and justice—an agenda that would itself become sacred in certain circles. The Protestants had no nuns, but women played important roles in staffing Sunday schools, sustaining congregations, and organizing societies to aid the poor. Their inrush to the pastorate would come later.

Manhattan was also where churches got the most out of radio. “Between the mid-1920s and late 1930s,” Butler tells us, “as many as half of New York’s radio stations offered Yiddish language broadcasts, many of them religious.” But syndicated broadcasting was naturally dominated by Christians, most of them Manhattan-based: “When the American Academy of Political and Social Science digested ‘Radio and Religion’ in its 1935 Annals, eight of the ten ‘distinguished’ clergy it identified as deeply involved in religious radio broadcasting were Manhattan ministers, their messages carried on the dominant radio networks.” Norman Vincent Peale’s Art of Living broadcasts were “a twenty-year preface to his 1952 Power of Positive Thinking, which sold millions of copies and made his brand of ‘practical Christianity’ a touchstone across Protestant America.”

Butler makes a good case that “between the 1920s and the 1960s Manhattan stimulated an outpouring of individual and institutional religious creativity unsurpassed in any other twentieth-century American locale.” In a chapter called “God’s Urban Hothouse,” he weaves together Peale’s antics, the founding of Reconstructionist Judaism (here too God’s presence grows fainter), the genius of Reinhold Niebuhr, the activism of the Adam Clayton Powells (father and son), and what was evidently the world’s first bat mitzvah. The city’s newspapers attested to the importance of religion by printing notices of upcoming sermons and even writing about some of them. Butler doesn’t mention it, but Dietrich Bonhoeffer, who spent the 1930–31 academic year at Union Theological Seminary, wrote that “the Monday morning New York Times offers an extremely valuable complement to any study of contemporary preaching.”

Wrapping up in the Kennedy years lets Butler finish on a more hopeful note than might otherwise have been possible, for Camelot came just before the end of what Garry Wills called the “feverish religiosity” that followed World War II. Wills has noted that in the 15 years following the Second World War, clergymen were the most respected leaders in America, under God was added to the Pledge of Allegiance, and “In God We Trust” became the national motto. Ten days after his inauguration in 1953, Dwight Eisenhower became the first (and thus far only) president baptized in office.

Butler’s focus on Manhattan lets him pass on covering the Jehovah’s Witnesses and Chabad. (Brooklyn, once known as the borough of churches, has also been the borough of synagogues and The Watchtower.) It’s more surprising that the ultra-conservative Cardinal Francis Spellman, who was practically synonymous with American Catholicism as the city’s archbishop from 1939 to 1967, gets only a single mention, as does Malcolm X.

The clergyman Harry Emerson Fosdick doesn’t go unnoticed, but readers might have enjoyed learning more about this cheerful pacifist and civil libertarian. In the 1920s, while discomfiting congregants as a pastor at Manhattan’s First Presbyterian Church, the Baptist Fosdick was accused of heresy, by William Jennings Bryan among others, over his public rejection of biblical literalism. In an ecclesiastical inquiry, Fosdick was defended by no less than future Secretary of State John Foster Dulles, at the time a young lawyer and parishioner, who argued that a Baptist clergyman couldn’t very well be a Presbyterian heretic. (Butler notes that Protestant trials were common in the New York area back then; the Times reported on more than 20 from the 1890s to the 1920s.) Fosdick won on the merits but resigned rather than follow the church’s demand that he convert, which would subject him to fundamentalist dogma. He was rescued by the patronage of John D. Rockefeller Jr., who built the mighty interdenominational Riverside Church expressly for him.

Martin Luther King Jr., like most Protestant clerics of the time, borrowed liberally from Fosdick’s sermons. “You are the greatest preacher and foremost prophet of the century,” King would later tell him, laying it on just a bit thick. “You are a Christian saint.”

Maybe not. But he was something that nowadays seems rarer: an optimist. And the sermon that triggered Fosdick’s doctrinal troubles—”Shall the Fundamentalists Win?”—is more relevant today than when he delivered it in 1922. “There are many opinions in the field of modern controversy concerning which I am not sure whether they are right or wrong,” Fosdick told his parishioners. “But there is one thing I am sure of: Courtesy and kindliness and tolerance and humility and fairness are right. Opinions may be mistaken; love never is.”

God in Gotham: The Miracle of Religion in Modern Manhattan, by Jon Butler, Belknap Press, 308 pages, $29.95

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I’m not in principle opposed to “vaccine passports,” in the sense of reliable mechanisms of showing that you have been vaccinated (against COVID or against future diseases). That is especially so if they are used by private businesses, such as bars or stadiums or cruise ships, which want to reopen relatively safely, and in a way that assures patrons that they are relatively safe. (Since the vaccines aren’t perfectly reliable, even vaccinated patrons might reasonably prefer close gatherings only with people who have been vaccinated.) But I think they would make sense for some government functions as well; for more on why I think such requirements are permissible even from a libertarianish perspective, see my Libertarianism and Communicable Disease post.

Still, the devil is in the details. Some involve substantive judgments: For instance, how would the vaccine passports deal with people who have good medical reasons not to get vaccinated? Others involve judgments about how best to minimize the risk that sensitive medical information will get hacked, or that the infrastructure will be too easily adapted for future improper uses (depending of course on which uses one thinks might be improper).

But there’s also the supply chain political blacklist risk I discussed in a post earlier this morning. Say a venue (a meeting hall, a hotel, a university) starts using a passport that’s supplied by some tech company, and that tech company then decides—whether because of its managers’ or employees’ ideological views, or because of pressure from other customers or suppliers—that it will stop serving venues that host “extremist” or “hateful” or “pro-insurrectionist” or anti-“anti-racist” events. Or say that the company decides to stop serving passport-holders who have attended such nefarious events; they reject such evil ideas, the company would say, and they don’t want their technology to be used to spread such ideas.

What started out as just a health and safety decision by the venue, or by the government if it is requiring certain venues to check the vaccine passports, will have turned into extra private company control over what people can say and hear. Such control might be perfectly legal; I’m not claiming otherwise. But people (whether venue owners or customers or advocates or government officials) deciding whether to adopt such passports, and whether to support such passports, might want to try to prevent this up front. They might, for instance,

• oppose the passports unless the passport system is set up in some distributed way that isn’t subject to the power of one or a few companies,
• oppose the passports unless there are binding contractual promises by the companies that they will provide passport services to all prospective venues and to all prospective holders, or
• call for common-carrier-like legislation so mandating, though there can of course be libertarian and pragmatic objections to such regulation.

In any event, I think the events of recent months and years should remind us to consider supply chain political blacklist risk, just as we consider technological security risks, mission creep risks, and other such concerns.

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Prof. Jane Bambauer, Prof. Ashutosh Bhagwat, and I just filed an amicus brief in Mahanoy Area School Dist. v. B.L., the Supreme Court’s new student speech case. Many thanks to my colleague Prof. Stuart Banner, who drafted the brief for us, and to his students Tom Callahan and Molly Moore. (I also signed the brief as counsel, together with Stuart.) In case you folks are interested, here is our argument:

Summary of Argument

In Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969), this Court held that “[i]t can hardly be argued that … students … shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Yet petitioner argues that students shed much of their freedom of speech even outside the schoolhouse gate, so long as their off-campus speech is reasonably expected to reach campus. This proposal would allow schools to punish students for an enormous range of speech that expresses unpopular or controversial views.

Schools do have legitimate concerns about some off-campus speech, but it is possible to respond to these concerns without giving schools the authority to censor all off-campus speech. Rather, the Court should identify the circumstances under which schools need more control over student speech than the First Amendment would normally allow—rare circumstances, when it comes to speech outside a school-organized activity—and apply the Tinker standard only in those circumstances. In other contexts, particularly where students express unpopular or controversial views, students should have the same freedom of speech as adults.

Argument

[I.] Student speech outside school activities should generally be fully constitutionally protected.

In Tinker, the Court recognized that the school’s authority over student speech generally arises only at the schoolhouse gate. 393 U.S. at 506 (identifying “the schoolhouse gate” as the relevant boundary), 508 (referring to speech “in class, in the lunchroom, or on the campus”), 512-13 (referring to speech “in the cafeteria, or on the playing field, or on the campus during the authorized hours”). The Court restated this distinction between on-campus and off-campus speech more explicitly in subsequent cases. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (“A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.”) (citation and internal quotation marks omitted); id. at 271 (describing Tinker as governing “expression that happens to occur on the school premises”); Morse v. Frederick, 551 U.S. 393, 405 (2007) (“Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected.”) (referring to Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)).

Technology has of course made the schoolhouse gate into a virtual term as well as a physical one. The “school context” to which Morse referred has long included various online activities as well as off-campus but school-sponsored physical gatherings. Students use the Internet to download and upload assignments; they communicate with their teachers by email and on social media; and they collaborate on school activities with classmates who might be miles away. During the pandemic, the classroom itself has become a virtual space, in which neither the teacher nor any of the students is on school grounds.

But while the school must therefore control virtual classrooms as it does physical ones, it does not follow that it may control online—or offline—speech outside the “school context,” even when off-campus speech has effects on campus. This is so for two reasons.

First, all online speech by students can be expected to reach the school’s campus. Students take their phones and computers everywhere they go, including to school. So do their teachers. Anything a student posts on social media—a preference for one political candidate over another, a statement of religious belief or nonbelief, praise or criticism of a teacher or a fellow student—is likely to be read by someone on campus. Applying the Tinker standard to all online speech would be an enormous expansion of schools’ power to censor the speech of their students. If students do not shed their freedom of speech “at the schoolhouse gate,” Tinker, 393 U.S. at 506, they certainly should not shed their freedom of speech every time they speak online.

Second, when students express unpopular or controversial views off campus, much of their speech deserves full First Amendment protection even if it causes disruption on campus. For example:

• Student A writes a letter to the editor of the local newspaper in which he argues that the town’s police officers engage in unjustifiable violence against Black suspects. The newspaper posts the letter on its website, where it is read by other students, including some whose parents are police officers. At school the next day, fights break out during the lunch hour and several students are injured.
• At a church event, Student B expresses her view that same-sex marriage should be unlawful. Several other students are at the event, and one of them summarizes Student B’s remarks in a social media post read by hundreds of other students. At school the next day, classes are repeatedly interrupted by students angrily denouncing Student B’s views.

If the Tinker standard applied to these examples of off-campus speech, both of which could reasonably have been expected to reach campus, the school could punish these students because their speech caused disruption at school.

Yet that would violate students’ First Amendment rights. Students, just like adults, hold opinions about all sorts of matters. Outside of school, they often wish to express themselves in ways that can make their colleagues feel hurt or angry, possibly even to the point of causing disruption back at school. But speech cannot be restricted merely because it causes hurt or anger. Snyder v. Phelps, 562 U.S. 443, 458 (2011); Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134-35 (1992); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988). Even in school, speech “that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk.” Tinker, 393 U.S. at 508. There should be no heckler’s veto even in school, but there should certainly be none in the world outside.

If Tinker were extended to all off-campus speech that could be expected to reach campus, schools could exercise round-the-clock control over the speech of their students, placing a large swath of Americans into the very sort of “enclaves of totalitarianism,” id. at 511, that this Court condemned in Tinker. Only the bravest or most foolhardy student would dare to express an unpopular or controversial opinion online, because students would learn quickly that they could be punished for any disruption their opinion caused at school. The freedom of speech would be like alcohol, legally available only to those above a certain age. Yet this is sharply inconsistent with Tinker‘s recognition that freedom of speech (including speech that might “start an argument or cause a disturbance”) “is [the] sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Id. at 508-09.

The government shares our worry about the wide range of speech that would become punishable under petitioner’s proposal. U.S. Br. 19-22. The government suggests instead that schools should be allowed to discipline students for off-campus speech that “intentionally targets specific school functions or programs regarding matters essential to or inherent in the functions or programs.” Id. at 24. This formulation has the virtue of being narrower than petitioner’s proposal, but it would still empower schools to punish students for speech that deserves full First Amendment protection. For example:

• Student C truthfully reports on social media that she was sexually assaulted by her softball coach. This information creates turmoil at school. The coach denies the allegation; half the team quits and the remainder of the season is abandoned; for several months the school is bitterly divided between those who believe Student C and those who believe the coach; and for years afterward the school has trouble fielding teams in several sports because girls and their parents are fearful of what participation may entail.
• Student D posts on social media a respectful but critical discussion of the erratic classroom behavior of his Chemistry teacher, who has been increasingly departing from the curriculum to deliver diatribes about the federal government. For the rest of the school year, the school is besieged by phone calls from angry parents demanding to have their children reassigned to a different Chemistry class.

These students could be punished for their speech under the government’s proposal (and under petitioner’s proposal as well).

Tinker was a modest, cabined exception to the normal protections of the First Amendment. Extending Tinker in the ways proposed by petitioner or the government, by contrast, would be a major abridgment of the ability of students to express unpopular or controversial views, in just about any forum, just about anywhere.

[II.] Tinker should govern only particular categories of student speech outside the school context.

[A.] Applying a categorical approach rather than a universal case-by-case inquiry into “disruption.”

Of course, technological changes have greatly magnified the harms that some kinds of student speech can inflict (as well as the benefits that other kinds of student speech can provide). A mean-spirited criticism of a classmate that would once have been heard by only a handful of friends can now be read by the entire school, including by the person who is criticized. A spontaneous outburst—e.g., “I’m so mad I want to kill everyone”—that would not have been taken literally when it was heard only by a single close friend must be taken much more seriously when it can be read by thousands of people who have no way of knowing whether it is meant as a genuine threat.

The Court may therefore need to allow schools authority to restrict certain categories of speech. But such speech should be defined categorically rather than using a free-floating “disruption” standard. Just as “our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality,” R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992) (cleaned up), so First Amendment law should permit restrictions on student speech in a few additional but limited areas. And all such exceptions should be designed to leave students ample means to express (without fear of administrative discipline) all “speech that can plausibly be interpreted as commenting on any political or social issue.” Morse, 551 U.S. at 422 (Alito, J., concurring).

To be sure, outside the government’s special role as educator, these exceptions are generally defined by “long-settled tradition.” United States v. Stevens, 559 U.S. 460, 469 (2010). But here the relevant tradition is just the general principle that schools do have some (but not unlimited) extra authority over student speech, as this Court recognized in Tinker. The Court should express this tradition in a clear and administrable set of legal rules that minimally intrudes on student speech outside school-sponsored activities—just as the Court developed the First Amendment law of libel, obscenity, fighting words, incitement, and the like by recognizing the existence of traditional exceptions, see, e.g., Roth v. United States, 354 U.S. 476, 484-85 (1957), and then creating administrable rules to implement these exceptions.

[B.] An exception for personal cruelty.

In particular, while schools should not have the authority to punish ideological messages outside the school context—even when those messages might anger classmates—schools need the authority to punish students for saying cruel personal things to or about each other, especially online. There is a broad consensus that children suffer far more than adults when they are the targets of online criticism, which suggests that such speech may be restricted if it is sufficiently disruptive, even though comparable statements by adults to or about other adults would receive full First Amendment protection.

This kind of speech is often called “bullying” or “harassment,” but these terms can be too vague to be useful. Sometimes the expression of a controversial policy view is labelled as bullying or harassment when listeners are especially upset to hear that view. A student who argues that immigration has been disastrous for this country may be considered a bully by fellow students who are themselves immigrants, while a student who condemns religion as superstitious nonsense may be considered a harasser by students who are devout.

There is an important difference, however, between personally insulting someone and expressing a viewpoint with which listeners disagree. Tinker should not govern every form of speech to which the label of “bullying” or “harassment” has been applied, but only what we take to be the core of that category—speech in which one student says cruel personal things to or about another. Statements like these are about the characteristics of individual people, not about broader policy matters, so applying Tinker to such statements would be unlikely to interfere with students’ expression of political ideas. See, e.g., J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1117 (C.D. Cal. 2010) (applying Tinker to a student’s YouTube video calling another student “spoiled,” a “slut,” and “the ugliest piece of shit I’ve ever seen in my life”).

[C.] A continuing exception for disruptive speech in a school-sponsored forum.

Likewise, Tinker should continue to apply to speech in a school-sponsored forum such as a class, a school assembly, or a school publication. In most settings, the government may not punish a speaker for insisting that 2+2=5 or that Switzerland is in South America, but a student who says such things on an exam should receive a failing grade. One of the very purposes of a school is to reward or punish students for certain kinds of speech.

This principle is already reflected in the Court’s cases, which rest at least as much on the school’s sponsorship of the forum as on the forum’s physical location.

The outcome of Fraser, for example, would surely have been the same if the school assembly had been conducted online rather than in person. Either way, “schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech.” Fraser, 478 U.S. at 683. The important thing about the assembly was not that it was held on campus but rather that it was a school assembly—a meeting with the imprimatur of the school—as opposed to a gathering of students on their own.

Likewise, the outcome of Kuhlmeier would surely have been the same had the newspaper been produced off campus. The Court observed that schools need heightened authority over “school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” Kuhlmeier, 484 U.S. at 271. The important thing was not the paper’s location but that it was a school newspaper—a forum sponsored by the school—as opposed to a newspaper produced by the students on their own.

And likewise, the outcome of Morse would surely have been the same if the “Bong Hits 4 Jesus” banner had not been visible from school grounds. The important thing was not the banner’s location but rather that students displayed it “[a]t a school-sanctioned and school-supervised event.” Morse, 551 U.S. at 396.

[D.] Possible future exceptions.

There may be other specific circumstances, beyond these two, in which schools need heightened authority to punish students for speech (or in which schools running particular programs, such as athletic programs, may need heightened authority to exclude students from these programs). If so, however, the appropriate response will be to carefully define what restrictions are allowed in these specific situations—not to allow schools to punish students for all off-campus speech that causes disruption on campus.

For instance, where a student threatens members of the school community, a school already has ample authority to punish the student because threats are not protected by the First Amendment. See, e.g., D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 764 (8th Cir. 2011). Whether or not statements by adults must be intended as threats to be unprotected (a question as to which there is currently some uncertainty, see Perez v. Florida, 137 S. Ct. 853, 854-55 (2017) (Sotomayor, J., concurring in the denial of certiorari)), the nature of school disciplinary rules—which are aimed at establishing and enforcing norms of peaceful, nonthreatening behavior, not chiefly at punishing morally culpable conduct—might allow punishing a student for speech that could be reasonably interpreted as a threat, even if it was not so intended.

Thus, if new concerns emerge, courts have the flexibility to address such concerns one at a time, each on its own merits. There is no need to diminish students’ freedom of speech in all contexts, for instance by categorically applying a “disruptiveness” standard to all off-campus speech. At this point, all the Court needs to do is answer the question presented in this case:

Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), 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.

The answer should generally be “no.”

Conclusion

The judgment of the Court of Appeals should be affirmed.

For the current state of K-12 student speech law, watch this:

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