Government

Trump Lawyer Tells SCOTUS It's Illegal For Kids To Say Filthy Cusses

You know, to 'protect' the First Amendment.

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(Image via Getty)

“Fuck school fuck softball fuck cheer fuck everything,” a Pennsylvania high school student posted on Snapchat one Saturday about three years ago, accompanied by a photo of herself and a pal giving the finger. The student, B.L., was angry about not making varsity cheer as a sophomore, and posted the “Snap” to about 250 friends, at least one of whom screenshotted the image and shared it widely.

“Several students, both cheerleaders and non-cheerleaders,” narced her out, going to the cheer coaches “visibly upset,” to “express their concerns that [B.L.’s] Snaps were inappropriate.” Because high school sucks like that.

But instead of telling her to cut it out and delivering the standard lecture on inappropriate social media posts leading inevitably to living in a van down by the river, the coaches threw her off the cheer team. 

Gimme an L! Gimme an A! Gimme a W! Gimme a SUIT!

So her family sued, saying the punishment violated B.L.’s First Amendment rights. And both the trial court and the Third Circuit agreed, but the Mahanoy Area School District appealed to the Supreme Court, and the Justices granted certiorari on January 8. So either they’ll hold that the school had a right to impose punishment on out-of-school speech, or they’ll agree that B.L. had a First Amendment right to act like a normal 15-year-old and the school should just chill out.

OR! Might there be a third possibility no one had counted on?

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Well, no, there wouldn’t. But that didn’t stop Donald Trump’s attorney Jay Sekulow, ringmaster at the AHEM “charitable law firm” run by his family under the moniker The American Center for Law and Justice, from weighing in.

This week the ACLJ filed an amicus brief in support of … NOBODY. Their position is that schools who “face a constant temptation to impose a suffocating blanket of political correctness, institutional image protection, or both, upon the educational atmosphere,” shouldn’t be allow to do cancel cultures to children. But also it should be illegal for kids to say filthy cusses to their (so called) friends, because “There is no First Amendment right for a minor to broadcast obscene language and gestures to other minors.”

That’s right, they’re going to “protect” the First Amendment by taking the narrow path for schools to police children’s speech if it might materially and substantially disrupt the work and discipline of the school, and broaden it to a generalized right of government to police all interactions between minors.

Gotta protect the children! With a muzzle.

Making a truly bizarre analogy to a case involving “fighting words,” Sekulow argues that the problem with B.L.’s Snap wasn’t that she criticized the school, but that she used profanity.

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B.L.’s expletive here was simply a crude insult of the sort that aims to incite a hostile reaction. The whole point of using foul language instead of “I’m sick of” or “The heck with” would seem to be to offend. While Cohen v. California immunized an adult’s profane printed political expression on a jacket against criminal prosecution, the Fraser case clarified that this ruling does not necessarily apply to students addressing other students, as here.

If public schools, as an agent of the state, could penalize kids for having a pottymouth on Snap, they’d have to expel the entire student body. But if that’s what it takes to “protect” the First Amendment, it’s a sacrifice Jay Sekulow is willing to make.

“It’s rare to see someone with enough hubris (or stupidity) to claim that their brief asking the Court to narrow the First Amendment is actually meant to protect free speech,” First Amendment lawyer Ari Cohn told ATL. “It’s a clinic in dishonesty and incompetence.”

Presumably the court will treat this latest outburst by Sekulow the way they did his appearance to argue that Trump had a magical shield of “temporary presidential immunity” that thwarted New York’s attempts to investigate his company for criminal conduct, i.e., like a fart in an elevator, holding their noses and waiting for the doors to open and let them out already.

Will they say “to heck with you,” Jay Sekulow? “I’m sick of you” and your pathetic, TV antics? Or will they just say FUCK IT, only to be carted away by the bailiffs?

Only time will tell.

Mahanoy Area School District, Petitioner v. B. L., a Minor, By and Through Her Father, Lawrence Levy and Her Mother, Betty Lou Levy [SCOTUS Docket]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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