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Speaker 1: Clause. The Supreme Court justice has struggled with a case

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Speaker 1: about a high school cheerleader who claims her First Amendment

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Speaker 1: rights were violated when she was suspended from the team

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Speaker 1: because of a profane snapchat post. Some of the justices,

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Speaker 1: like Selia Sotomayor and Brett Kavanaugh, seemed to think the

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Speaker 1: punishment of a year long suspension from the team was excessive.

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Speaker 1: You're punishing her here because she went on the internet

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Speaker 1: and cursed and used to curse word related to what

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Speaker 1: to her unhappiness with the school and cheering right. She's competitive,

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Speaker 1: she cares. She blew off steam like millions of other

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Speaker 1: kids have when they're disappointed about being cut from the

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Speaker 1: high school team or not being in the starting lineup.

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Speaker 1: While others were concerned that any sort of broad ruling

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Speaker 1: would have unforeseen consequences, here's Justice Stephen Bryer standard joining

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Speaker 1: me his First Amendment expert Eugene Va, a professor at

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Speaker 1: u c l A Law school. So fifty million public

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Speaker 1: school students in the country, they're all on social media.

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Speaker 1: How significant is this case? Well, it could be huge

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Speaker 1: or it could be narrow. It all depends on how

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Speaker 1: the justices decide that indeed, it could be huger even

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Speaker 1: than social media. So the funny thing about the way

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Speaker 1: the argument went is the lawyer for the school, the

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Speaker 1: local government entity least of last, leading leading Supreme Court advocacy,

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Speaker 1: starts out with this very speech protective art. She says, Look,

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Speaker 1: Tinker is the official test war First Amendment protection fork

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Speaker 1: through closed students. It's actually very speech protective. It's so

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Speaker 1: speech protective that it's not a problem to apply it

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Speaker 1: to social media and apply it to other off campus speech.

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Speaker 1: To be sure, in certain situations, such as when somebody

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Speaker 1: is saying something that might interfere with the way that

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Speaker 1: their athletic programs is operating or something like that, then

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Speaker 1: the speech can be punished. But generally speaking, most political, religious,

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Speaker 1: and other such speeches really strongly protected on campus and

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Speaker 1: off And the lawyer for the federal government, who was

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Speaker 1: mostly supporting the school district position on this, said the

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Speaker 1: same thing. On the other hand, upcomes David Cole, the

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Speaker 1: director of the a c l U, who is the

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Speaker 1: lawyer for the student, and he says, oh, this Tinker test,

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Speaker 1: which is actually very unprotected. It allows all sorts of

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Speaker 1: restrictions death school and that's why it can't be extended

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Speaker 1: off campus because it provides so little protection that it

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Speaker 1: has to do cabins to school speech. So because of

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Speaker 1: the imperatives of the litigation, they were just trying to

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Speaker 1: win the case for their clients, they in a sense

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Speaker 1: almost flipped size on the bigger picture question of the

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Speaker 1: scope of Tinker. So that question is going to be

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Speaker 1: very much in play. Potentially, the court could hand down

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Speaker 1: a decision, for example, that says yes, Tinker applies on

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Speaker 1: campus as well as off campus because Tinker is just

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Speaker 1: speech protective standers, and that could affect be tried for

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Speaker 1: through twelve students everywhere. Tinker is a landmark case from

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Speaker 1: nineteen sixty nine where the courts said that students don't

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Speaker 1: shed their constitutional rights to freedom of speech at the

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Speaker 1: schoolhouse gate. Can you explain the standard established in Tinker? Sure?

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Speaker 1: The Tinker standards says, generally speaking, through twelve student speech

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Speaker 1: can be restricted if it is reasonably likely to create

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Speaker 1: material and substantial disruption. So think about it as a

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Speaker 1: disruptive speech. Sanders Generally speaking, you can't punish ordinary citizens

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Speaker 1: speech because it's disrupted. For example, if you're picketing some

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Speaker 1: government building that could be quite disruptive of the activity

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Speaker 1: in the building. But unless you're actually blocking entrances, are

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Speaker 1: threatening people, or whatever else, you have the right to

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Speaker 1: do that. But at least at school, Tinker says, if

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Speaker 1: the speech is substantially and materially disruptive, then in that

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Speaker 1: case it can indep be restrict So the question presented

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Speaker 1: to the court here is what if this is beach

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Speaker 1: off campus but it risks creating disruption on campus, does

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Speaker 1: the school have the power to restrict that speech too,

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Speaker 1: or would that unconstitutionally give the school sort of twenty

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Speaker 1: four seven power over students speech in a way that

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Speaker 1: the First Amendment cannot tell. At one particular thing that's

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Speaker 1: really important that played a big role with the argument

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Speaker 1: is this question of the Heckler's Vito say, somebody standing

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Speaker 1: in the street corner and is saying things that offend

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Speaker 1: the crowds. Could be political, religious, could be about race,

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Speaker 1: about sexual orientation, about religion, about whatever else. And somebody

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Speaker 1: in the crowd threatened to attack, and and the police

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Speaker 1: officers and says, Okay, I'm gonna break all this up

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Speaker 1: by removing the speaker, by telling the speaker to stop,

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Speaker 1: because the hecklers are endangering the speaker and potentially causing

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Speaker 1: a fight and others breach of the peace, that's not allowed.

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Speaker 1: That would be a so called heckler's veto. Um. It

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Speaker 1: would be the government essentially stepping in on the side

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Speaker 1: of the hecklers to suppress the speaker. And the court

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Speaker 1: has said that is not permissible because otherwise that we

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Speaker 1: give heckos too much power. But lower courts applying Tinker

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Speaker 1: have said well. Tinker says that speech can be restricted

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Speaker 1: on campus if it's disruptive enough, and that disruption could

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Speaker 1: very well come from people heckling, which is to stay

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Speaker 1: in this context, either interrupting class or possibly fighting with

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Speaker 1: a student or something along those lines. So the lower courts,

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Speaker 1: at least some of them, have said the heckler's veto

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Speaker 1: is a good basis for restricting speech on campus. One

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Speaker 1: particularly notorious case involved some students at a California school

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Speaker 1: wearing t shirts with the American platform the American flag,

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Speaker 1: and this is because it was sincer demyo and apparently

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Speaker 1: some students were upset at these American Flag wars because

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Speaker 1: they thought that that was disrespectful and kind of anti

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Speaker 1: Hispanic or anti Mexican when that's done on sincer demayo

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Speaker 1: and the school said, well, yeah, you have to take

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Speaker 1: off your American flag t shirts. And the ninth or

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Speaker 1: it said yeah, the school was allowed to do that

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Speaker 1: because there was a threat of disruption, and yeah, the

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Speaker 1: Heckler's Vito is a good basis first strict in speech

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Speaker 1: on campus. Now, Lisa Blad, the lawyer for the school

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Speaker 1: district in the BM case, said no, no, no, no, no.

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Speaker 1: Heckler's Vito can't be used as a basis for restricting

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Speaker 1: speech on campus. And that's why the Tinker standards Because

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Speaker 1: it rejects the Hecklers viso. The Tinker standard is actually

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Speaker 1: quite speech protective and thus can be applied off campus.

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Speaker 1: This speech didn't cause any disruption to school functions. How

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Speaker 1: does that fit in here? Well, so, the lower court

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Speaker 1: says that the destruction test doesn't even apply to off

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Speaker 1: campus speech. Off campus speech if it's protected against criminal

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Speaker 1: punishment or against the aliabilities, protected against school discipline, at

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Speaker 1: least generally speaking. So as a result, it doesn't matter

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Speaker 1: if it's a disruptive or not. The school wants to

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Speaker 1: be able to show that it was disruptive not to

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Speaker 1: all of the school, but to the operation of the

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Speaker 1: cheerleading squads. They say, Look, as she wasn't expelled from school,

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Speaker 1: she wasn't suspended from school. She was only suspended from

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Speaker 1: secheer leading because her speech being disrespectful to the whole

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Speaker 1: enterprise of cheerleading and being disrespectful therefore to the coach

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Speaker 1: and her teammates, is disrupting the effectiveness of this particular

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Speaker 1: cheerleading program. So that would be the school dark. Some

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Speaker 1: of the justices seemed to pick up on the point

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Speaker 1: that this was an extracurricular activity. Does that give the

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Speaker 1: school more leeway to limit outside speech. So that's a

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Speaker 1: good question, and we don't know what the court will

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Speaker 1: say about that. The question presented to the court in

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Speaker 1: the petition, the question that the Court agreed to hear

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Speaker 1: Justin's focus on that. It just asks whether the Tinker

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Speaker 1: standard of plastoff campus. And usually the court tries to

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Speaker 1: stick with a question presented, So some justices might say, look,

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Speaker 1: we're going to leave this question of were there any

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Speaker 1: special rules for rest for curricular activities. We're going to

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Speaker 1: leave them to a different case where that is the

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Speaker 1: issue that we agreed to hear. In this case, we

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Speaker 1: are deciding the question presented, which is all about our

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Speaker 1: campus speech, regardless of whether it relates to an extracurricular activity.

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Speaker 1: At the same time, you could imagine some of the justices,

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Speaker 1: or maybe the majority of the justice is saying, look,

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Speaker 1: we ought to decide the case narrowly with an eye

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Speaker 1: towards the particular facts of this particular situation. And in

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Speaker 1: this situation, the punishment for the student was simply suspensioned

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Speaker 1: from an extracurricular activity. That kind of the threat of

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Speaker 1: that kind of punishment isn't this chilling speech. It doesn't

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Speaker 1: deprive somebody of their right to an education. It only

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Speaker 1: deprived them of the ability to be on the cheerleading squad.

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Speaker 1: And that's not a big deal. So you can imagine

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Speaker 1: the court coming up with this rule, although you could

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Speaker 1: also imagine some justice is setting that for many students,

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Speaker 1: participation to me in an extracurricular activity is very important

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Speaker 1: for them, both kind of personally and some respects educationally.

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Speaker 1: Um and threatening removal from that kind of activity for

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Speaker 1: your speech is indeed going to be chilling. Because the

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Speaker 1: recall in this case, you know, the speech was just

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Speaker 1: kind of this girl complaining about about not making a

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Speaker 1: varsity But in principle, you can imagine somebody saying something

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Speaker 1: political or saying something about a religious topic or some

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Speaker 1: other topics that might cause tension within the team, and

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Speaker 1: then you could imagine the coach the case, fine, you're

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Speaker 1: off the team because you're saying things about immigration or

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Speaker 1: about race or about religion that people don't like, and

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Speaker 1: that again could be quite chilling, a really quite valuable speech.

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Speaker 1: So those are the kind of questions of the court

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Speaker 1: might have to consist. So you had Justice Alito saying

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Speaker 1: they needed a clear rule and Justice Brier saying, I'm

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Speaker 1: frightened to death of writing a standard. Do you have

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Speaker 1: any idea where they might come out in this? You know,

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Speaker 1: it's very hard to tell. It's always hard to tell

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Speaker 1: for moral argument what the justices are going to do,

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Speaker 1: because often the justices really are asking questions because they're

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Speaker 1: not really sure what the answer is, or sometimes they're

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Speaker 1: just floating possible to areas or envisioning possible objections to

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Speaker 1: the position that they that they might want to ultimately

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Speaker 1: come to, likewise, of course, through nine of them. So

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Speaker 1: some justices might go one way some justices might go

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Speaker 1: another way. Some justice is might go a third or

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Speaker 1: fourth way. So it's really hard to tell what the

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Speaker 1: justices are going to decide. I do think there was

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Speaker 1: general concern on the part of many justices about schools

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Speaker 1: having undo power um to restrict students speech, especially speech that,

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Speaker 1: unlike the speech in this particular case, really does deal

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Speaker 1: with kind of bigger picture political, religious, social issues, including

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Speaker 1: those issues as they intersect with the school like, for example,

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Speaker 1: claims of maybe misconduct or sexual misconduct by teachers or

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Speaker 1: classmates or whatever. On the other hand, I do think

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Speaker 1: that you saw a lot of justices recognizing that schools

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Speaker 1: need considerable authority to make sure that the schooling goes

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Speaker 1: on effectively. So again, I think it's very hard to

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Speaker 1: figure out what they're going to do until one reached

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Speaker 1: the opinion. A couple of months from that, Justice Brett

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Speaker 1: Kavanaugh suggested a narrow kind of ruling that might not

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Speaker 1: give much guidance to lower courts. Well, that's what I

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Speaker 1: started with. You know, you could imagine this opinion being

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Speaker 1: written very narrowly, or you could imagine this opinion being

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Speaker 1: written relatively or only A lot depends on whether they

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Speaker 1: justices want to resolve this issue now themselves or leave

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Speaker 1: it to lower courts. So, for example, you can imagine

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Speaker 1: the Court saying Tinker does apply off campus because it's

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Speaker 1: important to prevent disruption on campus, and off campus speech

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Speaker 1: can cause on campus disruption. But we're not resolving, for example,

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Speaker 1: whether Tinker allows speech to be restricted because of a

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Speaker 1: Heckler's veto. We're not resolving how disruptive the speech needs

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Speaker 1: to be. We're not resolving whether there would be a

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Speaker 1: different standard for speech that's disruptive nearly of an extracurricular

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Speaker 1: activity and the only thing that's happening to the student

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Speaker 1: is the students suspended from that activity. We leave that

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Speaker 1: for lower courts to resolves. You can imagine the Court

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Speaker 1: doing that, and if it does well, then if the

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Speaker 1: things will go back to lower courts and then have

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Speaker 1: that to reconsider some of these questions. You could also

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Speaker 1: imagine the court, for example, making the decisions that is

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Speaker 1: on its face quite narrow, but by flagging certain issues

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Speaker 1: by saying, you know, it's an interesting question whether speech

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Speaker 1: can be restricted on or off campus because of the

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Speaker 1: hecklers veto. Then in that case, perhaps lower courts will

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Speaker 1: be emboldened to try to resolve that, and then maybe

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Speaker 1: another such case will go back up to these to

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Speaker 1: the Supreme Court. It's possible. At the same time, I

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Speaker 1: do think that Justice Alito has a good point that

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Speaker 1: government officials and students deserve some guidance as to what

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Speaker 1: can be said and what can be punished, and if

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Speaker 1: the Court just sort of just just leaves things uncertain,

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Speaker 1: then there won't be much protection for speech, and there

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Speaker 1: won't be much protection for the legitimate interests of school boards.

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Speaker 1: Does it seem though, that they're likely to reverse the

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Speaker 1: Third Circuit because that decision was so broad, Well, I'm

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Speaker 1: not sure. I'm not sure. Again, I think it might depend,

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Speaker 1: for at least some justicesum how much speech restriction they

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Speaker 1: see Tinker as allowing. So if, for example, just as

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Speaker 1: the leader is persuaded that on campus, Tinker does allow

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Speaker 1: restriction of political speech, religious speech, speech on social matters

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Speaker 1: so long as classmates can be offended enough, I don't

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Speaker 1: think he'd want to extend that off campus. So you

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Speaker 1: can imagine him saying, look, on campus, which has to

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Speaker 1: be pretty heavily restricted, or at least schools have to

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Speaker 1: have the power to to restrict speech. But if that's so,

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Speaker 1: then in that case we need to have a more

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Speaker 1: speech protective rule of or he could even say I

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Speaker 1: think that speech on campus should be pretty broadly protected,

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Speaker 1: but my colleague is disagreed. And given that my colleagues

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Speaker 1: disagree and view Tinker as giving schools a lot of

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Speaker 1: power on campus all than in that case, at the

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Speaker 1: very least, I think they should be denied that power

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Speaker 1: off campus. You can imagine some of the justices taking

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Speaker 1: but again you could also imagine some of the justices saying, well,

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Speaker 1: speech off campus should be treated the same way as

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Speaker 1: on campus because both can have pomful effects on campus,

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Speaker 1: and because it's often so hard to tell what's up

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Speaker 1: what counts is on or off campus thatst all. A

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Speaker 1: lot of these things can be viewed on campus, even

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Speaker 1: if they're sent from uf campus. But given that this

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Speaker 1: is so, we need to make sure that there is

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Speaker 1: a pretty bright line exception for for get political, religious,

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Speaker 1: and similar kinds of speech. So it's really hard to predict.

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Speaker 1: I think what it is that the justices are going

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Speaker 1: to do here. Have Supreme Court decisions in the past,

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Speaker 1: let's say, at ten, fifteen, twenty years, have they weakened

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Speaker 1: generally weakened protections for students speech. Yes, after Tinker, which

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Speaker 1: after all came out in favor of the students there

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Speaker 1: the students wearing the black armbands because the court said

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Speaker 1: there wasn't enough evidence of disruption after things are In

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Speaker 1: case Bessel School District coursus Fraser, that said, well, vulgar

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Speaker 1: speech speech about kind of a full of sexual innuendo

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Speaker 1: can be restricted on campus. And by the way, I

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Speaker 1: think it's pretty clear that this Fraser doctrine does not

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Speaker 1: apply off campus. You can't punish a student for off

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Speaker 1: campus sulgarity if they're not disrupted. Likewise, in in Morse Frederick,

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Speaker 1: the court said, well, on campus speech that seems to

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Speaker 1: encourage illegal drung you can indep restricted. And again though

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Speaker 1: the court stressed that this was limited to on campus

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Speaker 1: or at least that school sponsored activities there. The speech

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Speaker 1: was physically off campus, but it was in the context

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Speaker 1: of a school and sponsored school in school endorsed it too.

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Speaker 1: So yes, the court has authorized more restrictions on student

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Speaker 1: speech in some measurement. That having been said, I don't

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Speaker 1: think that the tenor of the argument in this case

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Speaker 1: was just well, the school boards need to win in

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Speaker 1: because schools. Schools should have broad power. I think many

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Speaker 1: of the justices recognized that the power of the schools

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Speaker 1: has to stop at some point, especially when we're talking

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Speaker 1: about speech that's offensive for politically. So, finally, you wrote

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Speaker 1: an amiguous brief in this case, what was your position?

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Speaker 1: So our position was it looks like at least lower

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Speaker 1: courts seemed to say that Tinker does allow a lot

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Speaker 1: of political speech and the like to be restricted on campus,

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Speaker 1: so long is it's offensive enough to be disruptive. If

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Speaker 1: that's the rule, then in that case that has to

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Speaker 1: be limited to on campus speech. You can't authorize twenty

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Speaker 1: four seven control over student speech where every time a

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Speaker 1: student says something that might offend classmates, even at a

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Speaker 1: political rally, war online, where at a church, or in

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Speaker 1: a letter to the editor of a newspaper, that the

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Speaker 1: student would have to worry about about possibly being suspended

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Speaker 1: or expelled at that So that was our position, and

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Speaker 1: again that position rested on the lever courts generally speaking,

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Speaker 1: viewing Tinker is not very speech protective, and you can

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Speaker 1: imagine the court saying, well, we don't care what that

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Speaker 1: brief said, because we really think the tinker is very

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Speaker 1: speech protective, and if it broadly speech protective on campus

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Speaker 1: with only a few mirror restrictions allowed, then maybe it

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Speaker 1: should be applied dot campus. So you can imagine the

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Speaker 1: court saying that, thanks Eugene, that Professor Eugene Vallak of

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Speaker 1: u c l A Law School, did you order You

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Speaker 1: don't have to answer that question. I'll answer the question

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Speaker 1: you want answers. I think I'm entitled. You want answers?

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Speaker 1: What the truth? You can't handle the truth? The confrontation

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Speaker 1: between Tom Cruise and Jack Nicholson in a Few Good

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Speaker 1: Men is high drama, but cross examination just doesn't happen

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Speaker 1: that way in a real courtroom. Still, every criminal defendant

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Speaker 1: has the constitutional right to confront the witnesses against them,

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Speaker 1: and the Supreme Court is going to concern it or

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Speaker 1: whether defendants weighed that constitutional right when they open up

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Speaker 1: the door to certain evidence. Joining me as former federal

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Speaker 1: prosecutor Robert Mints, a partner Macarter and English Bob, just

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Speaker 1: about everyone's heard about a defendant's right to confront witnesses,

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Speaker 1: but explain the confrontation clause the Sixth Amendment gives a

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Speaker 1: defendant and a criminal prosecution the right to be confronted

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Speaker 1: with the witnesses against him. What that means is that

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Speaker 1: at a criminal trial which you're charged with an offense,

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Speaker 1: your lawyer has the right to cross examine any witnesses

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Speaker 1: who testifies against you. Prosecutors are not allowed to admit

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Speaker 1: statement by other witnesses to present before the jury in

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Speaker 1: culpatory evidence without giving the defendant lawyer the right to

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Speaker 1: test the strength of that testimony by cross examining them

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Speaker 1: in court in front of the jury. What happened in

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Speaker 1: this case tell us a little bit about the facts

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Speaker 1: in this case. This is a case of Darryl Hemphel,

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Speaker 1: who has tried for murder in New York State after

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Speaker 1: another defendant was tried for the same crime. The facts

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Speaker 1: are actually quite unusual because it involved another defendant who

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Speaker 1: ended up seeding guilty to possession of a firearm after

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Speaker 1: the murder prosecution against him had ended in a mistrial.

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Speaker 1: The case was about the two thousand and six shooting

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Speaker 1: death of a child who was a passenger in a

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Speaker 1: car that drove by a fight on the street and

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Speaker 1: the bronze. The first defendant was tried and the jury

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Speaker 1: could not agree on the guilt of the defendant and

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Speaker 1: so it ended into the mistrial. Instead, what prosecutors did

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Speaker 1: as they allowed this second defendant to plead guilty to

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Speaker 1: possession of a handgun. But it was critical here is

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Speaker 1: that that defendant pled guilty to possession of a three

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Speaker 1: fifty seven revolver, which was not the gun that was

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Speaker 1: used in the murder. So what happened at trial to

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Speaker 1: lead the judge to allow in the statement of another defendant.

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Speaker 1: At the trial, Misterhampful, his defense lawyer, advanced one of

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Speaker 1: the most based defenses that you see in criminal cases,

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Speaker 1: and that is that his clients did not commit the

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Speaker 1: crime and some other person did. They tried to point

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Speaker 1: the finger at the other defendant who had already pled

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Speaker 1: guilty to possession of that different firearms. The court ruled

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Speaker 1: in that case that once the defendant made that argument

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Speaker 1: in front of the jury, the defense player had opened

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Speaker 1: the door and allowed prosecutors to use the plea elocution,

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Speaker 1: which is the statement that the other defendant made when

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Speaker 1: he entered his guilty plea admitting possession of the three

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Speaker 1: fifty seven revolver at the scene of the shooting that

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Speaker 1: was not the gun. That killed the child, and so

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Speaker 1: the judge said that the defense lawyer had created a

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Speaker 1: misimpression in front of the jury. The prosecutors were entitled

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Speaker 1: to correct by admitting that statement in evidence at the trial.

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Speaker 1: The problem from the defense side is that the defense

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Speaker 1: lawyer never had a chance to challenge that statement. The

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Speaker 1: defendant six Amendment rights across examine that witness who was

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Speaker 1: essentially testify against him, was never permitted at the trial.

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Speaker 1: And that's the question that now before the Supreme Court.

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Speaker 1: And in fact, that statement that the other defendant made

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Speaker 1: in his plea elocution that was never subject to cross

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Speaker 1: examination at all. Now that's exactly right, because it was

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Speaker 1: a plea elocution. It's just a statement that's made at

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Speaker 1: a guilty plea where a defendant has to admit the

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Speaker 1: elements of the crime in order for a judge to

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Speaker 1: accept that plea. So it's not cross examined by the

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Speaker 1: prosecution or anybody else at the time. And what the

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Speaker 1: defense here is arguing is that any competent defense attorney

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Speaker 1: who had the ability to cross examine this other defendant

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Speaker 1: could have PopEd holes in that narrative by asking the

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Speaker 1: other suspect whether he, for example, also possessed the murder

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Speaker 1: weapon in addition to the weapon that he fled guilty to,

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Speaker 1: or by exploring the motivations of that defendant to plead

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Speaker 1: guilty to that weapon's charge when he had originally been

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Speaker 1: charged with murdering. Lower courts around the country are split

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Speaker 1: on this issue. One reason that the Supreme Court might

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Speaker 1: have taken the case. In your opinion as a former prosecutor,

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Speaker 1: do you think the court should have allowed in that

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Speaker 1: plea elocution. I think there's a good argument by the

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Speaker 1: defense that that statement should not come in without the

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Speaker 1: ability for the defense to cross examine the witness for

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Speaker 1: the very reason you mentioned earlier, which is when the

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Speaker 1: statement was made, was not even in the context of

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Speaker 1: another trial where it was said that the cross examination

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Speaker 1: by some other lawyer. It was simply a statement that

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Speaker 1: was necessary in order to allow that defendant to enter

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Speaker 1: a guilty plea, and it was not in any way

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Speaker 1: challenged by any other lawyer as to its veracity or

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Speaker 1: its completeness, And there were other defenses available. Even if

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Speaker 1: the defendant in that case did possess the other handgun,

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Speaker 1: there was no testimony about whether he possessed other handguns,

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Speaker 1: or whether he might not have been telling the truth

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Speaker 1: in order to try to get a better plea from

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Speaker 1: the prosecutor since he was facing a murder charge and

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Speaker 1: ultimately only played guilty to a weapon's violation. Thanks Bob.

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Speaker 1: That's Robert Mints of McCarter and English and that's it

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Speaker 1: for the edition of the Bloomberg Law Show. Remember you

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Speaker 1: can always get the latest legal news honor Bloomberg Lawn podcast.

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Speaker 1: You can find them on Apple Podcasts, Spotify, and wherever

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Speaker 1: listening to Bloomberg