In an 8-1 decision this week, the Supreme Court found unconstitutional a Pennsylvania high school’s decision to suspend a teenage girl (“B. L.”) from the cheerleading squad after she posted a profane Snapchat criticizing the school and her team. “America’s public schools are the nurseries of democracy,” Associate Justice Stephen G. Breyer wrote for the Court’s majority. “Our representative democracy only works if we protect the ‘marketplace of ideas.’”
As the Court’s first decision on off-campus online student expression, the case, Mahanoy Area School District v. B. L. (2021), is a milestone in free speech jurisprudence. Yet despite the case’s novelty, the Court ruled on narrow grounds: citing uncertainty stemming from “the advent of computer-based learning” — and consistent with Justice Breyer’s comment during oral arguments that he was “frightened to death of writing a standard” writ large — the Court expressly declined to “set forth a broad, highly general First Amendment rule” defining off-campus speech and governing when and how schools can restrict such speech.
Justice Breyer’s majority opinion did, however, proffer three principles to guide the development of off-campus First Amendment law. Each principle, he asserted, should make future justices “skeptical” of school efforts to restrict what students say outside of school.
First, Justice Breyer wrote, schools “rarely” stand in loco parentis (Latin for “in the place of a parent”) when students are off campus. Second, courts should recognize that if schools can police off-campus expression, then students’ speech would be restricted around the clock, with the unacceptable consequence that students would lack safe havens where they could freely speak their minds.
Third, and most significantly, Justice Breyer linked student free speech to American democracy. His opinion is worth quoting at length here:
Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will.
Justice Breyer’s third principle is remarkable in part because it differs in a critical way from the previous two: it is not related to the off-campus nature of B. L.’s speech. Presumably, schools should function as “nurseries of democracy” both during and after school hours, meaning that a school’s interest in “protecting a student’s unpopular expression” may also apply to on-campus speech.
Moreover, Justice Breyer’s “nurseries of democracy” principle is novel in First Amendment law relating to student speech. Prior Supreme Court decisions reasoned that students should enjoy the “freedoms of the individual” and should be exposed to the “marketplace of ideas,” but no other ruling has made democratic participation the basis for a student’s right to freely express views about his or her school.
Where did this principle come from? Why was it included in the decision? And how does it impact the future of student speech? To answer these questions, we need to understand Justice Breyer’s judicial philosophy and his longstanding emphasis on democratic participation as a core constitutional value.
Justice Breyer is often characterized as a pragmatist, but in cases implicating fundamental issues of constitutional democracy — issues like free speech, federalism, and voting rights — his jurisprudence is deeply principled. Indeed, he is one of only a few justices in the Court’s history to have a coherent, systematic theory of the Constitution and of the way judges should interpret it. Of his contemporaries, only the late Antonin Scalia could be said to have developed a similar judicial philosophy.
As he explained in an important 2005 book, Justice Breyer sees “active liberty” — defined as “the freedom of the individual to participate in the government” — as the heart of the Constitution. Drawing on the nineteenth-century Swiss-French philosopher Benjamin Constant, who distinguished ancient liberty (“active and constant participation in collective power”) from modern liberty (the more passive freedom from government authority emphasized by Enlightenment thinkers), Justice Breyer has argued that judges should interpret the Constitution in light of its “democratic objective” of fostering “participatory self-government.”
In this democracy-centered view, the First Amendment’s purpose is not just to prevent governments from suppressing citizens’ speech, but to actively promote and stimulate the exchange and debate of ideas among citizens — especially ideas about politics, policy, and public issues as well as criticisms of government, political leaders, and their decisions. When a justice interprets the First Amendment, then, they should do so in a manner that strengthens citizens’ capacity to exercise their active liberty by means of their speech.
Bearing Justice Breyer’s judicial philosophy in mind helps us unlock the full meaning of a key part of the Mahanoy decision. Once again, his opinion is worth quoting at length:
Consider B. L.’s speech. Putting aside the vulgar language, the listener would hear criticism, of the team, the team’s coaches, and the school — in a word or two, criticism of the rules of a community of which B. L. forms a part… B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection… cf. Snyder v. Phelps…(2011) (First Amendment protects “even hurtful speech on public issues to ensure that we do not stifle public debate”)…
At first glance, this paragraph is perplexing. Why does Justice Breyer generously characterize B. L.’s Snapchats — one of which read “Fuck school fuck softball fuck cheer fuck everything” — as “criticism of the rules of a community”? Why does he approvingly quote from Snyder v. Phelps, a 2010 decision about “hurtful speech on public issues,” in a case about a teenage girl upset over not making the varsity cheerleading squad? And what does all of this have to do with the “unpopular ideas” and “informed public opinion” invoked by the opinion’s third principle?
Only when we consider Justice Breyer’s aims as a jurist does his opinion’s full meaning emerge: his “nurseries of democracy” conception of public education grows directly out of his active-liberty-oriented interpretive theory.
When Justice Breyer describes B. L.’s Snapchat as “criticism of the rules of a community,” he’s not just giving a teenager the benefit of the doubt. Rather, he is seeking to place B. L.’s rhetoric within an active liberty framework. In this understanding, the school is its own political “community.” Students are members, or citizens, of this community, subject to the authority of the community’s leaders — the cheerleading coaches (along with teachers and school officials), who, as Associate Justice Samuel Alito pointed out in a concurring opinion, wield power when they select team members, assign team roles, and allocate playing time.
When one understands a school in these quasi-political terms, B. L.’s message becomes not just an aggrieved Snapchat message but a “criticism” of a decision made by her community’s leaders. The question then becomes: does a member of such a community have the right to criticize its leaders? In Mahanoy, the Court decided in the affirmative: just as the First Amendment protects and promotes the right of adult citizens to dissent from their political leaders, so does it protect and promote the right of students to dissent from their coaches. By embracing this kind of student dissent, Justice Breyer is contending, schools can teach students how to properly criticize political authorities and can therefore prepare them for adult citizenship in free democratic society.[1]
If future justices were willing to carry this line of thinking to its logical conclusion, the result would be a significant expansion of student free speech rights. Consider, for example, the hypothetical case of a student who levied public criticisms against a school, perhaps even directly targeting individual teachers, coaches, or administrators. If student criticism of schools is a kind of political speech akin to adult criticism of government (and provided that the speech in question does not “substantially disrupt” education and is not obscene), a future Court could conceivably use Justice Breyer’s active liberty concept to grant the hypothetical speech First Amendment protection by regarding it as “criticism of the rules of a community.”
In an era of growing concern about societal openness to unorthodox views and increasing online engagement by young people, Justice Breyer has advanced a new, democracy-centered rationale for student free speech rights. There is, of course, no guarantee that future justices take up the active-liberty-inspired principle in his opinion, but it is meaningful that six other justices — including five appointed by conservative presidents — signed onto it.
Just as Justice Louis Brandeis’s dictum that states are the “laborator[ies]” of democracy has become synonymous with the concept of federalism, Justice Breyer’s dictum that public schools are the “nurseries of democracy” may become the basis for student free speech jurisprudence in the technological age. As his retirement looms, his incorporation of active liberty into First Amendment law, and its influence on the development of student free speech rights, may end up being one of his most significant legacies.
[1] This is not the first time Justice Breyer has linked children’s First Amendment rights to civic training. In a 2011 decision, the Court struck down a California law banning the sale of violent video games to children, ruling that “video games qualify for First Amendment protection.” In dissent, Justice Breyer argued that the California law was valid, in part because it represented a decision by parents to shield their children from pernicious content that could undermine their development into good democratic citizens: “This case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to making our system of government work.”
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