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Dissent from Thomas Justice Clarence Thomas dissented, writing that students like the former cheerleader "who are active in extracurricular programs have a grea

Dissent from Thomas Justice Clarence Thomas dissented, writing that students like the former cheerleader "who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs." "For example, a profanity-laced screed delivered on social media or at the mall has a much different effect on a football program when done by a regular student than when done by the captain of the football team. So, too, here," Thomas wrote.

lp0_on_fire 5y ago
It's not like this girl made a threat against someone. She's a teenager - it's pretty much in their job description to say stupid things that they'll regret later in life so I respectfully disagree with Justice Thomas. Thankfully the rest of the justices did, too. That being said there's a common trope coming from the loudest and most moral busybodies in academia that "Americans just want babysitters for their kids three quarters of the year". Sometimes I think it's projection.
petercooper 5y ago
I'm not American and free speech isn't an area I'm clued up on, but following on from that judge's words.. are there situations where more privileged/famous people have less freedom of speech (in a quasi-legal sense, rather than a 'social consequences' one) than others in the US?
- gnicholas 5y ago
  No, famous people have the same freedom of speech as anyone else. But the reasoning of this case indicates that a message sent by a high school student who has a million followers on twitter could be regulated by a school, even if that same message would not have been allowed to be regulated if sent by someone with 5 followers. This is because the large number of followers increases the likelihood of a "substantial disruption" (a term of art from prior cases). An interesting question: what if someone with 5 followers sends a tweet, which is then picked up and RT'd by someone with a million followers? Should the school be able to regulate the original message (i.e., punish the student) simply because someone with a large following agreed with them? Presumably they couldn't punish the student before the RT, but what about after?
- jasode 5y ago
  > are there situations where more privileged/famous people have less freedom of speech (in a quasi-legal sense, Not sure if this answers your question but some possible examples: - corporate insiders have "freedom of speech" restricted in the sense that they can be punished for "manipulating stock price". E.g. Elon Musk tweets: https://www.google.com/search?q=ceo+tweets+accussed+manipulating+stock https://www.google.com/search?q=ceo+tweets+accussed+manipula... - book authors writing fiction getting sued for libel/slander so some writers creatively get around it with the "small penis" rule: https://en.wikipedia.org/wiki/Small_penis_rule https://en.wikipedia.org/wiki/Small_penis_rule
- KorematsuFred 5y ago
  You have to see this with two lenses. Free speech is always about freedom from government control. Your employer can put whatever restriction on your speech that they so desire even outside of your workplace. In that sense famous people do have less freedom. For example basketball players promoting Nike can't wear any other shoes publicly. Second case is of government putting those restrictions on you. Can public school put such restrictions on students ? I do not know and I am not familiar with this case.
  - walshemj 5y ago
    Tell that to Cristiano Ronaldo who dissed Coca Cola at the Euros. The cynic in me think he might have his own brand of flavored water to launch.
  - unanswered 5y ago
    > Free speech is always about freedom from government control. You are confusing "free speech" and "the First Amendment". Free speech has nothing to do with government; it's a generally applicable concept. The First Amendment specifies a requirement for the government to respect freedom of speech. That wouldn't even make sense if freedom of speech weren't a general concept.
    - KorematsuFred 5y ago
      > That wouldn't even make sense if freedom of speech weren't a general concept. Free speech as a general concept is irrelevant in the eyes of law unless you have some specific law governing the specific scenarios. (Employees being punished for how they voted in general election.) Free speech could be a virtue but it is a virtue like "not lying". It is perfectly legal to lie in many circumstances.
      - unanswered 5y ago
        Sorry, what does this comment have to do with anything? I was responding to the claim "Free speech is always about freedom from government control", emphasis mine. Where did "in the eyes of law" come from? How is this contributing to the conversation? It's okay to just admit that someone else's clarification was helpful and move on. You don't have to add irrelevant, non-clarifying addenda in order to seem like the more knowledgeable party.
- kube-system 5y ago
  In as much as their privilege and fame might make their words more likely to influence people, possibly. > Advocacy of force or criminal activity does not receive First Amendment protections if (1) the advocacy is directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action. https://en.wikipedia.org/wiki/Imminent_lawless_action https://en.wikipedia.org/wiki/Imminent_lawless_action
lupire 5y ago
Ironic, since Thomas is the person who didn't mind having a negative effect on the Equal Employment Opportunity Commission and the Supreme Court with his behavior toward women and atheists.
- trdtaylor1 5y ago
  It's typically a good decision if Thomas is against it. In life and in court decisions.
- EricE 5y ago
  You mean the sham of Anita Hill? You'd think people like you would be thoroughly embarrassed to continually push these tropes - then again embarrassment requires self awareness and humility. If you actually read his dissent, instead of a hack summary, you would see he thinks they didn't go far enough in constraining the schools. Quite the opposite of what is implied by CNN. But hey, as long as someone holds a dissenting political opinion they aren't human and therefor fair game, right?
voxic11 5y ago
Speech reasonably interpreted as bearing the school’s imprimatur falls outside the scope of this opinion so these comments would need to be made personally and not "as the school team". The opinion still allows students consent to additional restrictions on their speech. Requiring such consent to attend regular school isn't allowed because students are required to attend school. But requiring such consent to participate in extracurricular activities like sports teams would still be allowed. So in your example the school would simply need to require consent from students to have their speech restricted before they can participate in extracurricular programs like the football team.
EricE 5y ago
His stance is less confusing if you actually read it in context, instead of carless (being very charitable) summation that completely misses his point. Ignorance or malice? Either is terrible. Here's the relevant part from the introduction of his dissent. Note he doesn't have issue with the outcome, but the extremely sloppy and haphazard way in which the decision was outlined. I quote: "The Court overrides that decision—without even mentioning the 150 years of history supporting the coach. Using broad brushstrokes, the majority outlines the scope of school authority. When students are on campus, the majority says, schools have authority in loco parentis—that is, as substitutes of parents—to discipline speech and conduct. Off campus, the authority of schools is somewhat less. At that level of generality, I agree. But the majority omits important detail. What authority does a school have when it operates in loco parentis? How much less authority do schools have over off-campus speech and conduct? And how does a court decide if speech is on or off campus? Disregarding these important issues, the majority simply posits three vague considerations and reaches an outcome. A more searching review reveals that schools historically could discipline students in circumstances like those presented here. Because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent. " https://www.supremecourt.gov/opinions/20pdf/20-255_g3bi.pdf https://www.supremecourt.gov/opinions/20pdf/20-255_g3bi.pdf Page 34 If you actually read his dissent, instead of a hack summary, you would see he thinks they didn't go far enough in constraining the schools. Quite the opposite of what is implied by CNN.
- lp0_on_fire 5y ago
  Unsurprising. CNN decided long ago that Thomas is "the other" and they'll never be charitable when it comes to people on that side of the political aisle. Before I get the deluge of "WHATABOUT fox news" comments. Yes, Fox news is horrible and they are never charitable either.
- harshreality 5y ago
  I'm just an amateur occasional Supreme Court-watcher, but just reading his dissent I wouldn't go so far as to say he thinks schools need to be more constrained than the majority does. He might or he might not. Or maybe I missed something you picked up on. What is clear to me is that he thinks there are crucial unresolved issues that the majority punted on. The process of the court's opinion-writing sometimes involves several justices circulating draft opinions and trying to recruit others to sign on. Thomas might have written such a draft opinion with very careful reasoning, perhaps even concurring in the majority's judgment, but nobody else was willing to sign on to some of his specific reasoning that he thought was crucial, so he took his toys and went home.
harshreality 5y ago
While I strongly disagree with Thomas's decision, I disagree on the basis of several of the issues that he himself points out as unaddressed by the majority. Specifically, the widespread compulsory nature of schooling today vs in the 19th century, which Alito's concurring opinion outlines, as well as the limited-scope of snapchat "stories"; it is not the student's fault that speech intended to be transitory and limited in distribution was screenshotted and amplified. This case was much more like speech at a casual in-person meet-up outside of school than Thomas wants to admit. Furthermore, the nature of public schools (and even most private schools) today is far less serious than schools of the 19th century or before. Even if it weren't for the issue of compulsory schooling, schools have abdicated most of their traditional responsibility for moral instruction of students, and the SCOTUS is an inappropriate authority to try to undo that. If you read the last paragraph of Thomas's dissent, it's clear he's more troubled with the laziness of the majority opinion than he is by the specific result. It reads like he wanted to really dig into the issues Alito raised in a concurring opinion, but didn't feel like he should because only Alito and Gorsuch concurred with that one, and debating those issues at length would be like bikeshedding. Maybe they were on the cusp of getting him to sign on, but they ran out of time and there were unresolved differences that led him to write the dissent. Thomas's dissent should get everyone to think carefully about the scope of rights to discipline children in loco parentis in various circumstances. If you send your children to a friend's house, or with their friends' parents on some trip or to some event, you're granting those parents virtually unlimited ordinary disciplinary authority (subject to criminal and family law limitations). Voluntarily sending your kids to school could be seen (and, as Thomas points out, was historically seen) to create much the same dynamic.
- EricE 5y ago
  Thank you - it's encouraging to see at least one other person not just absorb the pre-digested mass media swill as the gospel truth :p

lp0_on_fire 5y ago

It's not like this girl made a threat against someone. She's a teenager - it's pretty much in their job description to say stupid things that they'll regret later in life so I respectfully disagree with Justice Thomas. Thankfully the rest of the justices did, too. That being said there's a common trope coming from the loudest and most moral busybodies in academia that "Americans just want babysitters for their kids three quarters of the year". Sometimes I think it's projection.

petercooper 5y ago

I'm not American and free speech isn't an area I'm clued up on, but following on from that judge's words.. are there situations where more privileged/famous people have less freedom of speech (in a quasi-legal sense, rather than a 'social consequences' one) than others in the US?

gnicholas 5y ago
No, famous people have the same freedom of speech as anyone else. But the reasoning of this case indicates that a message sent by a high school student who has a million followers on twitter could be regulated by a school, even if that same message would not have been allowed to be regulated if sent by someone with 5 followers. This is because the large number of followers increases the likelihood of a "substantial disruption" (a term of art from prior cases). An interesting question: what if someone with 5 followers sends a tweet, which is then picked up and RT'd by someone with a million followers? Should the school be able to regulate the original message (i.e., punish the student) simply because someone with a large following agreed with them? Presumably they couldn't punish the student before the RT, but what about after?
jasode 5y ago
> are there situations where more privileged/famous people have less freedom of speech (in a quasi-legal sense, Not sure if this answers your question but some possible examples: - corporate insiders have "freedom of speech" restricted in the sense that they can be punished for "manipulating stock price". E.g. Elon Musk tweets: https://www.google.com/search?q=ceo+tweets+accussed+manipulating+stock https://www.google.com/search?q=ceo+tweets+accussed+manipula... - book authors writing fiction getting sued for libel/slander so some writers creatively get around it with the "small penis" rule: https://en.wikipedia.org/wiki/Small_penis_rule https://en.wikipedia.org/wiki/Small_penis_rule
KorematsuFred 5y ago
You have to see this with two lenses. Free speech is always about freedom from government control. Your employer can put whatever restriction on your speech that they so desire even outside of your workplace. In that sense famous people do have less freedom. For example basketball players promoting Nike can't wear any other shoes publicly. Second case is of government putting those restrictions on you. Can public school put such restrictions on students ? I do not know and I am not familiar with this case.
- walshemj 5y ago
  Tell that to Cristiano Ronaldo who dissed Coca Cola at the Euros. The cynic in me think he might have his own brand of flavored water to launch.
- unanswered 5y ago
  > Free speech is always about freedom from government control. You are confusing "free speech" and "the First Amendment". Free speech has nothing to do with government; it's a generally applicable concept. The First Amendment specifies a requirement for the government to respect freedom of speech. That wouldn't even make sense if freedom of speech weren't a general concept.
  - KorematsuFred 5y ago
    > That wouldn't even make sense if freedom of speech weren't a general concept. Free speech as a general concept is irrelevant in the eyes of law unless you have some specific law governing the specific scenarios. (Employees being punished for how they voted in general election.) Free speech could be a virtue but it is a virtue like "not lying". It is perfectly legal to lie in many circumstances.
    - unanswered 5y ago
      Sorry, what does this comment have to do with anything? I was responding to the claim "Free speech is always about freedom from government control", emphasis mine. Where did "in the eyes of law" come from? How is this contributing to the conversation? It's okay to just admit that someone else's clarification was helpful and move on. You don't have to add irrelevant, non-clarifying addenda in order to seem like the more knowledgeable party.
kube-system 5y ago
In as much as their privilege and fame might make their words more likely to influence people, possibly. > Advocacy of force or criminal activity does not receive First Amendment protections if (1) the advocacy is directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action. https://en.wikipedia.org/wiki/Imminent_lawless_action https://en.wikipedia.org/wiki/Imminent_lawless_action

lupire 5y ago

Ironic, since Thomas is the person who didn't mind having a negative effect on the Equal Employment Opportunity Commission and the Supreme Court with his behavior toward women and atheists.

trdtaylor1 5y ago
It's typically a good decision if Thomas is against it. In life and in court decisions.
EricE 5y ago
You mean the sham of Anita Hill? You'd think people like you would be thoroughly embarrassed to continually push these tropes - then again embarrassment requires self awareness and humility. If you actually read his dissent, instead of a hack summary, you would see he thinks they didn't go far enough in constraining the schools. Quite the opposite of what is implied by CNN. But hey, as long as someone holds a dissenting political opinion they aren't human and therefor fair game, right?

voxic11 5y ago

Speech reasonably interpreted as bearing the school’s imprimatur falls outside the scope of this opinion so these comments would need to be made personally and not "as the school team". The opinion still allows students consent to additional restrictions on their speech. Requiring such consent to attend regular school isn't allowed because students are required to attend school. But requiring such consent to participate in extracurricular activities like sports teams would still be allowed. So in your example the school would simply need to require consent from students to have their speech restricted before they can participate in extracurricular programs like the football team.

EricE 5y ago

His stance is less confusing if you actually read it in context, instead of carless (being very charitable) summation that completely misses his point. Ignorance or malice? Either is terrible. Here's the relevant part from the introduction of his dissent. Note he doesn't have issue with the outcome, but the extremely sloppy and haphazard way in which the decision was outlined. I quote: "The Court overrides that decision—without even mentioning the 150 years of history supporting the coach. Using broad brushstrokes, the majority outlines the scope of school authority. When students are on campus, the majority says, schools have authority in loco parentis—that is, as substitutes of parents—to discipline speech and conduct. Off campus, the authority of schools is somewhat less. At that level of generality, I agree. But the majority omits important detail. What authority does a school have when it operates in loco parentis? How much less authority do schools have over off-campus speech and conduct? And how does a court decide if speech is on or off campus? Disregarding these important issues, the majority simply posits three vague considerations and reaches an outcome. A more searching review reveals that schools historically could discipline students in circumstances like those presented here. Because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent. " https://www.supremecourt.gov/opinions/20pdf/20-255_g3bi.pdf https://www.supremecourt.gov/opinions/20pdf/20-255_g3bi.pdf Page 34 If you actually read his dissent, instead of a hack summary, you would see he thinks they didn't go far enough in constraining the schools. Quite the opposite of what is implied by CNN.

lp0_on_fire 5y ago
Unsurprising. CNN decided long ago that Thomas is "the other" and they'll never be charitable when it comes to people on that side of the political aisle. Before I get the deluge of "WHATABOUT fox news" comments. Yes, Fox news is horrible and they are never charitable either.
harshreality 5y ago
I'm just an amateur occasional Supreme Court-watcher, but just reading his dissent I wouldn't go so far as to say he thinks schools need to be more constrained than the majority does. He might or he might not. Or maybe I missed something you picked up on. What is clear to me is that he thinks there are crucial unresolved issues that the majority punted on. The process of the court's opinion-writing sometimes involves several justices circulating draft opinions and trying to recruit others to sign on. Thomas might have written such a draft opinion with very careful reasoning, perhaps even concurring in the majority's judgment, but nobody else was willing to sign on to some of his specific reasoning that he thought was crucial, so he took his toys and went home.

harshreality 5y ago

While I strongly disagree with Thomas's decision, I disagree on the basis of several of the issues that he himself points out as unaddressed by the majority. Specifically, the widespread compulsory nature of schooling today vs in the 19th century, which Alito's concurring opinion outlines, as well as the limited-scope of snapchat "stories"; it is not the student's fault that speech intended to be transitory and limited in distribution was screenshotted and amplified. This case was much more like speech at a casual in-person meet-up outside of school than Thomas wants to admit. Furthermore, the nature of public schools (and even most private schools) today is far less serious than schools of the 19th century or before. Even if it weren't for the issue of compulsory schooling, schools have abdicated most of their traditional responsibility for moral instruction of students, and the SCOTUS is an inappropriate authority to try to undo that. If you read the last paragraph of Thomas's dissent, it's clear he's more troubled with the laziness of the majority opinion than he is by the specific result. It reads like he wanted to really dig into the issues Alito raised in a concurring opinion, but didn't feel like he should because only Alito and Gorsuch concurred with that one, and debating those issues at length would be like bikeshedding. Maybe they were on the cusp of getting him to sign on, but they ran out of time and there were unresolved differences that led him to write the dissent. Thomas's dissent should get everyone to think carefully about the scope of rights to discipline children in loco parentis in various circumstances. If you send your children to a friend's house, or with their friends' parents on some trip or to some event, you're granting those parents virtually unlimited ordinary disciplinary authority (subject to criminal and family law limitations). Voluntarily sending your kids to school could be seen (and, as Thomas points out, was historically seen) to create much the same dynamic.

EricE 5y ago
Thank you - it's encouraging to see at least one other person not just absorb the pre-digested mass media swill as the gospel truth :p