There are many, many days when I’m grateful that social media didn’t exist when I was in high school. I’ll never forget the day I was cut from the high school basketball team. I just knew I’d been cheated. I just knew I’d been cut for a guy whose dad had better connections with the coach. If I had Snapchat back in the day, there is absolutely no doubt that I would have let every single one of my friends know exactly how I felt, at high volume and with extreme intensity.
In other words, I might have acted a bit like “B.L.”, a high school student at Mahanoy Area High School in Pennsylvania who just made a vital legal contribution to canceling American cancel culture. I’ll let 3rd Circuit Court of Appeals Judge Cheryl Ann Krause describe her plight (with profanity edited—this is a family newsletter!):
B.L. was frustrated: She had not advanced in cheerleading, was unhappy with her position on a private softball team, and was anxious about upcoming exams. So one Saturday, while hanging out with a friend at a local store, she decided to vent those frustrations. She took a photo of herself and her friend with their middle fingers raised and posted it to her Snapchat story. The snap was visible to about 250 “friends,” many of whom were MAHS students and some of whom were cheerleaders, and it was accompanied by a puerile caption: “F–k school f–k softball f–k cheer f–k everything.” To that post, B.L. added a second: “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else?”
You can predict what happened next. Someone took a screenshot of B.L.’s snap and showed it to a coach, but the coaches already knew—other students were already talking about the snap. And so the coaches took action:
The coaches decided B.L.’s snap violated team and school rules, which B.L. had acknowledged before joining the team, requiring cheerleaders to “have respect for [their] school, coaches, . . . [and] other cheerleaders”; avoid “foul language and inappropriate gestures”; and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches . . . on the internet.” They also felt B.L.’s snap violated a school rule requiring student athletes to “conduct[] themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.”
The coaches “removed B.L. from the J.V. team.” Some readers might be thinking, “Good. B.L. should show better judgment. Actions have consequences. Back in my day we couldn’t disrespect our coaches and expect to stay on the team.”
I’m thinking something entirely different. I’m thinking the school’s punitive action was bad. B.L. spoke on her own phone to her own friends on her own time. A government school’s jurisdiction over B.L.’s speech is limited, at best, and it does not and should not extend to private expressions of frustration, even if delivered via “snap” to 250 of your closest friends.
I’m also thinking that it’s downright dangerous to give public educational institutions the ability to take punitive action against students based on private off-campus expression. I can think of fewer constitutional doctrines that would give more rocket fuel to cancel culture and imperil the futures of more young kids—kids who would be subject to the whims of ever-shifting social mores that are often defined, on-the-fly, by angry activists.
B.L. and her parents, Lawrence and Betty Lou Levy, refused to accept the school’s decision. They sued, and they won—first at the district court and next at the 3rd Circuit Court of Appeals, where an Obama appointee, a Clinton appointee, and a Trump appointee united to affirm B.L.’s basic rights to free speech. Judge Krause (an Obama appointee) authored the opinion of the court, and her conclusion was powerful and true:
The heart of the School District’s arguments is that it has a duty to “inculcate the habits and manners of civility” in its students. To be sure, B.L.’s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so. Otherwise, we give school administrators the power to quash student expression deemed crude or offensive—which far too easily metastasizes into the power to censor valuable speech and legitimate criticism.
Why am I focusing so much on a single 3rd Circuit case about a single angry cheerleader? Because the school has appealed to the Supreme Court, and there’s a meaningful chance that SCOTUS may take the case. Indeed, the case is significant enough that it merited an extended analysis by Adam Liptak at the New York Times. It turns out that 3rd Circuit has broken with other federal courts of appeal, which have held that schools may discipline off-campus student speech that allegedly has a “close nexus to the school environment.”
The case presents a nearly ideal vehicle for the Supreme Court to do two things at once: shore up its student speech jurisprudence (conservative justices have been notoriously stingy in upholding student First Amendment rights) and remove a potent weapon from the social media mob.
Cancel culture depends in many ways on its ability to pressure institutions, including government institutions, into taking punitive action in response to offensive speech. If the social media mob could “only” publicly humiliate its targets, it would be bad enough. But it often does so much more. It often attempts to coerce schools and employers into taking direct action against offending students and employees.
To illustrate the point, let’s tell the terrible story of another cheerleader publicly shamed and punished for an offensive social media post made when she was 15 years old. Over the weekend, the New York Times published a long piece about Mimi Groves, a high school graduate from Loudon County, Virginia. In 2016, when Groves was a freshman and had just gotten her learner’s permit, she looked into a smartphone camera and said, “I can drive” and then used the N-word.
The video was three seconds long, but someone kept it and ultimately forwarded it to a young man named Jimmy Galligan, who saved it for use “when the time was right.”
That time, according to Galligan, happened when Groves posted in support of Black Lives Matter on Instagram. Galligan called her out, and then Groves’s world turned upside down:
[Groves’s] alarm at [Galligan’s] comment turned to panic as friends began calling, directing her to the source of a brewing social media furor. Mr. Galligan, who had waited until Ms. Groves had chosen a college, had publicly posted the video that afternoon. Within hours, it had been shared to Snapchat, TikTok and Twitter, where furious calls mounted for the University of Tennessee to revoke its admission offer.
By that June evening, about a week after Mr. Floyd’s killing, teenagers across the country had begun leveraging social media to call out their peers for racist behavior. Some students set up anonymous pages on Instagram devoted to holding classmates accountable, including in Loudoun County.
The consequences were swift. Over the next two days, Ms. Groves was removed from the university’s cheer team. She then withdrew from the school under pressure from admissions officials, who told her they had received hundreds of emails and phone calls from outraged alumni, students and the public. (Emphasis added.)
There are so many notable and troubling things about that story. Of course Groves should not have used the N-word. But does that three-second mistake when she was 15 years old merit a massive public shame campaign? Does it justify state action to punish her years-old mistake?
The Supreme Court can’t calm down Twitter. It can’t restore grace to American life. It certainly can’t introduce a sense of proportion and perspective to a nation that is rapidly losing its grip on both. But it can restrain the government from becoming the online mob’s mighty club, the weapon that can punish its targets even if they have the fortitude to delete Twitter, plug their online ears, and weather the vicious social storm.
And it can do so by doing exactly what the 3rd Circuit did: reaffirming basic First Amendment doctrine and reminding America that (in Judge Krause’s eloquent words) upholding free speech rights teaches a “deeper and more enduring version of respect for civility and the ‘hazardous freedom’ that is our national treasure and the ‘basis of our national strength.’”
One more thing …
Readers know that I’m a broken record on a few key cultural and political issues. Superhero movies are good. DC is better than Marvel. The Memphis Grizzlies have the best young core in the NBA. The Last Jedi was so bad that it just might be “the abomination that causes desolation” as foretold by the prophet Daniel.
Oh, and here’s another: Both sides need to stop catastrophizing American politics. No more Flight 93 rhetoric. It leads to a mindset that declares, “Desperate times call for desperate measures.” In reality, desperate measures are helping create desperate times.
And if you think catastrophic rhetoric exists only on the right, think again. I’d urge everyone to read this powerful newsletter from Matthew Yglesias. Progressive catastrophism, he says, “is everywhere.”
Basically, the understanding is that whoever can paint the darkest possible portrait of the status quo is the one who is showing the most commitment to the cause. And you see this norm at work across climate change, health care, criminal justice reform, the economy, and everything else. If you’re not saying the sky is falling, that shows you don’t really care. A true comrade in the struggle would deny that any progress has been made or insist that any good news is trivial.
More:
In my recent post “A better way to cure recessions,” I noted that the personal savings rate is up in the United States (down from its peak when everyone got their $1,200 but still well above the pre-pandemic baseline) and also that “unlike during the Great Recession, the 67 percent or so of the public who owns a home and the 55 percent of Americans who own stock have seen their net worth rise.”
In the very next paragraph, I acknowledged that this is happening “amidst stories about overwhelmed food banks from San Antonio to Miami and beyond” but I got a lot of blowback for pointing out that most people are doing okay as if that was a way of dismissing the suffering of the minority of people who’ve lost their jobs and are now in desperate need of relief.
Similarly, back in late May, I ran into accidental intra-office controversy by pitching a piece about how police killings of African-Americans had become less common since Ferguson. My thought was that this was good, it showed that political pressure for reform was delivering results. But it was heard by many people as dismissing the problem, or ignoring the lived experiences of people who’ve suffered at the hands of the police.
Read the whole thing. For years I’ve been telling anyone who’ll listen that there are two kinds of pieces I write that get the most pushback—anything against Trump and anything that pushes back against the crisis narrative on the right. (Those two topics are related, of course.)
The restoration of reason to American political discourse is going to require bipartisan opposition to catastrophism. Yglesias’ piece is an important contribution to that effort.
One last thing …
Here it is. The video you’ve been waiting for—the condensed video version of the SpaceX Starship’s high-altitude test. It’s more impressive up close. You can almost taste that Martian sand as you watch it fly.
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