Pictured: The United States Supreme Court in Washington, D.C. (Photo by Win McNamee/Getty Images)
In an 8-1 decision, the United States Supreme Court reminded a nation that seems to have forgotten freedom of speech about the importance of the First Amendment.
Justice Stephen Breyer wrote a thoughtful decision denying public schools the power to discipline high school students for talking the way high school students tend to talk among themselves outside of school. A 14-year-old cheerleader had made the mistake of sending a rant to a few friends, one of whose mothers was a coach.
This was not a broad decision that gave students the right to say or do anything outside of school. It was limited to cases in which students are disciplined for making statements that would generally be protected by the First Amendment and did not significantly affect the educational mission of the school. It would not apply, for example, to bullying or other harmful speech that would impact other students.
The significance of this decision goes well beyond the cheerleader and her juvenile gestures and words. It sends a powerful message that the Supreme Court is still in the business of protecting offensive speech, even as big tech, universities and many progressives have tried to justify pervasive censorship of speech with which they disagree. "Free speech for me, but not for thee" has become a common mantra of the hard left, and of those institutions that kowtow to the most radical elements of our society.
In a recent book, entitled, The Case Against the New Censorship: Protecting Free Speech from Big Tech, Progressives and Universities, I argued that the most dangerous form of contemporary censorship comes not from the government, but rather from private parties who themselves have the First Amendment right to censor speech with which they disagree. In other words, what we are experiencing is an attack not on the First Amendment itself, but rather on the culture of free speech that the First Amendment is designed to protect.
Although the cheerleader case involved a public school, its implications go beyond government. Many private universities, for example — such as Harvard, where I taught for 50 years — loudly proclaimed that although they are not technically bound by the First Amendment, they follow it to the letter. It will be interesting to see whether these private schools will now stop disciplining and denying admission to students and applicants based on statements they made on social media. Today many such institutions punish students and applicants for social media statements they may have posted when they were the same youthful age as the cheerleader. Nor is the punishment always based on neutral or objective standards. It tends to be imposed far more on conservative students who have violated political correctness norms of the left. It is rarely, if ever, imposed on left-wing students, especially students of color, who make statements that are deeply offensive to conservatives and/or white heterosexual men. The constitutional reach of the First Amendment permits such selective punishment by private institutions, but the culture of freedom of expression does not.
Justice Louis Brandeis correctly pointed out a century ago: "The Government is the potent, the omnipresent teacher...", to which may be added, "and the Supreme Court is the dean." When the government suppresses speech, the lesson is learned and often emulated by other institutions. This is especially true of our public schools, which, as Justice Stephen Breyer pointed out, are the nurseries of our Constitution.
Surprisingly, Justice Clarence Thomas was the sole dissenter. He usually can be counted on to defend freedom of speech and other core constitutional values, especially against partisan and selective attacks from the left. But Thomas is an originalist who interprets the Constitution in accordance with what the Framers intended, and he concluded — erroneously in my view — that the Framers placed a higher value on school discipline than on freedom of speech for students. The important point, however, is that eight justices — three liberals and five conservatives — sided with the First Amendment over the claims of school authorities.
Let us see, then, how these new censors respond to that new decision.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and author of the book, The Case Against the New Censorship: Protecting Free Speech from Big Tech, Progressives and Universities, Hot Books, April 20, 2021. His new podcast, "The Dershow," can be seen on Spotify, Apple and YouTube. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.