Free Speech on Campus

Professor Lee Epstein and Chancellor Andrew D. Martin

Political Science 334

Spring 2022


PREPARATION FOR VISIT WITH A SPECIAL GUEST (March 30)

A special guest will visit our class on Monday, April 4 at Noon.

Our conversation will focus on student speech—with emphasis on Mahoney Area School District v. B.L. (2021), an important First Amendment case the Court decided last term.

To prepare for April 4’s class, please read the cases below. In your section meeting (on March 28 or March 29), you’ll have an opportunity to discuss the cases and propose answers to questions they raise. In class, on March 30, we’ll discuss your answers (and provide more background material)

Readings

  1. Lee Epstein, Kevin McGuire, and Thomas G. Walker, Constitutional Law for a Changing America: Rights, Liberties, and Justice, 11th ed. (2022) pp. 238-245 (includes excerpts of Tinker v. Des Moines Independent Community School District, 1969; and Morse v. Frederick, 1977)

  2. Excerpt of Mahoney Area School District v. B.L. (2021)

Section/Class Activities

  1. In Mahoney, the Third Circuit panel, Justice Breyer, Justice Alito, and Justice Thomas offer different approaches to speech that takes “place outside of school hours and away from the school’s campus.” How do their approaches differ? Applying the tools you’ve learned in this case, does one approach stand out as more compelling than the others?

  2. During oral arguments in Mahoney, Justice Sotomayor asked the following of B.L.’s counsel. 

    [W]e have traditional categories [of unprotected speech]: fighting words, obscenity, true threats…

    The level at which speech has to arrive to meet those standards is very, very high, and I'm dubious that most of the conduct that teenagers engage in would fit any of our traditional categories. 

    So let's talk about [a] common episode, I think I read it in a newspaper, a young girl is subjected to – each time she goes out of the house, whether she's in the playground, not the school playground, or walking to school with a group of classmates walking by and saying, you're so ugly, why are you even alive? 

    That's not a true threat. They're not threatening her with any bodily harm. It is not harassment if that's all -- if they're just speaking. So -- and they're not interfering with her movement to or from school. Why -- that would be the kind of situation that I don't see a First Amendment category fitting. 

    So…would the school be powerless? 

What’s the answer to Justice Sotomayor’s question based on the majority’s opinion in Mahoney? How about Alito’s concurring opinion?

3. Mahoney is a high school case. Should universities adopt Breyer’s approach to off-campus speech?

4. Tinker famously held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.“ Does that still hold for high school students? What about for college/university students?