Profane Cheerleader Post Wins Protection

year old cheerleader for a profane snapchat rant. The Justice is said school officials have less power to regulate what students say when they're off campus and during oral arguments. Some of the justices suggested the school went too far in punishing the student with a year long suspension from the team. You're punishing her here because she went on the internet and cursed and used a 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. The rather narrow decision was written by Justice Stephen Bryer, who had expressed concern about a broad ruling by the Court. I'm to death of writing a stand joining me his first amendment expert Eugene Folic, a professor at u c l A Law School. So, Eugene, how

much of a win is this for student speech? Considerable? Probably not complete, but considerable. The Supreme Court didn't denounce a clear rule that says off campus speech is categorically protected, or even off campus speeches categorically protected unless it's, say, a true threat of violence or something like that. Nonetheless, the Court made clear that generally speaking, off campus political and religious speech is protected, even if it might cause

some pension or some disruption on campus. And it defined political speech quite broadly. So, for example, that kind of vulgar and non substantive criticism of the cheerleading program that was involved in this particular statement by the student that to the Court said, is a form of political speech because it is criticism of the school. So that's quite

a significant form of protection. And I expect that in a lot of off campus speech cases, this case is going to be dispositive to the point that perhaps there won't even need to be any litigation. So the court stopped short of saying there's a categorical rule for off campus speech. Did they give schools enough guidance for what is and what isn't permissible. No, they did not give the school much guidance. They did set this precedent, this benchmark.

So speech that's kind of like this, future school district and their lawyers will probably realize, you know, if the speech is quite like this, then there's not going to be much of a distinction we can draw. But if the speech is somewhat different, let's to me, because it's somewhat more disruption on campus, or maybe is more personalized to particular students or even particular teachers, you know, in principle of court might reach a different result. You know,

this is the way things work often in law. Right, sometimes a court says here is a rule, But sometimes the court just says, here's our decision, and we're going to leave it to future courts to discern a rule from this case and from other such cases. That's kind of a common law sort of approach, and one that Justice Buyer, who is the author of this opinion, is often quite sympathetic towards. So it will be mostly for lower courts to develop further case law on the subject.

But I'm sure they'll take very seriously this decision, and we'll recognize that off campus speech is usually generally speaking, the view it as more protected And tell us what Justice Brier said about the vulgarity of the speech here, We know that on campus schools have pretty substantial authority to punish speech because as a vulgar it's just kind of a way of teaching manners and teaching how to engage in substantive polite arguments. That's the Bethel School District

versus Fraser case. But when it comes to off campus speech, just as Briar's opinion suggested that basically the vulgarity of the message is not going to be particularly relevant, especially when the message is political in some measure, Justice Briar said he was frightened to write a standard in oral arguments. Does that show in the narrowness of this opinion? Well, yeah, I think that often Justice Brier likes to have kind of flexible balancing tests rather than clear, sharp categorical rules.

Different justices of different view. Justice Scalia famously was much more in favor of clearer rules. So yeah, I think just as Briar got what he wanted, which is a relatively flexible approach, but one that nonetheless offers considerable protection to student speech more complication by the ways, when he said specting death of writing a standard, UM, I think what he meant was a relatively clear standards. Sometimes lawyers

call rules or law professors call rule. Sometimes you have this rule versus standard debate where some people say we need to have a clear, sharp rule and others say we need to have a flexible case by case standard. And Justice Briar's approach, notwithstanding his his oral statement oral argument really does represent what law professors would often call a standard, but one that is deliberately flexible and in some measure on not entirely predictable. Justice Thomas's dissent, What

was his objection? We'll recall that Justice Thomas is the most originalist of the justices and UH in some respects when the original meaning is not that clear, one who is particularly focused on tradition h and as a result, he sometimes reaches very speech protective positions and sometimes really quite speech restrictive positions. In the more see Frederick case, he made clear that, as he understands UH, the original meaning at least of the fourteenth Amendment, UH, which of

course incorporated the First Amendment against state and local government. UM. The UH public schools basically had a very broad authority over student speech, including off campus speech, so peace Sticking to that, his view is, you know, whatever doesn't matter what we think is right or what we think is

consistent with broad First Amendment theory. UH. The important question is what is the best we can tell about the original meaning in the tradition here and he reads the original meaning of the fourteenth Amendment as basically leaving such

a broad authority to schools. By the way, UH. In this respect he is very similar as in some other areas, to just As Hugo Black, who was also something of an original list, although generally he was seen as on the liberal wing of the court, whereas UH Thomas has seen as a conservative originalist but in various issues such as incorporation of the Bill of Rights, but also in this UH. In this case UH um UH cat and fell speech Justice Thomas and Black actually had very similar

views UH. Just as Black was the one dissenter in or one dissenter, he was one of the dissenters in the tinkervieda Moin case back in nine. To be sure, he didn't focus on original meaning as much. But uh, at least to the bottom line, Justice Thomas's view and very liberal, just as Black's view, who worked quite similar

on this issue. As far as the fact that this was social media, was there a struggle to um for the justices to adjust to the idea or to deal with the idea of social media the twenty four hour nature? You know, I don't think so. I think the justices are pretty acquainted with social media. Social media may be new in the an absolute sense, uh, but it's loomed so large in our minds that I don't think anybody is kind of puzzled or uncertain about about how it

works and how it fits in the first commment analysis. Remember, in the packing Him case several years ago, the court upheld the rights there even of people with um sex crime convictions to use social use social media. So the

court wasn't much detained by that. Now, I suppose one could um uh, I think that social that the social media nature here, or more precisely, the Internet nature of the speech might affect things because huh, speech that is written off campus, if boasted on social media, or for that matter, just on the Internet more broadly, can be read on campus and That's one thing that just this um Thomas mentioned that because off campus speech made through

social media can received on campus, that often will have a greater approximate tendency to harm the school environment than will an off campus in person conversation. So there is some element to the social media or the internet nature of the speech that affects matters slightly. But the bottom line was that the court didn't treat this any differently than if she had been giving a state political speech at a rally, or if she had been, uh preaching

a lay sermon. Not that presumably she would have the same topic of the same choice of words, but on some religious topic in a church. So now lower courts are going to have to grapple with this flexible approach, and I do think lower courts are going to be seeing a lot of these cases, and some of them I think are going to involve I hate to use the term bullying because it's so ill defined. It seems

like it's clear, but it's still defined. And by the way, i'll Justice Alito mentioned one of the problems with attempts to restrict harassment and bullying is cisely that they're such ill defined terms and it's not clear whether they match up with any first in thement exception, but that presumably would be some cases where there is basically personal cruelty

posted online about fellow classmates. Another example might be, what if there's something that is personally insulting to a teacher and perhaps a not less substantive point or let's say, insulting the teacher about calling the teacher ugly, or spreading rumors about their sex life with other adults or something like that. So that might be a question that will arrive less. Also, there are going to be lots of

cases that involved on campus speech. It's not like on campus speech is entirely unprotected, and much of the reasoning of the court suggests that indeed the Tinker standard needs to be often read in a speech protective way, even on campus. So your miracle. Some years ago, there was this case called Ariano from the Ninth Circuit which involved

students who are wearing American flag T shirts. And this is on Sinco Demio, and the Mexican American students viewed that is insulting, sort of threatened that there might be some fights as a result, that school said you can't wear American flag gear on sinca demyo to an American school.

This led to a sharp split between the judges and the Ninth Circuit, although the Ninth Circuit upheld the restriction on the wearing of American flag gear, but as a classic example of what outside of school would be called the Heckler's vita, where speech is suppressed simply because some viewers are offended and threatened to react violently or disruptively. So that kind of issue is going to keep coming up,

and it's not clear how it will come out. It's not like this case will affect it that much, but the broader peach cases will continue to involve a lot of on campus speech as well as off campus. So, now, were you surprised that this was eight to one? You know, it was hard to tell from oral argument just how the breakdown would happen, in part because it was hard to tell from oral argument just how broader narrow the rule would be. So I don't think that this is

entirely predictable, but neither was it entirely surprised either. I do think that people who listen to our arguments saw that there was a good deal of unease on the justices part with the government having basically twenty four seven control over tens of millions of public school students. So some degree of protection for that kind of off campus speech, some extra protection beyond with offered on campus speech, I

think seemed pretty likely. And then I think one reason it was a two one was precisely because it was a relatively minimalistic decision. There might not have been eight votes or perhaps not even five votes for a more categorical has there been a definible trend in school speech cases since the landmark Tinker case that allowed students to wear black arm bands to protest the Vietnam War. Conventionally this is seen as the fifth major students speech case

and thinker so that's in over fifty years. So the Tinker case, who is viewed as expanding free speech rescipute because before Tinker, it wasn't clear that students have any

free speech rights with regard to their schools. Then in the Phraser case, the Court said, well, but it doesn't apply to vulgarity on campus sulgarity, And then the Cool Minor case, the Court said, well, it doesn't apply to student newspapers that are run by the school because that's really the school's speech and not just the students speech.

And then in the more Speed Frederick case, the court said, well, it doesn't apply to speech that without making any political or religious statements, seems to advocate the use of draws, because that's particularly dangerous in a school environment. So those three cases you might view them as cutting back and sub measure on students speech rights, or perhaps defining students speech rights in a relatively narrow way. Now this case comes around in this case does offer protection for students

speech right. So as in many areas, you know, some cases come out one way, some cases come out the other. Finally you write it an amicus brief. In this case, how on target were you? Well, our brief urged the same result, urged that off campus and speech b viewed as pretty broadly protected, and it's stressed the danger of allowing schools essentially twenty seven control over student speech. And

that's that is indeed the view the court took. On the other hand, what we were arguing for was actually a more categorical approach. We thought that there would be more reliable protection for student speech and for that matter, more reliable protection for UH school discretion. If the Court were to say, look, we're going to say such speeches categorically protected off campus, subject perhaps to some categorical exceptions for things like personal cruelty or threats and the like.

But you know, we wanted a more rule based approach. That's not what the majority settled on. As always, Thanks so much, Eugene. That's Professor Eugene Vallic of u c l A Law School. This is Bloombird Law with June Brusso from Bloombird Radio. Should a police officer be able to follow you into your home without a warrant if he suspects you of committing a minor crime like playing

the music in your car too loud? The answer from the Supreme Court is no. The majority opinion, written by Justice Elena Kagan, balanced law enforcement interests against the sanctity of the home, something she talked about during the oral arguments. So if you look at our Fourth Amendment cases, you read them as a group, over and over and over. They all talk about the home as the sacrosanct place,

the place of greatest protection. Everything else is compared to that and found not to be quite the thing that the Fourth Amendment protects joining me as former federal prosecutor George Newhouse of Richard's Carrington. Let's start with the basics. What does this decision stand for? Well, the decision actually stands for the fact that the exigent circumstances exception to the search warrant requirement is limited two basically felonies. The

court ruled there's not a categorical exception. It's going to be determined on a case by case basis. So the decision really is yet one more attempt to narrow and specify the circumstances under which the police can enter a home without a warrant. Tell us about the defender in

this case. He was suspected of playing loud music in his car and honking his horn for no reason because there was no one around, and that struck the California Hiway patrolman in Sonoma County as suspicious as well it might, and the officer followed the individual and lit him up, attempted to pull him over, and of course he was

literally a few hundred feet from his home. So the suspect rope into his driveway, into his garage and immediately attempted to close the garage door knowing that a Howe patrolman was right behind him, So he was very much fleeing apprehension. He was fleeing and arrested, and the officer pursued him, stuck his foot under the door. It was an automatic door, and the door pop back open and

he entered the garage. And as soon as the officer did that, that's when he could smell alcohol and did the field sobriety tests and arrested the individual rule for drunk driving. But at that point he'd entered the garage without a warrant, And that was the issue before the court. Is that circumstance a fleeing suspect. Is that automatically an exception to the warrant requirement in the court? And I know held it's not. But are there circumstances where misdemeanor

hot pursuit does entitle an officer to go into a home? Yes,

the Court unequivocally. Both Justice Kagan's majority opinion and Chief Justice Robert's concurring but really dissenting opinion both say that there are circumstances under which a fleeing misdemeanant, someone who's committed a misdemeanor not a felony, a less serious offense, the police will be justified in chasing that person into the home, which, as we all know, is the face where we get the highest protection under the Fourth Amendment.

A man's home is his castle. So the court clearly says it can in some cases occur, but the majority is not inclined to make a categorical rule. They're saying to the police, it's going to be on a case by case basis and will determine each case as it comes before us. And the problem with that, of course, is it doesn't give the police any true guidance. Police

like to have what we call bright lines. They like to be told if you've initiated traffic stop, or you're trying to arrest the person in public and the person flees and the private property, you may pursue. And that was, of course what the talent was arguing. Court rejected it said, nope, it's not going to be automatic. It's going to be determined on a case by case basis. You mentioned the concurrence by Chief Justice John Roberts joined by Justice Samuel Alito,

and really it was more like a descent. Well, it's an interesting opinion because as you correctly point out, it reads like a descent. It's very critical of the majority's refused to endorse the officers actions, which the Chief Justice seemed to feel were reasonable. Remember, the touchstone of legality police action under the Fourth Amendment is reasonableness. If the police are acting reasonably, they legitimately have no alternative, probably no time to get a warrant, then they don't need

a warrant. They can act to protect people's lives and do effective law enforcement. But the Chief Justice was concerned that the court was basically excluding a whole area of legitimate law enforcement and that it was going to make it very difficult for the police to do their job. Because the Chief Justice has clearly from his opinion, he has a tremendous amount of concern, and he's concerned that police be given sufficient flexibility so they can do their

jobs in the field. His opinion set out some circumstances under which basically hypothetical, as he did in the last case that we described involving the seizure of the guns from the house, a Chief Justice set out it was interesting, hypothetically said, supposed a policeman sees a suspect, he believes is committing a crime. He's not sure, by the way,

whether it's a misdemeanor or a felony. And one of the things that the majority opinion does is that draws this clear line between felonies and misdemeanors and pointing out that misdemeanors aren't less serious, which they're they're less serious, and they are multiple numbers. Could the Chief Justice is pointing out, we know sometimes when the police are trying to arrest someone for committing a crime before them, they don't know whether they've committed a felony or a misdemean

or how the DA is going to charge it. They only know that that person is a suspect and probable

cause to believe that a crime has occurred. And the hypothetical was the police officer pulls up to the front of the yard and he sees an adult assaulting juvenile that would be probably a misdemeanor, and he jumps out of his car, and they suspect seeing the police officer, and now, of course, having read the latest Supreme Court opinion, knows that he can flee because it's only a misdemeanor, and he takes off and he jumps over offense on

the property that is his. At that point he says to the cop, go way, I'm going inside, and I'm not letting you in. And the Chief Justice, his opinion, said, under those circumstances, with today's opinion, that's all the police officer can do. I mean, he can go, I suppose, and try to get a warrant. But at that point, were's the suspecting and beat and he may in fact not stay in the house. He might leave the house,

so it handcuffs the police this opinion. George, Let's look at our own hypothetical to see how this decision might play out on the ground. Let's say it's a drunk driving case. By the time the officer gets the warrant, there may not be evidence of drunk driving anymore. An excellent point, exactly right. The evidence in a drunk driving case is resident in the individual's body, and that's alcohol

that's being dissipated at a certain rate. And if the police have to wait two hours and in the middle of the night, even in large urban centers, that can take a long time to get a warrant. In Chief Justice Roberts covered that point as well, and at that point, the evidence may be gone and you may not be able to successfully arrest and prosecute person for drunk driving.

So that's yet another example. Though a few years ago the Supreme Court actually did reject that rationale in holding that when someone was arrested for a drunk driving they needed to get a warrant before they pulled the blood from the suspect, that the suspect did not agree to have the blood drawn. What was the point if they said it during the oral arguments, I think was aldo hot pursuit has to be hot, and it has to be a pursuit. This whole notion of hot pursuit as

opposed to lukewarm pursuit, What does that really mean? Are we grading the severity of the crime? And we're saying, well, if it's a misdemeanor, and it's a trivial offense, and some misdemeanors and the court listed some details. You know, cutting a plant on public land without an appropriate permit is a misdemeanor. And if you simply walked away instead of running, would that be hot pursuit or lukewarm pursuit? Now, these are blurry lines that police are gonna have a

hard time discerning. The short answer is when the police have probable cost to stop and arrest someone or cite them, and they were acting within their lawful authority, and they say to the person stop, sir, or they do the traffic lights. Before this case, that person had to stop. And in California, if that person continues on, they flee, whether they're walking, running, or they jump in a hot

air balloon, that's fleeing. And that would justifiably be within their rights to stop that individual, And before this case would probably be justified in going into their house to arrest them. But not now. Justice Kavanaugh in his concurrence basically said there's not that much difference between what Justice Kagan wrote and what Chief Justice Roberts road. What did

he mean, because it seems like there is a difference. Well, it's an interesting point that Justice Kavanaugh was making because what he's really saying is when all this boils down and distills to essence, which is to say, an objective, was the police behavior objectively reasonable? In most cases he's suggesting, and he may be right, the police are going to be justified in entering the house to affect the arrest

if there are a whole list of other factors present. Remember, exigent circumstances up to now included preventing evidence from being destroyed, capturing a clean felon, and presents a danger to the community. So there were lists of things in the case laws

that police could do. In Justice Kavanaugh saying, when the case by case approach, which is articulated by Justice Kagan in our majority opinion, when that's fleshed out at the end of the day, it's going to be the same result as the Chief Justice suggesting that the police action will be legitimate. But here's the problem. The police aren't going to know when they take that action at the time whether ultimately, when the Court's second guests their behavior,

it's legal or not. And the concern of the chief Justices having that out there, having that uncertainty, and given to how difficult it is to make these snap judgment decisions in real time in the field where you don't have the luxury of oral argument in time to contemplate um, it's going to impair and impede the police. They're going to air on the side of caution and let the suspect go. So in future cases, how do you think the lower courts are going to handle this. Do you

think that there's enough guidance for them in the majority decision? No, I agree with the Chief Justice. I think it's the point that he's making is a very good one, which is, we really do need a bright line test here. We need more guidance. We need to clear that the drawing the line between a felony and a misdemeanor is not really relevant. If the police are acting in a lawful fashion,

enforcing the law. It shouldn't matter whether it's a traffic law they're enforcing or the suspect is believed to have committed a violent felony or a robbery, and they should be authorized to act and we should be airing on the side of the police, which is what the Chief Justice is the jet thing Justice Kaganess is suggesting. No, they need to stop. They needed they can't go into that house. That house is sacrificing. So this only applies

to police chasing suspect into a home. Well, two things. First, it really only applies when they were going into the home because that's the highest level of Fourth Amendment protection. And the second thing is, um, it doesn't isn't really going to alter the fleeing felon rule. Previously, most of these police chases where they're they're chasing the suspect, the person is believed to have committed a felony, and that really was a categorical approach. It didn't matter what the

felony was. If you had probable cause and you're trying to arrest someone for a committing of felony, that was exigent in circumstances categorically, and that question was decided. The irony of this decision is that almost both some of those pursuits into doubt as well, because the cults are going to look at all the other circumstances. Well, this was a felony, but this person was a white collar maybe a personal was a white collar offender, okay, businessman,

and he's not posing a danger to society. So I suspect that as the court's grapple with applying this decision in real life circumstances, it's going to cause a lot of trouble and there's going to be greater uncertainty. And uncertainty in law enforcement is a bad thing. We want policemen and agents to have guidance from the court so they know what their behavior should be to be lawful under the circumstances. And that's the problem with the opinion.

From this opinion and the last opinion that we discussed, the officers going into the guy's house. Does that tell you which way the court is headed in these cases or not? It does. It sends a remarkable signal. Again, this was a nine oh decision. The Court is making every effort to be unanimous, even when ironically, as in

this case, they really weren't. But you know, I think it's showing that the Court is really taking the Fourth Amendment very seriously and trying to give the greatest protection for individuals who once they get in their house, that's that's safe ground absent a warrant. And the Court of is sending that signal that we're gonna look at any incursions into into the castle with great scrutiny. And and B and B foe warrant. Thanks for being on the show. George.

That's former federal prosecutor George Newhouse of Richard's Carrington. And that's it for the edition of the Bloomberg Lawn Show. Remember you can always the latest legal news on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast, slash Law. I'm June Grasso and you're listening to Bloomberg