Attorney Rebecca Berfanger is a part-time journalist, part-time professor, and full-time First Amendment enthusiast. She and Attorney Marc Lopez recently had the chance to speak about the Supreme Court’s decision in Mahanoy Area School District v. B.L. and what it means for the future of free speech in public schools. What follows is a lightly edited transcript of their conversation.
It’s June 23, and a big United States Supreme Court case has come out where a cheerleader who didn’t make the cheerleading team took to Snapchat to say, F the school, F the team, F whatever—you know, she was just upset, as any 14-year-old would be, and the United States Supreme Court came back today and said the school should not have suspended her.
As I was looking at this case, I thought of my good friend, Rebecca, who teaches First Amendment. She’s a former journalist and still teaches journalism. So, Rebecca—introduce yourself, and let’s talk about this.
My name is Rebecca Berfanger. As Marc said, I am a—not a former journalist, because I still do freelance, right? But I’m not full-time. I used to be full-time before I went to law school. I currently teach an online First Amendment class at IU McKinney School of Law in Indianapolis. I teach a media law and ethics class to undergrad journalism students at Ball State. I’ve been doing that since 2015. I’ve been teaching at McKinney since 2019.
The First Amendment is just something that’s always been an interest of mine, because obviously, as a journalism student, I would have been studying First Amendment and all the fun and interesting things that go along with that. I just taught a class about First Amendment and school students, so this is all pretty fresh in my mind, and it’s just so interesting. It’s been a while since they’ve had one of these cases come up.
Schools have a bit more leeway than other institutions when it comes restricting free expression. Can you walk us through this?
So the first case the court references in the opinion is Tinker v. Des Moines. That case involved students in the late ’60s at the height of the Vietnam conflict, and a group of students wanted to protest the Vietnam War by wearing black armbands. The school said that armbands weren’t allowed, the students wore them anyway, and then they ended up getting suspended.
The students filed a First Amendment lawsuit, and their case made it all the way to the U.S. Supreme Court. The Court ultimately ruled that constitutional rights aren’t wiped out just because you’re in school. When students walk into a public school, they still have some First Amendment rights, and we also want kids to have some degree of freedom of expression.
Public schools shouldn’t be in the business of preventing speech before it happens. This is what the Supreme Court calls a prior restraint, and it prevents people from speaking openly and freely. So schools aren’t supposed to impose prior restraints, but there can still be consequences for expression that violates some school policy.
Following that, there’s a case called Hazelwood v. Kuhlmeier, which involved a student newspaper. In that case, the Court went a different way. It found that because the school newspaper was part of a school curriculum, it didn’t qualify as a public forum.
So in Hazelwood, the school principal had to sign off on everything the newspaper published. Some of the student journalists objected to the principal’s censoring of stories on teen pregnancy and children of divorce. The students argued free speech, but the Court said that schools have the right to censor student newspapers.
Finally and most recently, there’s a case called Morse v. Frederick, where a high school student in Alaska got in trouble for displaying a banner that said “Bong Hits 4 Jesus” across the street from a school assembly. The student had his banner confiscated and he was later suspended from school.
The student sued, and ultimately, the Supreme Court held that because this was a school-sponsored event, the principal was justified in her censorship. Even though marijuana had been decriminalized in Alaska by 2007, it still wasn’t allowed in schools, and the Court held that it was reasonable for the banner to be seen as promoting illegal drug use.
In the Tinker case, they talk about conduct that would have materially and substantially interfered with the requirements of appropriate discipline and the operation of the school. I’m not a First Amendment scholar, but that seems like a bar these schools would have to clear before censoring kids. Am I right about that?
That’s absolutely right, yes. Students still have this right to protest, as long as it’s not disrupting education or other people’s rights. This is part of Tinker, because the students in that case weren’t doing either of those things. They were just going to be wearing black armbands as a symbolic gesture.
If they were going to be doing something more disruptive—throwing chairs, or something like that—then you get into safety issues, and you’re also disrupting school. So yes, you’re absolutely right. That’s the line that they drew in Tinker.
Has there been any more recent case law about what counts as material or substantial interference? This cheerleader case that we’re talking about didn’t involve online bullying, but if students do bully others online, schools are allowed to react to that, am I right? Even though that’s off campus?
The Court doesn’t go that far here, but they do say this wasn’t a bullying case. Yes, it was social media, but it was her personal social media that she shared only with her circle of followers. So the Court goes into the fact that this was not on campus, it didn’t involve bullying, and it wasn’t directed at anybody in particular.
Typically, in these types of cases, free speech tends to win out. This decision was eight-to-one, so it’s not like it was a close call. Even down the road with different justices on the Court, I doubt the outcome would be much different than it was here.
I’m still kind of processing it myself, but first impression, I think you’re right. The Court draws out the facts to explain why in this particular case, this is how we find. Had she been using school equipment or something, I would think that that could be a different outcome, but she used her own phone. Had she specifically addressed her comments to students or faculty, that could also change things, but that wasn’t the case here. Also, the Court does go into how school shouldn’t be considered in loco parentis 24-7, because that is just too much control over a student.
Hold on! Back up! You’re speaking Latin. In loco parentis—break that down for us. What does it mean?
So in loco parentis literally means “in place of the parents.” It’s a concept that basically means the school is in charge at any school-related functions, which allows administrators to make decisions about discipline and education.
You’re a lawyer. You’re an excellent journalist. You teach this stuff. Do you think the Court got this right? I’m putting you on the spot.
Given all the facts, yes, I do. Given that she was off campus, that it was her social media, that she was not using any kind of school equipment, that it was not at a school function—I think there was enough distance between her and the school. The school shouldn’t be monitoring behavior 24-7. That’s way too much control over students.
One of my favorite quotes from the majority opinion reads: “America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the ‘marketplace of ideas.’ This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection.”
For me, the main takeaway there was America’s public schools are the nurseries of democracy. I love that phrase. Students should have this opportunity to express themselves and share ideas because childhood only happens once. You and I both know there will always be consequences for unpopular speech, but what I think the Court’s saying is, Students need this in their lives. They need a time where they can feel free to express their viewpoints, both popular and unpopular.
I love the phrase nurseries of democracy because you’re absolutely right. If we don’t get to exercise and embrace these rights when we’re young, we’re probably not going to do it when we’re older. I love this case, and I appreciate you spending time talking with me about it.
Rebecca, if people wanted to get ahold of you, what is the best way to do so?
They can find me on Twitter, @rjberf. My podcast is called Another’s Lyric and I occasionally put things up there. I usually do interviews, but sometimes it’s just me rambling on about what’s going on in the world. Hopefully I’ll get to do more of that. I’ve been more focused on teaching for the last several weeks.
I’m also an attorney. I do various types of legal practice that have nothing to do with First Amendment, but you can find me on my firm website, rjberfangerlaw.com.
The links to your website and your podcast will be in the show notes. Thank you so much, Rebecca!
All right, awesome.
I appreciate it!