There is no such thing as an unimportant Supreme Court of the United States (SCOTUS) opinion. As someone who vigorously defends the media in First Amendment cases, I eagerly awaited the SCOTUS opinion in Maloney Area School District v B.L. The opinion was rendered on June 23, 2021, and I quickly read it looking for nuggets I could use in the representation of my clients. Although the case did not involve media, the 8-1 (Justice Thomas dissenting) decision importantly upheld First Amendment protections.

Defenders of the First Amendment will hail the decision as another important victory for free speech and will no doubt cite to the opinion authored by Justice Breyer and the significant statements concerning the importance of the First Amendment:

  • “America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect ‘the marketplace of ideas.’ That marketplace must include the protection of unpopular ideas, for popular ideas have less need for protection.”
  • “The First Amendment protects ‘even hurtful speech on public issues to ensure that we do not stifle public debate.’”

Take-Away

But all is not lost for school boards and districts. They should read the opinion and be encouraged that schools, teachers, and the public school community can still regulate speech even in off-campus circumstances. The SCOTUS did not hold that free speech for students ends once that student steps off school property. This becomes even more important in the era of COVID and distance learning and also as social media platforms are used more frequently by the younger generation- apparently I need to get the Snapchat app to learn more about what is happening.

It remains to be seen how courts balance the interplay between First Amendment free speech protections and the real concerns of

…school’s special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community”.

For now, I will hail the decision and insert a smile emoji…if I knew how.