The Court was trying to find a balance that allows schools to prevent kids from going around spewing expletives all day long without consequence, while at the same time not treading too heavily on the legitimate free speech rights of students.
BTW, what do you mean when you say "nonviolent speech"? Are you referring to calls to violence, or the more recent concept (not recognized by the courts) that certain speech is itself violence?
I totally understand the practical implications and what they are trying to do, I just don't understand how it's legal without a constitutional amendment.
At worst, swearing too much will paint you as uneducated or abrasive, but in fact if someone complained about it they would be more likely to be criticized.
The next step is simply that one tribal group will attempt to target anyone who uses certain words for punishment not because of the word itself but because you indicate you are part of a different tribe and therefore must be punished.
Ultimately it is an abandonment of the principle of governance by law and instead replaces society with a system of tribal warfare.
Back in the 70s, as an example, Canadian broadcast TV used to censor violence quite a bit, yet not nudity as much.
The US was the reverse, with violence on OTA TV more freely shown, compared to nudity.
Canadian vs US broadcast cuts of some movies had to be unique as a result, or US cuts only shown late at night.
I imagine the same logic may apply to "swearing", from a religious viewpoint.
When I was young, we used to joke that Canadians censor violent death, and Americans censor love...
This is the rationale for punishing children for saying the words. American parents often do not want their children participating in an environment where those words are socially normalized, and so, school staff prohibit the behavior.
Depending on the particular word and its usage, it may be language that inherently bullies other children too -- also not behavior that American parents want school staff to tolerate.
I believe a couple provinces of France still have blasphemy laws.
And, then there is Holocaust denial...
For better or worse, the US legal system is far more liberal than France’s when it comes to speech. (As for the relative sensitivity of individual citizens of either country to foul language, I don’t know. Depends where you are, I guess.)
If I publish a public video where I say that "M. Untel est un professeur très injuste" ("Mr. So-and-so is very unfair"), no problem, "M. Untel est un fils de pute" ("Mr. So-and-so is an asshole"), consequences.
Stepping away from race for a second because it probably is needlessly complicating this, you would not get in trouble in a french school for saying the french equivalent of "fuck you, you lazy piece of shit" to your teacher?
No, that's exactly the opposite of what I said. In the US you have to circumlocute your way around saying the word in all circumstances, even when it's not used in a derogatory / insulting way (such as referentially, or even because it sounds that way, see "niggardly" and "nega nega" incidents.) Insulting someone is insulting someone. Saying "go get sexually penetrated you inferior race person" is offensive whether you use a taboo word or not.
It's not clear to me that a school should have the ability to punish people at all for off campus actions, let alone that this punishment is proportional to the event.
This case is only about the schools ability to exercise arbitrary power over its students, and it was willing to take that to the supreme court-- something which is incredibly rare and expensive over something absolutely mundane and everyday.
Spewing expletives all day long without consequence is a right, guaranteed by the first amendment. If the school system doesn't like it, it's free to relocate to a country where free speech laws don't apply.
I still don't understand why this went all the way to the supreme court. It's such a clear-cut case of free speech. Some school admin's reading comprehension must be really poor if they couldn't make sense of the first sentence of the constitution.
The previous Supreme Court precedent (Tinker, [1]) was from 1969, and it wasn't clear how it should/would apply in the case of digital speech. For example, a student can be off-campus and tweet something that is instantaneously seen by hundreds of students who are on-campus. It wasn't clear how Tinker's framework would apply to this, since twitter and other platforms for remote speech didn't exist at that time.
students have had significant freedom of speech protections since 1969. not sure what time scale you had in mind.
and until there was a nontrivial number of older students in state run schools, there wouldn't have even been opportunities for case law to arise. (mandatory) public schooling started with younger students and expanded from there.
(while children of any age should have their freedom of speech, i think we can both agree that as a practical matter, they're more likely to put it to use the older they get.)
This is pretty much my point, the influence of the Constitution has been increasing over time, not decreasing as the commenter to whom I originally replied seemed to imply.
I don't know why you would use any but the longest available timeline when considering whether the Constitution is "still the law of the land". It's an inherently from-the-start kind of question.
One principle used to restrict free speech on school campus is about being "disruptive" to the class. E.g. Public schools banned kids from wearing the Confederate flag on shirts because they were "disruptive". In some cases, the free speech advocates fought the rule and yet the ban was upheld by courts even on appeal:
https://www.google.com/search?q=confederate+shirt+banned+pub...
If I was king I'd declare the whole country a school where criticism of me is banned.
In Tinker the supreme court ruled that schools can limit SOME speech ON/around school premises under narrow circumstances. However, in this case, Mahanoy Area School District v. B.L. - B.L. was not on school grounds at the time, simply references school. The Defence in Mahanoy vs B.L. actually tried to muddle in the standard test under Tinker of "substantial disruption" to this case, but the court basically told them to kick rocks on that.
There are truancy laws, and these vary greatly from state to state. However, not showing up for detention does not typically make one a truant; only being absent during regular hours.
"Free speech if and only if you leave" is not really free speech, is it?
School choice only works if it doesn't destroy your life to make some other choice. Otherwise it's not really a meaningful choice.
While students do absolutely have rights, schools are also tasked with caring with kids (especially during the school day). It's typically at the intersection of these rights and responsibilities where we see these cases make it to SCOTUS.
IANAL and would butcher the explanation, so check out the Decision section.
That's a leap. "Disruptive" was defined within the context of the facts and circumstances of that case. Courts are about balancing rights, in this case, the rights of students to receive a public education and the rights of students to speak freely under the First Amendment. This case narrowed the definition, ever so slightly, of what is and isn't "disruptive" within the meaning of this law.
The most obvious counterexample would be speech that disrupts education. Why even have schools if one student can choose to talk and yell and disrupt class and not be punished for it?
Even here, I'm surprised by the free speech advocacy of the justices. It doesn't seem consistent with plenty of other rules that are allowed to stand. This school could have punished the same cheerleader for the same words if she'd said them in class or even at practice. As far as I can tell, she was only protected because the school can't punish her for what she says totally outside of school property and activities.
The wording of the decision makes it sound like you're free to speak profanely anywhere and anytime you want, but schools clearly punish people for profanity all the time and that's never been stopped.
Yes, it does. The Fourteenth and Fifteenth Amendments [1] incorporate much of the Bill of Rights against the states. Local governments are creatures of the state; SCOTUS has long found that local governments have been incorporated against as well.
[1] https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...
... is not and never has been an exception to the constitution. It was written as part of a dissent which has been thoroughly ignored and repudiated except by people who don't understand the first thing about US law.
https://en.wikipedia.org/wiki/Schenck_v._United_States
Granted that decision was later partially overturned, but the general principle that the first amendment protections are not absolute remains in force, and there are many extant examples: libel laws, laws barring false advertising, and laws against incitement of violence are all constitutional.
The phrase was used by Justice Holmes in a boneheaded decision that upheld the illegality of objecting to the draft. Thankfully, the opinion was later overturned.
The very narrow point being made by the Supreme Court was there could be crimes-such as inciting imminent lawless action-that might be precipitated by speech. It’s not the speech that’s illegal... the crime is the intent to cause an immediate riot.
The same crime could be occasioned by storming into a theater with a gun and scaring the shit out of people.
In any case, the “yelling fire” trope isn’t accurate as it’s usually used.
As far as human sacrifice, there’s nothing inherently illegal about it. That is, if it’s legal for grandma to be euthanized, or legal for a convict to be executed, or legal for a baby to be aborted, it would make no difference legally if the participants considered the act part of some bizarro religion.
The analogy “fire in a crowded theater” was most famously used by Justice Holmes in 1919’s Schenck v. United States. Holmes used it to argue (and the court ruled that) protesting the military draft was a clear and present danger to the public tantamount to espionage.
Most people today, I think, would disagree. But the metaphor remains common, often used uncritically, without considering what speech it has been used to suppress in the past.