Free Speech in the Age of Social Media

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The Supreme Court has been in the spotlight due to several recent controversies– among them the debate over the Court’s methods of interpretation. On the one hand, those that favor an originalist interpretation believe that the Constitution should be interpreted in the mindset of those who wrote it, strictly abiding by the original meaning of the text. On the other hand, those who prefer a living interpretation believe that constitutional law should evolve in response to the changing cultural values and norms in the United States. The Supreme Court has always fluctuated between which interpretation dominates– in general, Constitutional interpretations exist on a spectrum, and judicial decisions fall somewhere between strictly originalist or living perspectives.

Freedom of speech is guaranteed by the first amendment of the Constitution, which protects freedom of speech, assembly, and the press. The freedom of speech is part of the Bill of Rights, and is widely considered to be one of the cornerstones of American democracy. While any case decided by the Supreme Court has profound implications for the future of American law, cases pertaining to protections enumerated in the Bill of Rights are especially significant. The Supreme Court has not consistently interpreted the right to free speech. Specifically, debate persists as to which speech is constitutionally protected, and whether the environment of the speech factors into its protection.

In the case Tinker v. Des Moines (1969), a group of students sued their school on the question of free speech guarantees in a public school setting. The students involved planned to wear black armbands to protest the Vietnam War, but the principals banned the armbands because the protest was deemed political and distracting for a public school environment. The students wearing armbands were sent home, and subsequently sued the school through their parents.

The Supreme Court ruled in favor of the students (Tinker) in a 7-2 decision, holding that the “armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it.” According to the Court’s ruling, students retained the right of free speech unless the speech would “substantially interfere” with school activity. Because the school banned the armbands before any actual disruption occurred, the limitation on freedom of speech was unconstitutional. This ruling aligned with Shenck v. United States (1919), which found the Espionage Act of 1917 unconstitutional because the speech in question did not constitute a “clear and present danger.”

However, Tinker was a departure from previous rulings directly relating to public schools. Up until Tinker, courts generally would “not interfere with the exercise of discretion by school directors” unless there was a clear crime. This influential decision was not unanimous. Justice Black filed a dissent in the Tinker ruling, writing that the school was within their right to discipline students for wearing the arm bands because the protest distracted students, reducing the ability of the school to do its job. This view of free speech promotes the idea that the Constitutional right to free speech does not translate to a constant protection of any speech; there are settings (like public schools) which should be permitted to restrict speech.

In 2021, the Supreme Court decided the case Mahanoy Area School District v. B.L, relying on the Tinker case as precedent. The case circled around the freedom of speech of Brandi Levy, a teenager and public school student who was removed from the junior varsity cheerleading squad after the school was alerted to one of her profanity-laced social media posts. The post took place off of school grounds, using the F-word to express discontent with the cheerleading squad’s selection process, and was originally posted to Levy’s private social media account. Levy was 14 in 2017 at the time of the post, and was supported by the ACLU in her right to free (if distasteful) speech throughout her case. In an 8-1 decision, the justices ruled with Levy in her right to free speech, restricting the authority of public schools in regulating speech away from campus. Justice Thomas filed the dissent in the Mahanoy Area School District case, citing the historical support for public schools having the authority to discipline students and restrict speech under similar circumstances.

Justice Breyer left some room for further discussion in the ruling, writing that the ruling allows for some regulation of speech off-campus in the case of threats, rule-breaking, and severe bullying/harassment. This wiggle room has implications for allowing the future prosecution of student speech surrounding threats of violence– a contested topic in the modern age of school shooting and bomb threats.

The Court’s latest interpretation of free speech has the potential to lay the groundwork for new laws and regulations regarding the First Amendment and Constitutional protections for public school students in general. In ruling with Brandi Levy, the Court is not just protecting the right of students to express discontent with their school, but also protecting student dissent. This extension of the precedent in Tinker is notable for a Court that has recently been slammed for ignoring precedent (as in the case of Dobbs v. Jackson Women’s Health Organization (2021), which denied women a Constitutional right to abortion).

Furthermore, it is significant that the Court selected Justice Breyer to write the majority opinion, as one of the liberal members of the 6-3 minority currently on the Court. While public views of the Supreme Court have declined precipitously following the verdict in Dobbs, the decision in Mahanoy may hold hope for the future. If the Supreme Court can compromise and deliver a strong 8-1 opinion in favor of the protection of free speech, then it may have a more popular (and perhaps liberal) direction than has been recently publicized.

Greta Filor is a junior at Brown University, double concentrating in Economics and History. She is a staff writer for the Brown Undergraduate Law Review and can be reached at greta_filor@brown.edu.