Will America's Top Court Protect Free Speech Online for Teenagers? (cnn.com) 88
Writing on CNN, an American historian looks at the Supreme Court's recent 8-1 ruling in favor of the free-speech rights of Brandi Levy, who as a 14-year-old cheerleader had posted a photo to Snapchat cursing out her school and its cheerleading program. But the historian also suggests where this ruling came up short:
In recent decades the Court has sought to widen public schools' parental and paternalist reach, shrinking the sphere of students' free speech rights... In Levy's case, she was using social media off-campus, outside of school hours, to express a criticism of an extracurricular activity. If her school could control that speech, then there would be very little space left for Levy to express herself.
Yet the Court took too modest an approach to students' rights. The Mahanoy decision was much narrower than the lower court's. The Third Circuit had ruled that the school had no right to interfere with off-campus speech, a decision that would have significantly expanded students' rights. In Mahanoy, the Court ruled that schools may still regulate student speech off-campus, depending on the circumstances (though did not lay out a framework for those circumstances, leaving that to future court decisions)...
[P]ublic schools are more properly (if less creatively) understood as, well, the schools of democracy, where students are taught and guided and given an opportunity to test out the rights of citizenship. Social media have become an integral part of students' public identity — indeed, of many adults' public identity. Students should be taught about the inevitable permanence of ephemeral speech. A Snapchat snap, an Instagram story, a Twitter fleet, all designed to disappear, can easily be made permanent. Levy thought she was making a relatively private, fleeting statement, only to find it memorialized in Supreme Court jurisprudence.
But students should also have more speech protections, be allowed to criticize the institutions in which they spend so much of their time — and be largely free of their school's oversight when they are beyond the schoolhouse gates.
Yet the Court took too modest an approach to students' rights. The Mahanoy decision was much narrower than the lower court's. The Third Circuit had ruled that the school had no right to interfere with off-campus speech, a decision that would have significantly expanded students' rights. In Mahanoy, the Court ruled that schools may still regulate student speech off-campus, depending on the circumstances (though did not lay out a framework for those circumstances, leaving that to future court decisions)...
[P]ublic schools are more properly (if less creatively) understood as, well, the schools of democracy, where students are taught and guided and given an opportunity to test out the rights of citizenship. Social media have become an integral part of students' public identity — indeed, of many adults' public identity. Students should be taught about the inevitable permanence of ephemeral speech. A Snapchat snap, an Instagram story, a Twitter fleet, all designed to disappear, can easily be made permanent. Levy thought she was making a relatively private, fleeting statement, only to find it memorialized in Supreme Court jurisprudence.
But students should also have more speech protections, be allowed to criticize the institutions in which they spend so much of their time — and be largely free of their school's oversight when they are beyond the schoolhouse gates.
Tripe (Score:1)
Nuff said.
Re: Yes (Score:2)
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What if itâ(TM)s like a university where the kid is paying the education, but the institution also received some government perks like free land and maybe some free research grants etc
Oftentimes issues like these are the most significant differences between a public and private university. For example, public universities often have to respond to FOIA/sunshine law requests while private universities do not. This is also how a lot of conservatives were able to ruffle a lot of feathers by taking advantage of the free speech provisions on public universities a couple years back and schedule speaking engagements. Even if the universities wholly disapproved of the speakers, they had to allow
Would a nonpartisan Court be nice? (Score:1)
Whatever the Court does these years, it has to be evaluated in terms of partisan politics. Wouldn't it be nice if the party politics could be removed?
If you disagree, then I'd be interested to see your (rational and nonpartisan) refutation of the "blind justice" principle.
If you agree, then I'd like to see your solution approach. Hopefully it would be better than mine.
My simpleminded idea would be to make one nonpartisan Justice equal to three partisans. Nonpartisan Justice defined as one who is confirmed b
Re:Would a nonpartisan Court be nice? (Score:4, Insightful)
The Notorious RBG was the last nonpartisan Justice,
That's pretty funny
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a conservative or liberal justice is not quite the same thing as a party stooge.
RBG refused to step down during the Obama administration, even though Democratic insiders asked her multiple times to make way for a new nomination. Her reason? She felt that the Republicans could stall an appointment until the next election cycle. She essentially disobeyed the leadership of the DNC for the simple reason that nonpartisan justices do not answer to any Party.
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a conservative or liberal justice is not quite the same thing as a party stooge.
RBG refused to step down during the Obama administration, even though Democratic insiders asked her multiple times to make way for a new nomination. Her reason? She felt that the Republicans could stall an appointment until the next election cycle. She essentially disobeyed the leadership of the DNC for the simple reason that nonpartisan justices do not answer to any Party.
Refusing to quit her lifetime dream job to the highest court in the land does not make her "nonpartisan".
It just means her self interest didn't align with her party politics, and she prioritized her self interest.
And seriously, it's pretty crappy to tell somebody "Hey, you might die soon anyway, so quit now".
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Can't tell if you're feeding a clever troll or if magzteel actually got the joke.
However I also can't figure out if your [OrangeTide's] joke is additional evidence for my main point. Are you sanctioning the political considerations around the Supreme Court nominations or condemning them? Or maybe you are fuzzily trying to accuse RBG of accepting them?
But I can respond in two steps:
(1) I do not feel that my primary point needs any more evidence. I think McConnell's hypocrisy suffices. (Though there is LOTS o
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Problem is that the core party bases both believe that everyone would side with their views if only they were not biased.
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ACK, but both parties still claim to want honest and impartial judges. Or are you rejecting the idea that any solution could exist?
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The solution is to stop treating your party as the holy embodiment of truth and light and instead it just happens to be aligned with some of your long term goals. Compromising is a good thing.
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In Upheaval Jared Diamond argues that the inability to compromise is both increasing and the greatest danger to America. He does speculate a bit on some of the factors that are causing it, but I felt like the psychological and technological complexities were evading him. He knows a lot of stuff, but no one knows everything... But my main concern was that he didn't seem to offer any solution approaches that I found plausible. More of a focus on his framework for analyzing historical solution approaches tha
Re:Would a nonpartisan Court be nice? (Score:5, Interesting)
Whatever the Court does these years, it has to be evaluated in terms of partisan politics.
This was an 8-to-1 decision. It was not decided on partisan lines.
The only dissenter was Thomas.
Guess who agreed with Thomas? Joe Biden [washingtontimes.com].
The Notorious RBG was the last nonpartisan Justice
Surely you jest? RBG was a staunch defender of progressive values.
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Whatever the Court does these years, it has to be evaluated in terms of partisan politics.
This was an 8-to-1 decision. It was not decided on partisan lines.
The only dissenter was Thomas.
Guess who agreed with Thomas? Joe Biden [washingtontimes.com].
Like the giant clown at the end of Killer Clowns From Outer Space, his nose popp't, the grandparent poster begins spinning, slowly, then faster and faster, in time to the upreving hurdy gurdy music, until wildly, he explodes in a shower of pretty sparks and confetti.
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The Notorious RBG was the last nonpartisan Justice
Surely you jest? RBG was a staunch defender of progressive values.
See, this is the problem with the current political discourse. The literal meaning of "conservative" notwithstanding, there was a time when "progressive" was not pseudonymous with "Democrat". In other words, RGB could be progressive without people automatically assuming, as you seem to have done, that she was therefore partisan. This is binary thinking at its worst, and it's largely responsible for the zillion drama-soaked shit-shows that now pass for politics and leadership.
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I don't know who's responsible for generating the URLs at the Washington Times website, but they're doing a terrible job.
I actually know a guy who used to write headlines for a while... Hard to do well.
As regards most of this thread, I think it discounts the internal dynamics of the Court. Many of the written opinions paper over the internal divisions.
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Casting the problem in political terms only provides additional evidence of the problem. Don't need more.
And I was jesting about RBG, but you seem to have entirely missed the joke or discarded the definition. Perhaps I should have used the example of Ike's greatest acknowledged mistake?
Re:Would a nonpartisan Court be nice? (Score:4, Insightful)
I think this would work as well as anything with spherical Justices in a vacuum. Beyond that I see three reasons why it would not accomplish what you want:
1) "Blind Justice" is completely undefined and the definition would be politicized.
2) More significantly, every State gets two senators, which results in the gross overrepresentation of low population states. By 2040 it is projected that 2/3rds of Americans will be represented by just 30 senators. https://www.washingtonpost.com... [washingtonpost.com] These small states tend to be rural and conservative, so your "non-partisan" solution actually gives the rural and conservative party a significant advantage. This is a problem with the Senate generally, but giving the "non-partisan" Justice superpowers just exacerbates this unearned advantage (which itself amplifies the Electoral College's overrepresentation of low-population states).
3) As a practical matter, senators in the out-party have no incentive to create a Superjustice nominated by a President from the opposing party. McConnel has already said that he would try to block any Binden SCOTUS nominee https://www.nbcnews.com/politi... [nbcnews.com]. Republicans (then in the majority) would not allow a yea/nay vote for conservative Democrat Merrik Garland, who was nominated to replace Scalia because conservative senators thought he was fair (Orrin Hatch was the key one, I think). I don't see any incentive for Republicans to become more conciliatory when your non-partisan nominee also has the ability to nullify the votes of Alito and Thomas (the two most nakedly right-wing justices).
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I also dismissed your comment as pretentious and poorly considered, though I might be projecting. But I could respond with a list of books I've read about the internal dynamics of the Supreme Court and more general books about legal systems. Or philosophy books, especially about "justice". However your main effect has been to convince me you ain't worth it.
And I'm even more convinced you have no better ideas to offer. So I'll also spare you definitions of "constructive" and "solution".
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I gave my reasons for dismissing your idea, and the omission of your bibliography was not among them, so keeping that to yourself is energy well preserved.
At the risk of being pretentious, and speaking for everyone on Slashdot: nobody cares what you've digested. It is the shit you post that they judge, and some shit isn't as hot as it feels while you're releasing it.
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NAK
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The Notorious RBG was the last nonpartisan Justice
By this logic, Atonin Scalia was a nonpartisan justice.
Looking at results of recent votes, many not 5-4, and many varying alignments show that it's not that partisan. Barrett was supposed to be the ACA boogeyman.
I do think terms should max at 20 years.
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I had no idea the joke was so confusing. Just joking. It's par these days. Good thing I didn't try the vintage Ike joke, eh?
But at least you offer a solution, though I think it's too weak. Why would it matter if one partisan Justice retires as long as the replacement is equally partisan?
In new support of my approach focused on the confirmation process, in Upheaval by Jared Diamond he argues that the main threat to America is not China or nuclear weapons or even climate change, though he wrote a lot on all
All animals are equal (Score:2)
Some animals are more equal than others.
Re: All animals are equal (Score:2)
What is interesting in this case is the court explicitly limited the In loco parentis to minors, using this thinking. The means 18 and 19 year old have rights and responsibilities they did not have last week.
Younger teens are still animals o
Weird decision (Score:3)
So, if a cheerleader can post "fuck cheer" on social media and remain a cheerleader, can workers post "fuck INSERT JOB RESPONSIBILITIES" and remain an employee at their job?
I think this would be a sensible decision, but not an intentional one. I'm curious what keeps this decision from affecting workers. Kids generally have fewer rights than adults.
Re:Weird decision (Score:4, Informative)
So, if a cheerleader can post "fuck cheer" on social media and remain a cheerleader, can workers post "fuck INSERT JOB RESPONSIBILITIES" and remain an employee at their job?
I think this would be a sensible decision, but not an intentional one. I'm curious what keeps this decision from affecting workers. Kids generally have fewer rights than adults.
Probably because you sign off your rights when you become employed.
Check your TaC (Terms and Conditions) of employment. There are usually some casual statements about "free speech" and what you can and cannot use social media for.
School? Not so much.
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The cheer leading team isn't. Equating suspension from the team with suspension from school was sheer dipshittery.
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Check your TaC (Terms and Conditions) of employment.
This is really, really close to the reason. The conditions of your employment kind of depend on your employer. So mileage may vary, but with Schools it's not a YMMV because they receive federal funds for being educators. Now if we're strictly talking about private schools, then yeah you're right back where you started with "depends". Taking government money puts strings on that money about what you can and cannot do.
WARNING RANT AHEAD: But strictly private entities typically get free reign to do whate
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So, if a cheerleader can post "fuck cheer" on social media and remain a cheerleader, can workers post "fuck INSERT JOB RESPONSIBILITIES" and remain an employee at their job?
I think you missed the part where a public school (as part of the government) has limits to what punishments they can impost on a student because of the 1st Amendment. In this case, SCOTUS said the public school cannot punish her for her speech. If her school was private, SCOTUS would not have taken the case as a private school has vastly more freedom. As for workers that depends on the employer; private companies can fire you for your social media posts laden with obscenities.
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The difference may be that one is optional (cheering) while the other is your job. Generally, employers take a dim view of what employees due in their off time if it reflects negatively on the business. See the attempted insurrection on January 6th where people who were arrested lost their jobs as a result of their actions.
Even though the criminal's actions didn't directly relate to their employer, the employer did not want to be associated with such people.
If one were to say "fuck INSERT JOB RESPONSIBILI
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1. saying fuck isn't a criminal act. examples of actual crimes include: trespassing, assault on a police office, etc.
2. free speech being abridged by a government agency is precisely what the Constitution intended to limit. That is arguably different than a private business exercising its own discretion in who it employs.
You can post "fuck <boss's name> and <your company>" and you can lose your job. Depending on the jurisdiction of your employer, labor laws, and any contractual agreements you ma
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It's a different issue. A public school is technically a government body, and thus it cannot regulate the speech of students. A private business however can do whatever they want and the first amendment does not stand in their way. A private business can be overtly political and fire you even for not voting for the right person. The only limit here is with hiring and firing of protected classes where more scrutiny is paid to the reason.
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So, if a cheerleader can post "fuck cheer" on social media and remain a cheerleader, can workers post "fuck INSERT JOB RESPONSIBILITIES" and remain an employee at their job?
I think this would be a sensible decision, but not an intentional one. I'm curious what keeps this decision from affecting workers. Kids generally have fewer rights than adults.
As far as I know she didn't mention the school or anyone specifically and her rant was pretty generic, so I don't know why someone else doing something similar would be any different. Saying "fuck work" is different than "fuck <my employer>".
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So, if a cheerleader can post "fuck cheer" on social media and remain a cheerleader, can workers post "fuck INSERT JOB RESPONSIBILITIES" and remain an employee at their job?
Why the fuck would a school administration have the same rights over you as an employer?? Hint: one's paying you.
Re: Weird decision (Score:2)
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Well they not always can - not if that shirt could be reasonably necessary for your religion, sexual orientation, disability or race (and any other protected category).
The situation where school could and should affect free speech could for example be e-bulling. I suppose this decision accounts for such situations alas it does not specify it explicitly, as the TFS notices.
Nobody takes this seriously. (Score:1, Insightful)
This ruling is a joke. The next time someone posts a bunch of racist invective online and the school _doesn't_ severely punish them they will be picketed, multiple people will be "canceled", and they will cave in.
Free speech really just means "speech I personally am not offended by" to most of these fucking people.
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Oh, and by "racist invective" I mean anything from the n-word, to pictures of an antebellum ball they attended 2 years ago, to some weird micro-aggression.
And by "cancelled" you mean publicly scorned for doing/saying racist things with few significant consequences.
Re: Nobody takes this seriously. (Score:2)
Perhaps the most obvious example of gaslighting is how the identitarian left has created a system of public shaming known as âcancel cultureâ(TM), which its adherents carry out ruthlessly while repeatedly denying its existence. The denial is an extension of the strategy because it enables them to continue with impunity.
They insist that they are not âcancellingâ(TM) anyone, but merely âholding the powerful to accountâ(TM). But when a supermarket employee loses hi
Re:Nobody takes this seriously. (Score:4, Insightful)
Cancel culture is talked about vastly more often than it actually occurs. Probably by the same people who think critical race theory is a real thing taught in public schools or that the military should be defunded for being too neutral.
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Probably by the same people who think critical race theory is a real thing taught in public schools
Did you mean "it's a real thing, but it's not taught", or "it's not a real thing, but it is taught"? Because one of those is correct, and one is incorrect, and the two interpretations are miles apart in meaning.
(Hint: it's the one that's as true as a Texan science textbook, because "education" in the US is apparently on par with politics, where whoever lies loudest and longest wins, facts be damned).
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Critical race theory is something mentioned at high levels in academia, as a theory of interpreting history in the US. It's not taught in public schools by any means. It's just a bugbear to rile up voters.
Re: Nobody takes this seriously. (Score:2)
Racism is talked about vastly more often than it actually occurs. Probably by the same people who think critical race theory is a real thing that should be taught in public schools or that the police should be defunded.
Yep, sounds just as stupid from the other side.
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It's nice to know that someone is really concerned about the ability of racist teenagers to be little racist pieces of shit. If schools prevent kids from writing racist shit online everyone wins, especially the kid who has a good chance of maturing and not having a permanent stain on their reputation. Juvenile records are deleted. The internet is not.
Seriously, though, you should consider how your post sounds. It sounds like you care more about racism than free speech. Think about rights both ways: I think
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I think my kids have the right to attend school and not be surrounded by kids who are openly racist.
You may think that (though I think that in your case "think" is really stretching it), but you're wrong. The First Amendment is there precisely to permit speech people don't like. Speech everyone agrees with doesn't need legal protection.
But yeah, what's really important is the ability of racist teenagers to be publicly racist.
Yes, it is. Because one deals with a handful of students at a particular school and the other affects a freedom and a right that is guaranteed to every citizen.
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a freedom and a right that is guaranteed to every citizen
Except for the fact, as the narrow ruling in this case highlights, children are not full citizens. Note that knocking this premise down knocks down everything else in your post. Would it be too much of a stretch for you to think about that?
If children had the full rights as citizens we would not be able to force them to attend school in the first place. We're talking about a situation in which their rights are already compromised and we're just deciding how to best compromise their rights for the maximum be
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...If schools prevent kids from writing racist shit online everyone wins...
Schools were not elected, and they have neither the expertise nor the right to prevent anyone from posting anything off school premises, outside school hours, with non-school-owned devices.
But yeah, what's really important is the ability of racist teenagers to be publicly racist.
What's important is that we build a culture wherein a) the victims of racism can get overwhelming public support that drowns out the racist voices and negates their negative effects, and b) the racists learn how much they're ultimately hurting themselves with their misplaced hatred. Admittedly, we've done a really shitty
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Schools were not elected
I guess you've never heard of a school board.
and they have neither the expertise nor the right to prevent anyone from posting anything off school premises, outside school hours, with non-school-owned devices.
Although the Supreme Court sided with the plaintiff in this case, they went to great lengths to explain why this is not true.
What's important is that we build a culture wherein a) the victims of racism can get overwhelming public support that drowns out the racist voices and negates their negative effects, and b) the racists learn how much they're ultimately hurting themselves with their misplaced hatred. Admittedly, we've done a really shitty job at those - but I think the problems arising from what you're advocating are worse.
All I'm advocating for is that, if a student publicly states online something along the lines of, "all black people should be lynched," that the school can punish them for it. When you post something like that publicly, black students should not be forced to go to school with you and fear for their lives. Even though the statement does not
Don't overlook the obvious (Score:5, Interesting)
But students should also have more speech protections, be allowed to criticize the institutions in which they spend so much of their time — and be largely free of their school's oversight when they are beyond the schoolhouse gates.
While the red-blooded drum of Freedom seems to drown out any counterargument to this statement, let's not try and overlook the obvious as we champion for the unobstructed rights of a citizen.
That citizen, is still a child. And we limit the actions of children in our country. You cannot drink or smoke. You cannot defend the country, own a gun, or even vote for a leader who would allow you to. All for valid reasons.
Will you still be this virulent in your defense of Free Speech when it's a 10-year old spouting off in a profanity-laced rant? How about 8 years old? If not, why? What exactly is the magical age in which we draw that line? If you don't know the answer, then perhaps you don't know if even this response was the right one.
To be clear, I somewhat agree with the end result but certainly recognize the slippery slope, especially as narcissistic arrogance is now a championed trait in our society.
Re:Don't overlook the obvious (Score:5, Insightful)
Will you still be this virulent in your defense of Free Speech when it's a 10-year old spouting off in a profanity-laced rant? How about 8 years old? If not, why? What exactly is the magical age in which we draw that line? If you don't know the answer, then perhaps you don't know if even this response was the right one.
I don't think a government-run school should be able to punish an 8 year-old for saying bad words outside of school. If her parents want to feed her LifeBuoy that is their business. I wish that the Court had provided better speech guidelines for when the school *could act* (threats, harassment, and cheating leap to mind). But this school decided to to appeal its losses all the way to the Supreme Court because of the f-word rather than more consequential speech--and the Justices can only look at the case in front of them. So fuck the school for wasting everyone's time, too.
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the Justices can only look at the case in front of them
Not really. The Justices decide which cases they will hear. It's only a small percentage of cases that make it that far. If they wanted to address this issue from a different angle, there's probably a different case they could have taken.
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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.
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Note that the Supreme Court generally dismisses cases they agree with which is why the circuit courts generally have between a 90-100% overturn rate.
If the case
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I think this is why it's good that the court made a very narrow ruling that includes nuance. Too many people were looking at this case as if it were just a matter of "can schools or can't schools punish kids for speech outside of school?" For the reasons you outline, that type of oversimplification creates a false dilemma where either result is undesirable.
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Re: Don't overlook the obvious (Score:2)
"Will you still be this virulent in your defense of Free Speech when it's a 10-year old spouting off in a profanity-laced rant? How about 8 years old? If not, why?"
Yes. *Especially* if it's a child they have additional leeway since they aren't expected to choose their words carefully.
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Are you trying to be funny?
Re: Free speech (Score:2)
...papers please, Comrade.
That's the slippery slope you are proposing we set ourselves on.
And so (Score:2)
It's butt-ironic so many here, raging (properly) in the defense of the cheerleader, seem to be so willing to accept government-mandated censorship of harrassment and other new, novel expansions to the very limited First Amendment "exceptions" list, currently a set of three: exhortations to immenent dangerous lawlessness, child porn, or, in theory anyway, maybe blabbing about a D-Day invasion on its eve.
Even liable is an after the fact thing, after a court's judgement.
So, whoever wants to be the first gener
Schoolkids aren't private citizens (Score:3)
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It's a sad fact, but schoolkids are not fully private citizens from the school's point of view. They are almost akin to employees of the school, especially if they are in any sort of public-facing extracurricular activity, and DOUBLE especially if this is a sportsball activity. Sportsing is a major source of funding, bequests and prestige for schools. The major sports franchises want squeaky clean images for the places where they recruit. If the kids are allowed to speak out with unpopular / non-PR-vetted statements, the sportsball recruiters will recruit their sportsballers elsewhere.
Just ask Collin Kaepernick about speaking out
Does this have to be politicalized? (Score:3)
The court applied Tinker (substantial disruption) test and concluded that no such disruption occurred and therefore ruled the school board in the wrong.
Ah, here it is ... (Score:2)
Today's contribution to that all-important /. category, "Hardly tech-related news chosen to spur a flamewar in the comments and boost those sweet, sweet ad impressions."
Remember when this used to be a great tech news site? Pepperidge Farm remembers.
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Gimmie.. (Score:2)
..An F!
"F!"
Gimmie a U
"U!"
Gimmie a C!
"C!"
Gimmie a K!
'K!"
FUUCK THIS SCHOOL! YEAH!
Participation in non-required extracurricular... (Score:2)
This girl was participating in a voluntary extracurricular activity which is not required for graduation or, likely, counts into her GPA at all. While those who want to get into good universities generally need to have extracurricular activities, a student can replace cheerleading with another extracurricular activity. And, most (perhaps all) extracurricular activities have rules -- if you volunteer at the a soup kitchen and are required to wear a hairnet and refuse to do so, you will likely be told to leav