SCOTUS Backs Cheerleader, limits school...

[Taxing Matters]

Well if it isn't a bright line it seems, at least to me, a pretty well lit line.

To me, as a lawyer, it is certainly not a bright line or close to it. The opinion does not tell you exactly where the line is to be drawn, or give you precise rules for determining that. It tells schools that a lot of regulation of off campus speech is likely unconstitutional, but not all of it is. Thus, I can think of various situations in which it is not clear from the opinion which way it would go. Where the line is between the two will end up being developed by the lower courts in future litigation.

 

[quincy]

Well if it isn't a bright line it seems, at least to me, a pretty well lit line.





(b) But three features of off-campus speech often, even if not always, distinguish schools’ efforts to regulate off-campus speech. First, a school will rarely stand in loco parentis when a student speaks off cam- pus. Second, from the student speaker’s perspective, regulations of off- campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regu- late off-campus speech, for doing so may mean the student cannot en- gage in that kind of speech at all. Third, the school itself has an inter- est in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy. 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. Pp. 6–8.

The Court did not give examples of off-campus speech that the school can or cannot regulate. What the Court did do is caution schools about trying to over-regulate students’ off-campus speech.

The Supreme Court still has left it up to schools to determine when or if a student’s on-or-off campus speech violates a school policy in some way, and the Supreme Court still has left it up to other courts to determine when or if the schools overstep and infringe on a student’s right to free expression.

Case-by-case.