It strikes me that Tinker may be a problematic reference point for Mahanoy Area School District v. B.L. Honestly read, the case in Tinker, which involves protesting the Vietnam war, is more about the degree to which high school students can be “adult” in the realm of core political speech at their high school. Thank goodness the Warren Court said “yes” by a 7-2 vote (with restrictions).

Mahanoy, on the other hand, is about the scope of “protected environments.” In free speech law, a protected environment is where the speaker has already relinquished (or lacks) significant liberty by virtue of the environment itself. These include rights to say things by persons in the military or in prison, or by schoolchildren or public employees. The cheerleader in this case doesn’t have “full rights” to begin with — the parents could easily ground her. But if you are not captured by this unfortunate classification — if you are an adult and “maximally free” — there are plenty of examples of where even the in-person F-bomb gets allowed in otherwise “orderly” places:  Rosenfeld v. New Jersey, 408 U.S. 901 (1972),  Cohen v. California (1971) and Gooding v. Wilson (1972). 

What’s my point? This case isn’t about “core political speech,” as I define that here. And this means that Tinker really isn’t the thing to compare it to, in broad terms. What this case is about is the clash that occurs from the rise of the social media state — Twitter, Facebook, etc. — and the degree to which the protected-environment rule dominates those things, when the person is not physically at the place of concern. I would assume that giving the F-bomb to the school in person, just for being denied cheering (etc.), would also be illegal under Tinker. Why not? I mean, Tinker involved the Vietnam war, right? So is this case really about being at the school or not? Or is it about the degree to which silly social media is now part and parcel of Americana, and how the public administrative state is to handle that in a situation of a protected environment?

Let me state this another way; I think I am being misunderstood. Isn’t it actually CLEARER that a high school student f-bombing the school on Twitter for being denied cheering is preferable to the person doing this in person AT THE SCHOOL? I mean, wouldn’t the preferable rule here be: you can vent on your private social media feeds, but on the physical premises, you sort of need to behave? Unless, of course, you are involved in core political speech (salient public policy), in which case we can grant you quasi-adult status. So if you want to F-bomb on campus over the war in x, that is fine. But if you want to F-bomb about cheering, Twitter is your only recourse.

And why is this relevant to us? Well, because of Court politics. NPR’s Nina Totenberg seems to have this pretty much correct. She writes, on the one hand, “The conservative court majority is pretty purist about First Amendment rights,” — citing campaign donations, advertising cases (etc) — but on the other, “when it comes to kids, conservatives tend to be more authoritarian.” Great press coverage.

(P.S. I’m rootin for the kid).