Clause. The Supreme Court justice has struggled with a case about a high school cheerleader who claims her First Amendment rights were violated when she was suspended from the team because of a profane snapchat post. Some of the justices, like Selia Sotomayor and Brett Kavanaugh, seemed to think the punishment of a year long suspension from the team was excessive. You're punishing her here because she went on the internet and cursed and used to curse word related to what
to her unhappiness with the school and cheering right. She's competitive, she cares. She blew off steam like millions of other kids have when they're disappointed about being cut from the high school team or not being in the starting lineup. While others were concerned that any sort of broad ruling would have unforeseen consequences, here's Justice Stephen Bryer standard joining me his First Amendment expert Eugene Va, a professor at
u c l A Law school. So fifty million public school students in the country, they're all on social media. How significant is this case? Well, it could be huge or it could be narrow. It all depends on how the justices decide that indeed, it could be huger even than social media. So the funny thing about the way the argument went is the lawyer for the school, the local government entity least of last, leading leading Supreme Court advocacy,
starts out with this very speech protective art. She says, Look, Tinker is the official test war First Amendment protection fork through closed students. It's actually very speech protective. It's so speech protective that it's not a problem to apply it to social media and apply it to other off campus speech. To be sure, in certain situations, such as when somebody is saying something that might interfere with the way that their athletic programs is operating or something like that, then
the speech can be punished. But generally speaking, most political, religious, and other such speeches really strongly protected on campus and off And the lawyer for the federal government, who was mostly supporting the school district position on this, said the same thing. On the other hand, upcomes David Cole, the director of the a c l U, who is the lawyer for the student, and he says, oh, this Tinker test,
which is actually very unprotected. It allows all sorts of restrictions death school and that's why it can't be extended off campus because it provides so little protection that it has to do cabins to school speech. So because of the imperatives of the litigation, they were just trying to win the case for their clients, they in a sense almost flipped size on the bigger picture question of the scope of Tinker. So that question is going to be
very much in play. Potentially, the court could hand down a decision, for example, that says yes, Tinker applies on campus as well as off campus because Tinker is just speech protective standers, and that could affect be tried for through twelve students everywhere. Tinker is a landmark case from nineteen sixty nine where the courts said that students don't shed their constitutional rights to freedom of speech at the schoolhouse gate. Can you explain the standard established in Tinker? Sure?
The Tinker standards says, generally speaking, through twelve student speech can be restricted if it is reasonably likely to create material and substantial disruption. So think about it as a disruptive speech. Sanders Generally speaking, you can't punish ordinary citizens speech because it's disrupted. For example, if you're picketing some government building that could be quite disruptive of the activity
in the building. But unless you're actually blocking entrances, are threatening people, or whatever else, you have the right to
do that. But at least at school, Tinker says, if the speech is substantially and materially disruptive, then in that case it can indep be restrict So the question presented to the court here is what if this is beach off campus but it risks creating disruption on campus, does the school have the power to restrict that speech too, or would that unconstitutionally give the school sort of twenty four seven power over students speech in a way that
the First Amendment cannot tell. At one particular thing that's really important that played a big role with the argument is this question of the Heckler's Vito say, somebody standing in the street corner and is saying things that offend the crowds. Could be political, religious, could be about race,
about sexual orientation, about religion, about whatever else. And somebody in the crowd threatened to attack, and and the police officers and says, Okay, I'm gonna break all this up by removing the speaker, by telling the speaker to stop, because the hecklers are endangering the speaker and potentially causing a fight and others breach of the peace, that's not allowed. That would be a so called heckler's veto. Um. It would be the government essentially stepping in on the side
of the hecklers to suppress the speaker. And the court has said that is not permissible because otherwise that we give heckos too much power. But lower courts applying Tinker have said well. Tinker says that speech can be restricted on campus if it's disruptive enough, and that disruption could very well come from people heckling, which is to stay in this context, either interrupting class or possibly fighting with
a student or something along those lines. So the lower courts, at least some of them, have said the heckler's veto
is a good basis for restricting speech on campus. One particularly notorious case involved some students at a California school wearing t shirts with the American platform the American flag, and this is because it was sincer demyo and apparently some students were upset at these American Flag wars because they thought that that was disrespectful and kind of anti Hispanic or anti Mexican when that's done on sincer demayo and the school said, well, yeah, you have to take
off your American flag t shirts. And the ninth or it said yeah, the school was allowed to do that because there was a threat of disruption, and yeah, the Heckler's Vito is a good basis first strict in speech on campus. Now, Lisa Blad, the lawyer for the school district in the BM case, said no, no, no, no, no. Heckler's Vito can't be used as a basis for restricting speech on campus. And that's why the Tinker standards Because
it rejects the Hecklers viso. The Tinker standard is actually quite speech protective and thus can be applied off campus. This speech didn't cause any disruption to school functions. How does that fit in here? Well, so, the lower court says that the destruction test doesn't even apply to off campus speech. Off campus speech if it's protected against criminal punishment or against the aliabilities, protected against school discipline, at least generally speaking. So as a result, it doesn't matter
if it's a disruptive or not. The school wants to be able to show that it was disruptive not to all of the school, but to the operation of the cheerleading squads. They say, Look, as she wasn't expelled from school, she wasn't suspended from school. She was only suspended from secheer leading because her speech being disrespectful to the whole enterprise of cheerleading and being disrespectful therefore to the coach and her teammates, is disrupting the effectiveness of this particular
cheerleading program. So that would be the school dark. Some of the justices seemed to pick up on the point that this was an extracurricular activity. Does that give the school more leeway to limit outside speech. So that's a good question, and we don't know what the court will say about that. The question presented to the court in the petition, the question that the Court agreed to hear Justin's focus on that. It just asks whether the Tinker
standard of plastoff campus. And usually the court tries to stick with a question presented, So some justices might say, look, we're going to leave this question of were there any special rules for rest for curricular activities. We're going to leave them to a different case where that is the issue that we agreed to hear. In this case, we are deciding the question presented, which is all about our campus speech, regardless of whether it relates to an extracurricular activity.
At the same time, you could imagine some of the justices, or maybe the majority of the justice is saying, look, we ought to decide the case narrowly with an eye towards the particular facts of this particular situation. And in this situation, the punishment for the student was simply suspensioned from an extracurricular activity. That kind of the threat of that kind of punishment isn't this chilling speech. It doesn't
deprive somebody of their right to an education. It only deprived them of the ability to be on the cheerleading squad. And that's not a big deal. So you can imagine the court coming up with this rule, although you could also imagine some justice is setting that for many students, participation to me in an extracurricular activity is very important for them, both kind of personally and some respects educationally. Um and threatening removal from that kind of activity for
your speech is indeed going to be chilling. Because the recall in this case, you know, the speech was just kind of this girl complaining about about not making a varsity But in principle, you can imagine somebody saying something political or saying something about a religious topic or some other topics that might cause tension within the team, and then you could imagine the coach the case, fine, you're off the team because you're saying things about immigration or
about race or about religion that people don't like, and that again could be quite chilling, a really quite valuable speech. So those are the kind of questions of the court might have to consist. So you had Justice Alito saying they needed a clear rule and Justice Brier saying, I'm frightened to death of writing a standard. Do you have any idea where they might come out in this? You know,
it's very hard to tell. It's always hard to tell for moral argument what the justices are going to do, because often the justices really are asking questions because they're not really sure what the answer is, or sometimes they're just floating possible to areas or envisioning possible objections to the position that they that they might want to ultimately come to, likewise, of course, through nine of them. So some justices might go one way some justices might go
another way. Some justice is might go a third or fourth way. So it's really hard to tell what the
justices are going to decide. I do think there was general concern on the part of many justices about schools having undo power um to restrict students speech, especially speech that, unlike the speech in this particular case, really does deal with kind of bigger picture political, religious, social issues, including those issues as they intersect with the school like, for example, claims of maybe misconduct or sexual misconduct by teachers or
classmates or whatever. On the other hand, I do think that you saw a lot of justices recognizing that schools need considerable authority to make sure that the schooling goes on effectively. So again, I think it's very hard to figure out what they're going to do until one reached the opinion. A couple of months from that, Justice Brett Kavanaugh suggested a narrow kind of ruling that might not give much guidance to lower courts. Well, that's what I
started with. You know, you could imagine this opinion being written very narrowly, or you could imagine this opinion being written relatively or only A lot depends on whether they justices want to resolve this issue now themselves or leave it to lower courts. So, for example, you can imagine the Court saying Tinker does apply off campus because it's important to prevent disruption on campus, and off campus speech
can cause on campus disruption. But we're not resolving, for example, whether Tinker allows speech to be restricted because of a Heckler's veto. We're not resolving how disruptive the speech needs to be. We're not resolving whether there would be a different standard for speech that's disruptive nearly of an extracurricular activity and the only thing that's happening to the student is the students suspended from that activity. We leave that
for lower courts to resolves. You can imagine the Court doing that, and if it does well, then if the things will go back to lower courts and then have that to reconsider some of these questions. You could also imagine the court, for example, making the decisions that is on its face quite narrow, but by flagging certain issues by saying, you know, it's an interesting question whether speech can be restricted on or off campus because of the
hecklers veto. Then in that case, perhaps lower courts will be emboldened to try to resolve that, and then maybe another such case will go back up to these to
the Supreme Court. It's possible. At the same time, I do think that Justice Alito has a good point that government officials and students deserve some guidance as to what can be said and what can be punished, and if the Court just sort of just just leaves things uncertain, then there won't be much protection for speech, and there won't be much protection for the legitimate interests of school boards.
Does it seem though, that they're likely to reverse the Third Circuit because that decision was so broad, Well, I'm not sure. I'm not sure. Again, I think it might depend, for at least some justicesum how much speech restriction they see Tinker as allowing. So if, for example, just as the leader is persuaded that on campus, Tinker does allow restriction of political speech, religious speech, speech on social matters so long as classmates can be offended enough, I don't
think he'd want to extend that off campus. So you can imagine him saying, look, on campus, which has to be pretty heavily restricted, or at least schools have to have the power to to restrict speech. But if that's so, then in that case we need to have a more speech protective rule of or he could even say I think that speech on campus should be pretty broadly protected,
but my colleague is disagreed. And given that my colleagues disagree and view Tinker as giving schools a lot of power on campus all than in that case, at the very least, I think they should be denied that power off campus. You can imagine some of the justices taking but again you could also imagine some of the justices saying, well, speech off campus should be treated the same way as on campus because both can have pomful effects on campus, and because it's often so hard to tell what's up
what counts is on or off campus thatst all. A lot of these things can be viewed on campus, even if they're sent from uf campus. But given that this is so, we need to make sure that there is a pretty bright line exception for for get political, religious, and similar kinds of speech. So it's really hard to predict. I think what it is that the justices are going to do here. Have Supreme Court decisions in the past, let's say, at ten, fifteen, twenty years, have they weakened
generally weakened protections for students speech. Yes, after Tinker, which after all came out in favor of the students there the students wearing the black armbands because the court said there wasn't enough evidence of disruption after things are In case Bessel School District coursus Fraser, that said, well, vulgar speech speech about kind of a full of sexual innuendo can be restricted on campus. And by the way, I think it's pretty clear that this Fraser doctrine does not
apply off campus. You can't punish a student for off campus sulgarity if they're not disrupted. Likewise, in in Morse Frederick, the court said, well, on campus speech that seems to encourage illegal drung you can indep restricted. And again though the court stressed that this was limited to on campus or at least that school sponsored activities there. The speech was physically off campus, but it was in the context of a school and sponsored school in school endorsed it too.
So yes, the court has authorized more restrictions on student speech in some measurement. That having been said, I don't think that the tenor of the argument in this case was just well, the school boards need to win in because schools. Schools should have broad power. I think many of the justices recognized that the power of the schools has to stop at some point, especially when we're talking
about speech that's offensive for politically. So, finally, you wrote an amiguous brief in this case, what was your position? So our position was it looks like at least lower courts seemed to say that Tinker does allow a lot of political speech and the like to be restricted on campus, so long is it's offensive enough to be disruptive. If that's the rule, then in that case that has to
be limited to on campus speech. You can't authorize twenty four seven control over student speech where every time a student says something that might offend classmates, even at a political rally, war online, where at a church, or in a letter to the editor of a newspaper, that the student would have to worry about about possibly being suspended or expelled at that So that was our position, and again that position rested on the lever courts generally speaking,
viewing Tinker is not very speech protective, and you can imagine the court saying, well, we don't care what that brief said, because we really think the tinker is very speech protective, and if it broadly speech protective on campus with only a few mirror restrictions allowed, then maybe it should be applied dot campus. So you can imagine the court saying that, thanks Eugene, that Professor Eugene Vallak of u c l A Law School, did you order You
don't have to answer that question. I'll answer the question you want answers. I think I'm entitled. You want answers? What the truth? You can't handle the truth? The confrontation between Tom Cruise and Jack Nicholson in a Few Good Men is high drama, but cross examination just doesn't happen
that way in a real courtroom. Still, every criminal defendant has the constitutional right to confront the witnesses against them, and the Supreme Court is going to concern it or whether defendants weighed that constitutional right when they open up
the door to certain evidence. Joining me as former federal prosecutor Robert Mints, a partner Macarter and English Bob, just about everyone's heard about a defendant's right to confront witnesses, but explain the confrontation clause the Sixth Amendment gives a defendant and a criminal prosecution the right to be confronted with the witnesses against him. What that means is that at a criminal trial which you're charged with an offense, your lawyer has the right to cross examine any witnesses
who testifies against you. Prosecutors are not allowed to admit statement by other witnesses to present before the jury in culpatory evidence without giving the defendant lawyer the right to test the strength of that testimony by cross examining them in court in front of the jury. What happened in this case tell us a little bit about the facts in this case. This is a case of Darryl Hemphel, who has tried for murder in New York State after
another defendant was tried for the same crime. The facts are actually quite unusual because it involved another defendant who ended up seeding guilty to possession of a firearm after the murder prosecution against him had ended in a mistrial. The case was about the two thousand and six shooting death of a child who was a passenger in a car that drove by a fight on the street and the bronze. The first defendant was tried and the jury could not agree on the guilt of the defendant and
so it ended into the mistrial. Instead, what prosecutors did as they allowed this second defendant to plead guilty to possession of a handgun. But it was critical here is that that defendant pled guilty to possession of a three fifty seven revolver, which was not the gun that was used in the murder. So what happened at trial to lead the judge to allow in the statement of another defendant.
At the trial, Misterhampful, his defense lawyer, advanced one of the most based defenses that you see in criminal cases, and that is that his clients did not commit the crime and some other person did. They tried to point the finger at the other defendant who had already pled
guilty to possession of that different firearms. The court ruled in that case that once the defendant made that argument in front of the jury, the defense player had opened the door and allowed prosecutors to use the plea elocution, which is the statement that the other defendant made when he entered his guilty plea admitting possession of the three fifty seven revolver at the scene of the shooting that
was not the gun. That killed the child, and so the judge said that the defense lawyer had created a misimpression in front of the jury. The prosecutors were entitled to correct by admitting that statement in evidence at the trial. The problem from the defense side is that the defense lawyer never had a chance to challenge that statement. The defendant six Amendment rights across examine that witness who was essentially testify against him, was never permitted at the trial.
And that's the question that now before the Supreme Court. And in fact, that statement that the other defendant made in his plea elocution that was never subject to cross examination at all. Now that's exactly right, because it was a plea elocution. It's just a statement that's made at a guilty plea where a defendant has to admit the elements of the crime in order for a judge to accept that plea. So it's not cross examined by the
prosecution or anybody else at the time. And what the defense here is arguing is that any competent defense attorney who had the ability to cross examine this other defendant could have PopEd holes in that narrative by asking the other suspect whether he, for example, also possessed the murder weapon in addition to the weapon that he fled guilty to, or by exploring the motivations of that defendant to plead guilty to that weapon's charge when he had originally been
charged with murdering. Lower courts around the country are split on this issue. One reason that the Supreme Court might have taken the case. In your opinion as a former prosecutor, do you think the court should have allowed in that
plea elocution. I think there's a good argument by the defense that that statement should not come in without the ability for the defense to cross examine the witness for the very reason you mentioned earlier, which is when the statement was made, was not even in the context of another trial where it was said that the cross examination
by some other lawyer. It was simply a statement that was necessary in order to allow that defendant to enter a guilty plea, and it was not in any way challenged by any other lawyer as to its veracity or
its completeness, And there were other defenses available. Even if the defendant in that case did possess the other handgun, there was no testimony about whether he possessed other handguns, or whether he might not have been telling the truth in order to try to get a better plea from the prosecutor since he was facing a murder charge and ultimately only played guilty to a weapon's violation. Thanks Bob. That's Robert Mints of McCarter and English and that's it
for the edition of the Bloomberg Law Show. Remember you can always get the latest legal news honor Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, and wherever you get your favorite podcasts. I'm June Grosso and you're listening to Bloomberg