Thursday, April 29, 2021

Well, I Opened The Door...

So I'll walk through it. So there's where the technology matters:  "..more potential for off-campus speech to interfere with on-campus."  Why?  Because adults are aware of it?  I guarantee there was all manner of student gossip on and off campus that the adults were only vaguely aware of, if they were aware of it at all.  We knew who to talk to, and who the snitches were.  It wasn't air-tight, but off-campus speech had as much ability to interfere with on-campus then as it does now.

Indeed, this argument reminds me of the reactions you get when information about a criminal investigation is revealed publicly, and everyone chews over what it means and, more importantly, why aren't the authorities burying the person being investigated under the jail already?  And it's not just that the system doesn't work that way, but that the public doesn't have all the information the investigators have, and may not even understand what's really being investigated.  But has technology really made us more likely to interfere with prosecutions than newspapers did before?  Or just plain old gossip, which has always been with us, and always will be?

And then we back up to Kagan's hypotheticals.  Is email on-campus speech that the school can regulate?   A lot of people use technology (not just e-mail) to contact schools about things they don't like about the schools.  Is all of that subject to school discipline?  If a student tells her friend "school sux," in the privacy of her home (or on a phone call), is that okay?  But if she says it via e-mail, it's not?

What difference does communications technology make here?  Again, gossip spread like wildfire for millenia before social media came along, so don't tell me technology has fundamentally changed the game.  Just because you know about it now (you adults no longer in the loop of what kids are telling each other on or off campus without technology), doesn't mean it is a brave new world.  It is a slightly more public world, but isn't that what the First Amendment protects?*

Turns out Justice Sotomayor was asking my questions:
And Justice Breyer makes my other point: As I said: is it disruptive because the adults know about it? Because if I'd flipped the bird at my school with my friends about to laugh at me and cheer me on, but no adults were present, did I make a sound? Did I disrupt anything? An adult present would say I did; no adult present, so did I?

I remember an event from high school that bears on this.  The band drove across town to practice in the municipal football field.  On the way back, each of us driving our own cars, a friend and bandmember popped the clutch on his 289 Mustang (overpowered for it's size, IOW) and smoked his tires at a green light.  No one saw him but us kids.  Was that disruptive?  We talked about it for days. Indeed, we all drove so insanely back to school the police got involved and we barely escaped being cited by them.  Again:  disruptive?  We all knew about it.  I doubt our parents ever learned about it, at least until many, many years later.  If we'd put it on social media, would that make it disruptive?  Why?  Because now the adults knew about it?

What standard is that?

I haven't read Tinker, but the Justices think that's the guiding precedent here:
Not much here, admittedly, about on-line classes creating a "virtual campus" that extends as far as the student's location/access to the internet reaches, but I think it's still lurking behind the argument for the school's position.  If the argument is simply that students are on-line and that extends the school's reach, it also extends the school's burden.  Be careful what you wish for, in other words.  I can imagine many schools hoping the school loses this case, because a win would mean parents demanding punishment of students for what they say on-line.  It already happens now, but erase any ability for the school to refuse to get involved in the personal life of students, and bad results could flow.

I'm relying on this summary rather than the opinion proper in Tinker, but some of the argument from the Justices here does not comfort me:

The Court also held that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would "materially and substantially interfere" with the operation of the school. In this case, the school district's actions evidently stemmed from a fear of possible disruption rather than any actual interference.

So the students could lose their First Amendment rights when not on school property if flipping the bird and swearing about the cheerleading squad can be shown to potentially "materially and substantially interfere" with the operation of the school, or just the cheerleading squad?  Because Tinker involved students wearing black arm bands at school to protest the Vietnam War in 1965.  The school, the Court found, was only fearful of a disruption; one did not occur. Fear of an outcome is not enough to abrogate First Amendment rights.

How are those facts distinquishable from these?  Or are some of the Justices hinting they just want to gut Tinker, because schools rule? Tinker said fear of a bad outcome was not enough; is it now?

*I've since read this whole kerfluffle started because the daughter of a coach showed her the offensive Instagram posting.  This is all technology has changed:  that adults can't dismiss gossip about what their kids say another kid said so easily.  But is gossip off-campus a public school concern?

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