Category Archives: First Amendment

1. Justice Ketanji Brown Jackson raises eyebrows with comment that First Amendment 'hamstrings' government  Fox News
2. 'Hamstringing the Government': A Viral Narrative Distorts Ketanji Brown Jackson's Understanding of Free Speech  Reason
3. Supreme Court examines whether government can combat disinformation online  NPR

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Justice Ketanji Brown Jackson raises eyebrows with comment that First Amendment 'hamstrings' government - Fox News

Part of the Murthy v. Missourichallengers' claim is that the First Amendment bans the government from even "substantially encouraging" private entities to block user speech. And as I noted in the post below, I appreciate the difficulties with this claim (though I also appreciate its appeal).

Here, though, I wanted to repeat one narrow observation that I had made some time ago. I'm not sure how far it goes, but it struck me as worth noting.

Consider this passage from the oral argument by the federal government lawyer:

I'm saying that when the government persuades a private party not to distribute or promote someone else's speech, that's not censorship; that's persuading a private party to do something that they're lawfully entitled to do, and there are lots of contexts where government officials can persuade private parties to do things that the officials couldn't do directly.

So, for example, you know, recently after the October 7th attacks in Israel, a number of public officials called on colleges and universities to do more about anti-Semitic hate speech on campus. I'm not sure and I doubt that the government could mandate those sorts of changes in enforcement or policy, but public officials can call for those changes.

The government can encourage parents to monitor their children's cell phone usage or Internet companies to watch out for child pornography on their platforms even if the Fourth Amendment would prevent the government from doing that directly.

All of those are contexts where the government can persuade a private party to do something that the private party's lawfully entitled to do, and we think that's what the government is doing when it's saying to these platforms, your platforms and your algorithms and the way that you're presenting information is causing harm and we think you should stop .

A forceful position, I think; and yet note that, when it comes to many Fourth Amendment situations, the analysis may actually be quite different.

Say that you use your rights as a landlord, set forth in a lease, to visit and inspect a tenant's apartment; see evidence that he's committing a crime; and report it to the police. You haven't violated the Fourth Amendment, because you're a private actor. (That may be true even if you have committed some tort or crime, see, e.g., United States v. Phillips (9th Cir. 2022); Burdeau v. McDowell (1921), but often your visit and your looking around may actually be entirely legal.) And the police haven't violated the Fourth Amendment, because they didn't perform the search. The evidence from this "private search" can be used against the tenant.

But now say that the police ask you to do this. That inspection may become a search governed by the Fourth Amendment. "[I]f a state officer requests a private person to search a particular place or thing, and if that private person acts because of and within the scope of the state officer's request," then the search will be subject to the constitutional constraints applicable to searches by the government. State v. Tucker (Or. 2000) (applying the Oregon Constitution's Fourth Amendment analogue) (police request to tow truck driver to search items in car being towed), followed by State v. Lien (Or. 2019) (police request to trash company to pick up a person's trash in a particular way that would facilitate its being searched); see also United States v. Gregory (E.D. Ky. 2020) (similar fact pattern to Lien). "Police officers may not avoid the requirements of the Fourth Amendment by inducing, coercing, promoting, or encouraging private parties to perform searches they would not otherwise perform." George v. Edholm (9th Cir. 2014) (police request to doctor to do a rectal search) (emphasis added); see also United States v. Ziegler (9th Cir. 2007) (police request to employer to search employee's work computer).

Likewise, "In the Fifth Amendment context, courts have held that the government might violate a defendant's rights by coercing or encouraging a private party to extract a confession from a criminal defendant." United States v. Folad (6th Cir. 2017) (emphasis added); see also United States v. Garlock (8th Cir. 1994). More broadlyand here we come to precedents that were indeed raised in the Murthy oral argumentthe Supreme Court held in Blum v. Yaretsky (1982), a Due Process Clause case, that "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." And in Norwood v. Harrison (1973), an Equal Protection Clause case, it viewed it as "axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish."

To be sure, the inducement, and encouragement, and promotion in Norwood involved the provision of tangible benefits (there, textbooks given to racially segregated schools, alongside other schools) and not just verbal encouragement. By itself, the line in Norwood may thus not carry much weight. But the Fourth Amendment cases in which government-encouraged or government-requested private searches became subject to the Fourth Amendment did involve just verbal encouragement.

Again, I'm not sure what to make all this. Perhaps the government's trying to persuade private landlords to engage in searches should indeed be viewed as government action that potentially violates the Fourth Amendment, and the government's trying to persuade private platforms to restrict user speech should not be viewed as government action that potentially violates the First Amendment. But since the Fourth Amendment came up in the argument, I thought I'd note again this potential analogy.

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The First Amendment, the Fourth Amendment, and Substantial Encouragement - Reason

1. Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says  The Associated Press
2. Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says  AOL
3. Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says  MSN

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Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - The Associated Press

Published: March 21, 2024

Greetings,

The Keller Centerhas organized an upcoming presentation and discussion of potential interest to PSCI students, faculty and staff. Mike McDevitt(from CU Journalism) and Scott Skinner-Thompson(CU Law) will present the first of a planned semesterly series of "State of the First Amendment"events on the five 1A freedoms, starting with free speech. Expect discussion not only of current cases and controversies in First Amendment law and jurisprudence but also of broader free speech issues in their social and political dimensions, including campus issues involving limits on or threats to political speech and academic freedom.

The event will be held in UMC 382-84-86on Wednesday, April 3, with doors opening at 3 pmand the presentation starting at 3:15(ending at 4:45, reserving the last 30 minutes for Q&A and discussion). Refreshments will be available. The event is open to all within the CU community (including alums) with no requirement for prior registration. Please share this announcement with your students - I've attached a .jpg of our promotional poster to facilitate sharing through lecture slides.

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The State of the First Amendment: Free Speech - University of Colorado Boulder

A majority of the Supreme Court appeared on Monday to embrace arguments by the National Rifle Association that a New York State official violated the First Amendment by trying to dissuade companies from doing business with it after a deadly school shooting.

The dispute, which began after a gunman opened fire in 2018 at Marjory Stoneman Douglas High School in Parkland, Fla., was one of two cases on Monday that centered on when government advocacy crosses a line to violate the Constitutions protection of free speech.

After the shooting, which killed 17 students and staff members, Maria Vullo, then a superintendent of the New York State Department of Financial Services, said banks and other insurance companies regulated by her agency should assess whether they wanted to continue providing services to the N.R.A.

The gun rights group sued, accusing Ms. Vullo of unlawfully leveraging her authority as a government official.

It was a campaign by the states highest political officials to use their power to coerce a boycott of a political advocacy organization because they disagreed with its advocacy, said David D. Cole, the national legal director for the American Civil Liberties Union, who argued on behalf of the N.R.A., adding that the officials actions had cost the group millions of dollars.

The lawyer for the New York officials, Neal K. Katyal, pushed back, arguing that state officials were performing their ordinary duties. We think that it was an exercise of legitimate law enforcement, he said.

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Justices Seem Likely to Side With N.R.A. in First Amendment Dispute - The New York Times

There are several recent signs that the federal judiciarys center right is losing patience with its far right.

Last week, a policymaking body within the judiciary announced new steps to combat judge shopping, a practice that has allowed Republican litigants to choose to have their cases heard by partisan judges who are well to the right of even the median Trump appointee. The Supreme Court has also heard several cases in its current term where it appears likely to reverse rulings made by the United States Court of Appeals for the Fifth Circuit, a MAGA stronghold that frequently hands down decisions that appear designed to sabotage the Biden administration.

On Monday, the Supreme Court held oral arguments in one of these Fifth Circuit cases, known as Murthy v. Missouri, where the lower court handed down a sweeping injunction forbidding much of the federal government from having any communications at all with social media companies. A majority of the justices appeared very unlikely to sustain that injunction on Monday, with Justice Brett Kavanaugh repeatedly noting that the Fifth Circuits approach would prevent the most routine interactions between government officials and the media.

Murthy was one of two cases heard by the justices on Monday involving so-called jawboning cases where the government tried to pressure private companies into taking certain actions, without necessarily using its coercive power to do so. The other case, known as National Rifle Association v. Vullo, involves a fairly egregious violation of the First Amendment. Based on Mondays argument, as many as all nine of the justices may side with the NRA in that case. (You can read our coverage of the NRA case here.)

Most of the justices, in other words, appeared eager to resolve both cases without significantly altering their Courts First Amendment doctrines, and without disrupting the governments ability to function. Thats good news for the NRA, but also good news for the Biden administration.

The general rule in First Amendment cases is that the federal government may not coerce a media company into changing which content it publishes, but it can ask a platform or outlet to remove or alter its content. Indeed, as Kavanaugh pointed out a few times during the oral argument, if the government were not allowed to do so, White House press aides and the like wouldnt be allowed to speak to reporters to try to shape their coverage.

In Murthy, various officials throughout the federal government had many communications with major social media platforms, where the officials either asked the platforms to remove certain content or provided them with information that convinced the platforms to do so.

These communications concerned many topics. The FBI, for example, frequently contacts social media platforms to warn them about criminal or terroristic activity that is occurring online. The Cybersecurity and Infrastructure Security Agency (CISA) flags social media content for the platforms that contains election-related disinformation, such as false statements about when an election will take place. The White House sometimes asks social media companies to remove accounts that falsely impersonate a member of the presidents family.

Many of these communications also involved government requests that the platforms pull down information that contains false and harmful health information, including misinformation about Covid-19. And these communications were center stage during the Murthy oral argument the Murthy plaintiffs include several individuals who are upset that their content was removed because the platforms determined that it was Covid misinformation.

These plaintiffs were able to identify several examples where government officials were curt, bossy, or otherwise rude to representatives from the social media companies when those companies refused to pull down content that the government asked them to remove. Notably, however, neither these plaintiffs nor the Fifth Circuit identified a single example where a government official threatened some kind of consequence if a platform did not comply with the governments requests.

Instead, the Fifth Circuit appeared to complain about the fact that the government has so many communications with social media companies. It claimed that the Biden administration violated the First Amendment because government officials entangled themselves in the platforms decision-making processes, and ordered the government to stop having consistent and consequential communications with social media platforms.

Its unclear what that decision even means how many times, exactly, may the government talk to a social media company before it violates the Fifth Circuits order? and at least six of the justices appeared frustrated by the Fifth Circuits ham-handed approach to this case.

Justices Elena Kagan and Kavanaugh seemed especially frustrated with the Fifth Circuits attempt to shut down communication between the government and the platforms, and for the same reason. Both Kagan and Kavanaugh worked in high-level White House jobs Kagan as deputy domestic policy adviser to President Bill Clinton, and Kavanaugh as staff secretary to President George W. Bush and both recoiled at the suggestion that the White House cant try to persuade the media to change what it publishes.

Kavanaugh, a Republican appointed by Donald Trump, even rose to the governments defense after Justice Samuel Alito attacked Biden administration officials who, Alito claimed, were too demanding toward the platforms.

After Alito ranted about what he called constant pestering by White House officials who would sometimes curse at corporate officials or treat them like subordinates, Kavanaugh said that, in his experience, White House press aides often call up members of the media and berate them if they dont like the presss coverage.

Similarly, Kagan admitted that like Justice Kavanaugh, Ive had experience encouraging people to suppress their own speech after a journalist published a bad editorial or a piece with a factual error. But this sort of routine back-and-forth between White House officials and reporters is not a First Amendment violation unless there is some kind of threat or coercion. Why should the rule be any different for social media companies?

So Benjamin Aguiaga, the lawyer trying to defend the Fifth Circuits order, arrived at the Court this morning facing an already skeptical bench. And his disastrous response to a hypothetical from Justice Ketanji Brown Jackson only dug him deeper into a hole.

Jackson imagined a scenario where various people online challenged teenagers to jump out of windows and that there actually was an epidemic of teens seriously injuring themselves by doing so. Could the government, she asked, encourage the platforms to pull down content urging young people to defenestrate themselves?

Aguiagas answer was no an answer that provoked an incredulous Chief Justice John Roberts to restate the question and ask Aguiaga to answer it again. And yet the lawyer still clung to his view that the government cannot encourage Twitter or Facebook to remove content urging people to hurl themselves out of windows.

It is likely, for what its worth, that at least two justices will dissent. Last October, the Court temporarily blocked the Fifth Circuits Murthy decision while this case was being litigated before the justices, but it did so over objections by three justices: Alito, plus Justices Clarence Thomas and Neil Gorsuch.

On Monday, Gorsuch did ask a few questions suggesting that he may have reconsidered his previous position because he now views the Fifth Circuits injunction as too broad, but Thomas and Alito appeared determined to back their fellow members of the judiciarys far right.

So, while an alliance between the Courts center left and its center right appears likely to hold in the Murthy case, that could change rapidly if former President Donald Trump is returned to office and gets to replace some of the current justices with members of the Fifth Circuit (or with other judges who share Thomas and Alitos MAGA-infused approach to judging).

But for the time being, at least, most of the justices appear to recognize that the government needs to function. And that means that the Fifth Circuits attempt to cut off communications between the Biden administration and the platforms is likely to fail.

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Supreme Court Justice Kavanaugh loses patience with the judiciarys far right - Vox.com

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The Supreme Court will hear arguments on Monday in a key First Amendment case brought by the National Rifle Association (NRA) that has linked unlikely bedfellows together to challenge a government officials action they say trampled on their First Amendment rights.

Before the high court is the case National Rifle Association of America v. Vullo, which questions whether a government regulator threatens regulated entities with adverse regulatory actions if they do business witha controversial speaker, allegedly because of the government's own hostility to the speaker's viewpoint, violates the First Amendment.

The NRAfiled its 2018 challengefollowing the revelation that former New York State Department of Financial Services Superintendent Maria T. Vullo, at the order of former New York Gov. Andrew Cuomo, allegedly blacklisted the NRA effectively forcing banks and insurers to cut ties with the group.

NRA SEES OUTPOURING OF SUPPORT IN SCOTUS CASE CHARGING BLUE STATE REGULATOR WITH 'BLACKLISTING'

The Supreme Court will hear arguments in National Rifle Association of America v. Vullo on Monday. (STEFANI REYNOLDS/AFP via Getty Images)

She sent "guidance letters" in 2018 to banks and insurance companies encouraging them to sever ties with the NRA and other pro-Second Amendment organizations, citing reputational risks. The guidance letters were issued shortly after the shooting at Marjory Stoneman Douglas High School in Parkland, Florida, that killed 17 students and staff.

The lawsuit alleges that Vullo made "backroom threats" against regulated firms, accompanied by offers of leniency on unrelated infractions if regulated entities would agree to blacklist the NRA.

The Supreme Court in November agreed to hear National Rifle Association of America v. Vullo, after a federal appeals court in 2022 dismissed the group's lawsuit, arguing Vullos actions were reasonable.

Dozens of political leaders, lawmakers, scholars and organizations have filed or joined amicus briefs in support of the NRAs position, including the American Civil Liberties Union (ACLU) a group that ideologically opposes the NRA but said it is "proud" to defend the gun groups "right to speak."

NRA PRAISES COURT ORDER STRIKING DOWN DRACONIAN BLUE STATE'S HANDGUN LAW

"While the ACLU disagrees with the NRAs advocacy, we are proud to defend its right to speak," ACLU Legal Director David Cole, who will argue the case for the NRA, said in a statement. (STEFANI REYNOLDS/AFP via Getty Images)

"While the ACLU disagrees with the NRAs advocacy, we are proud to defend its right to speak," ACLU Legal Director David Cole, who will argue the case for the NRA, said in a statement.

"Public officials cannot be allowed to abuse their regulatory powers to blacklist an organization just because they oppose its political views. If New York is allowed to do this to the NRA, it will provide a playbook for other state officials to abuse their authority to target groups they dont like," he said.

BIDEN DOJS GUN LAW BLUEPRINT WILL IMPACT ABILITY TO DEFEND YOURSELF: GUN RIGHTS GROUPS

The Supreme Court on Feb. 28, 2024 in Washington. (AP Photo/Jacquelyn Martin, File)

"This case is important to the NRA and all advocacy organizations who rely upon the protections of the First Amendment," says NRA counsel William A. Brewer III. "Many groups will benefit when the Court reminds government officials that they cannot use intimidation tactics, backdoor censorship, or regulatory blacklisting to silence those with whom they disagree."

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The Supreme Court will hear arguments on Monday starting at 10:00 a.m.

Fox News Digital's Emma Colton contributed to this report.

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Supreme Court to hear First Amendment challenge to New York's financial 'blacklisting' of NRA - Fox News

The National Rifle Association may soon achieve its first significant win in quite a while.

This week, the Supreme Court heard oral arguments in the struggling gun-rights behemoths First Amendment case against a former New York financial regulator. While predicting the outcome of a case based solely on what happens in arguments is perilous, the questions asked by the justices can provide some insight into how they feel about the case. In NRA v. Vullo, a sizable majority of the Court seemed on board with the idea the gun groups rights were abused.

Lets start with the most vocal justices.

Those would be Justice Samuel Alito and Justice Kentaji Brown Jackson. Perhaps unsurprisingly, their questions tended to be aimed in opposite directions.

Alito focused much of his time on the line between government persuasion and coercion. He not only seemed to believe that Maria Vullos attempt to convince insurance companies to cut off business with the NRA over its gun promotion effort was a violation of the First Amendment but a pretty overwrought one at that.

They gilded the lily or whatever the phrase is, he said at one point. I mean, they were ham-handed about this. The people up in New York are rubes. They dont really understand how to do this.

The thrust of most of his questioning was not whether Vullos letter warning the companies about the reputational risk of working with the NRA or her alleged February 18th, 2018 meeting with a Lloyds of London executive telling them shed go easier on the companys infractions if they dropped the gun group were coercive, but whether a more sophisticated approach would also violate the First Amendment. He was highly skeptical the guidance letter Vullo sent warning insurers about the NRAs politics werent clear threats on their own.

I mean, seriously, you think that sophisticated insurance companies are not taking into account adverse risks? he asked Vullos lawyer. They probably had heard about the Parkland shooting and the aftermath of it. You think they hadnt already taken this into account, and didnt they already know all the power that Ms. Vullo had over them?

In contrast, Justice Jackson was more focused on the idea that Vullos actions stemmed primarily from a legitimate violation of the law by the NRA and its insurers. She was concerned that an overly broad application of the NRAs defense could effectively make it impossible to regulate the conduct of advocacy groups.

What Im worried about is your position ultimately reducing to anytime a regulator enforces the law against an entity that does business with an advocacy organization, we have a First Amendment violation, she said. Because it seemed like your answer to him was, well, what gets this into the First Amendment column, unlike other scenarios, is that the NRA advocates for guns, and its an advocacy organization, and so action taken against it makes it a First Amendment violation.

Justice Elana Kagan brought up a similar concern about Vullos warnings over the reputational risk of working with the NRA.

But that idea of reputational risk, Mr. Cole, that is a real idea, right? It wasnt invented for the NRA, she said. There is a view that bank regulators have that companies are supposed to look at their reputational risks. It might be that gun advocacy groups, gun companies do impose reputational risks of the kind that bank regulators are concerned about.

Justice Sonya Sotomayor also questioned the idea that the consent decrees the insurance companies signed agreeing to end all business with the NRA were a problem in and of themselves.

Im not sure the consent decrees could be viewed as selective prosecution when there is no question, I dont believe that the Carry Guard insurance policies had provisions that violated New York law, she said. They reimbursed for criminal activity, and they reimbursed for intentional acts, which New York insurance law clearly says you cant do.

Still, all three liberal justices expressed concerns with Vullos actions.

While Sotomayor noted some parts of the insurance offered by the NRA and its partners were illegal, she questioned why Vullo forced them to stop doing business with the NRA altogether nationwide.

These affinity programs could have been altered, she said. And these consent decrees and what she was seeking was a ban, even of potentially lawful affinity programs. I mean, if they had taken out the intentionality provision or the criminal activity provision and just insured for accidents with guns or things like that, those would have been lawful. She went further

Kagan implied that Vullos February 18th meeting with Lloyds was an easier case to make as a First Amendment violation than the letters she sent.

I put the Lloyds meeting in a different category and was really more interested in I think that this is a closer one just because if reputational risk is a real thing, she said of Vullos reputation risk warning, and if gun companies or gun advocacy groups impose that kind of reputational risk, isnt it a bank regulators job to point that out?

Similarly, Justice Jackson questioned whether the situation fits the precedent established in Bantam Books v. Sullivan because Vullo was pressuring insurance companies rather than bookstores or other speech-based businesses. However, she was more sympathetic to the idea what Vullo did might constitute retaliation based on the NRAs speech.

Justice Gorsuch suggests that you might have a retaliation claim, which is a kind of First Amendment, its a species of First Amendment, she said. You allege it in this case. And that makes perfect sense, right, that theyre theyre punishing me because of my speech. Thats retaliation.

Speaking of Justice Neil Gorsuch, he questioned the governments insistence that the first four paragraphs of Vullos guidance letter would have been acceptable. The government agreed Vullos February 18th meeting crossed the line but tried to argue most of the guidance letter didnt because it was persuasion rather than coercion. However, Gorsuch noted that the letter didnt end after four paragraphs and included an implicit threat of government action.

You agree, though, the fifth paragraph changes the calculus? Gorsuch said.

Justice Brett Kavanaugh shared Jacksons note that Bantam was more straightforward because the third party being pressured was directly involved in distributing somebody elses speech. He said that made the case a bit unusual but concluded the distinction didnt matter.

I take your point that Bantam Books, as long as the ultimate action is against speech, it doesnt matter that the intermediary is not itself a speech business, he told the NRAs lawyer.

He seemed to take the governments opposition to Vullo as a significant marker in the case, too.

Mr. Katyal, its a bit jarring, I guess, for me that the Solicitor General is on the other side from you in this case, given that the Solicitor General represents the United States, and as we know from the last case, has a strong interest in not expanding Bantam Books, Kavanaugh told Vullos lawyer. So how should we think about that?

There were fewer clues about how the other conservative justices were leaning when they questioned the lawyers in the case. Justice Amy Coney Barrett asked primarily about procedural issues with the case. Justice Clarence Thomas only asked four questions, though one seemed skeptical of the idea that Vullos actions were in response purely to the NRAs actions rather than its beliefs.

Would you spend just a small amount of time explaining why you think the conduct, all of this is infected by, I guess, the one illegal insurance product involved here? Thomas asked.

The only question Chief Justice John Roberts that might provide some insight into his thinking dealt with, again, the idea that Vullos actions could be justified because of the underlying issues with the NRAs insurance policies.

Youre not suggesting that if, for example, after the initial conduct by Ms. Vullo and the reaction of the National Rifle Association, if she instructed her staff to go through these policies and find something, you know, that violates some regulation in there, that she could then defend against the basis of terminating all that, on the basis of those newly discovered violations? he asked Vullos lawyer.

Another common thread that several justices touched on that could give reason to think the NRA stands to win the case stems from the stage the case is in. The justices wont be deciding the case on the merits of the underlying claims. Instead, the Supreme Court is merely deciding whether to dismiss the claims without further litigating the allegations.

So, the standard for review is much lower. As Justice Alito pointed out, all the NRA has to do is show there is a plausible First Amendment claim. And thats with the assumption the events at issue happened the way the NRA alleges.

Mr. Katyal, youre shifting the burden to them, Justice Alito said. This is a First Amendment case. All they need to do is to show that the desire to suppress speech was a motivating factor.

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Analysis: SCOTUS Oral Arguments Bode Well For NRA First Amendment Claim [Member Exclusive] - The Reload

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Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - KXLY Spokane

From B.B. v. Capistrano Unified School Dist. (C.D. Cal.), decided last month but just posted on Westlaw:

When B.B. was in first grade, she made a drawing (the "Drawing") that included the phrase "Black Lives Mater [sic]" printed in black marker. Beneath that sentence, B.B. added "any life," in a lighter color marker. B.B. gave the Drawing to a classmate, M.C., who took it home. When M.C.'s mother saw the Drawing, she emailed the school, stating that she would not "tolerate any more messages given to [M.C.] at school because of her skin color" and that she "trust[ed]" the school would address the issue.

Later that day, the school's principal, Becerra, approached B.B. at recess. Becerra told B.B. that the Drawing was "inappropriate" and "racist," and that she was not allowed to draw anymore. {At the hearing, the parties disputed whether B.B. testified that Becerra told her the Drawing was racist. Although B.B.'s deposition is unclear, the Court must construe her testimony in the light most favorable to B.B.} He also instructed B.B. to apologize to M.C., which B.B. did twice.

When B.B. returned to class from recess, two of her teachers told her that she was not allowed to play at recess for the next two weeks. The teachers did not tell B.B. the reason she could not play at recess, and there is no direct evidence that Becerra directed B.B.'s teachers to punish B.B. in this way.

Plaintiff [B.B.'s mother] argues that Becerra's response to the Drawingcompelling her to apologize to M.C., prohibiting her from drawing other pictures for her friends, and preventing B.B. from playing at recess for two weeksviolates her First Amendment right to free speech. However, this schoolyard dispute, like most, is not of constitutional proportions.

Although students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," their rights are "not automatically coextensive with the rights of adults in other settings." For school children, the First Amendment must be "applied in light of the special characteristics of the school environment." Because educators best understand those special characteristics, courts give "educators substantial deference as to what speech is appropriate." "[T]he determination of what manner of speech is inappropriate" at school "properly rests with the school board, rather than with the federal courts."

"Under Tinker [v. Des Moines Indep. School Dist. (1969)], schools may restrict speech that 'might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities' or that collides 'with the rights of other students to be secure and let alone.'"

Much of the caselaw applying Tinker focuses on its "substantial disruption" prong. As a result, "[t]he precise scope of Tinker's 'interference with the rights of others' language is unclear." However, the cases reveal three principles that help identify when speech unduly infringes on the rights of other students such that it is not protected under the First Amendment.

First, where speech is directed at a "particularly vulnerable" student based on a "core identifying characteristic," such as race, sex, religion, or sexual orientation, educators have greater leeway to regulate it. Although speech that is "merely offensive to others" cannot be regulated, courts have recognized that denigrations based on protected characteristics do more than offendthey can inflict lasting psychological harm and interfere with the target student's opportunity to learn. These types of denigrations, moreover, have little countervailing benefit to the learning environment. Derogatory speech is therefore "not the conduct and speech that our educational system is required to tolerate, as schools attempt to educate students about 'habits and manners of civility' or the 'fundamental values necessary to the maintenance of a democratic political system.'" Thus, "[w]hatever the outer boundary of Tinker's interference inquiry," the case law "establish[es] that students have the right to be free" from speech that "denigrate[s] their race" while at school.

Second, the mere fact that speech touches upon a politically controversial topic is not sufficient to bring it under the First Amendment's protective umbrella. In Harper, for instance, the district court denied a preliminary injunction brought by a student who was told that he could not wear a homophobic shirt to school. The Ninth Circuit affirmed the district court despite the "political disagreement regarding homosexuality" that existed at the time. At the same time, however, school administrators must have a justification above the "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint" before they may regulate student speech.

Third, and most pertinent for the present case, age is an important factor when deciding whether speech is protected. In Tinker, the Court held that a high school could not ban students from wearing black arm bands that signaled opposition to the Vietnam War. The Court emphasized that denying students this type of expressionwhich neither interfered with the school environment nor intruded on other students' rightsmay coerce political orthodoxy and "strangle the free mind" of high school students. An elementary school, by contrast, is not a "marketplace of ideas." Thus, the downsides of regulating speech there is not as significant as it is in high schools, where students are approaching voting age and controversial speech could spark conducive conversation. As the Seventh Circuit has recognized, elementary schools "are more about learning to sit still and be polite, rather than robust debate." To fulfill that mission, elementary schools require significant latitude to discipline student speech. Indeed, "muchperhaps mostof the speech that is protected in high grades" may be regulated in elementary schools.

"The targeted student's age is also relevant to the analysis." Younger students may be more sensitive than older students, so their educational experience may be more affected when they receive messages based on a protected characteristic. Relatedly, first graders are impressionable. If other students join in on the insults, the disruption could metastasize, affecting the learning opportunities of even more students.

Giving great weight to the fact that the students involved were in first grade, the Court concludes that the Drawing is not protected by the First Amendment. B.B. gave the Drawing to M.C., a student of color. The Drawing included a phrase similar to "All Lives Matter," a sentence with an inclusive denotation but one that is widely perceived as racially insensitive and belittling when directed at people of color. Indeed, M.C.'s mother testified that those kinds of messages "hurt." Soon after discovering the Drawing in M.C.'s backpack, M.C.'s mother emailed the school, and stated that she believed her daughter received the Drawing because of her race. Based on this email and the content of the Drawing, Becerra concluded that the Drawing interfered with the right of M.C., a first grader, "to be let alone."

{The phrase "All Lives Matter" gained popularity in response to the growth of the Black Lives Matter movement ("BLM"), a social movement protesting violence against Black individuals and communities, with a focus on police brutality. "All Lives Matter" can be seen as an offensive response to BLM because that phrase obscures "the fact that [B]lack people have not yet been included in the idea of 'all lives.'"}

Undoubtedly, B.B.'s intentions were innocent. B.B. testified that she gifted the Drawing to M.C. to make her feel comfortable after her class learned about Martin Luther King Jr. But Tinker does not focus on the speaker's intentions. Rather, it examines the effects of speech on the learning environment and other students, giving deference to school officials' assessments about what speech is acceptable in an educational setting. Such deference to schoolteachers is especially appropriate today, where, increasingly, what is harmful or innocent speech is in the eye of the beholder. Teachers are far better equipped than federal courts at identifying when speech crosses the line from harmless schoolyard banter to impermissible harassment. Here, Becerra concluded that the Drawing, although well-intentioned, fell on the latter side of that line.

A parent might second-guess Becerra's conclusion, but his decision to discipline B.B. belongs to him, not the federal courts. Elementary schoolteachers make thousands of disciplinary decisions on American playgrounds every day. Federal court review of all these decisions would unduly interfere with school administration and overwhelm the judiciary. Regardless of whether Becerra was right or wrong, the decision is his, and this schoolyard disputelike mostdoes not warrant federal court intervention.

This seems to me unconstitutional, even in first grade. One can debate whether the First Amendment should apply to disciplinary decisions by K-12 schools (Justice Black, back in his day, argued it shouldn't, and so has Justice Thomas more recently); one can likewise debate whether it applies in the lowest grades. But the courts have not so held, and the premise of this particular court opinion seems to be that some first-grader speech, if approved of by a federal court, would indeed be protected. (The standards courts have set, which is that speech can be punished if it "materially disrupts classwork," sets a much higher bar that seems to be shown here.)

Rather, the court's view here seems to be that this viewpointsimply because it "can be seen" as dissenting from what some see as the only proper response to racial problemsis stripped of First Amendment protection. The "Black Lives Matter" slogan is accepted as the one orthodoxy, and any perceived dissent from the view that black lives should be specially stressed in this context can be forbidden. Seems quite inconsistent with the Court's conclusion that "In our system, state-operated schools may not be enclaves of totalitarianism."

Go here to read the rest:
"Black Lives Mat[t]er" + "Any Life" Drawing "Not Protected by the First Amendment" in First Grade - Reason