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This Supreme Court guards the First Amendment — and neglects the Fourth

A cheerleader’s vulgar “snaps” are protected. Strip-searched students are hardly defended.

The Supreme Court. (J. Scott Applewhite/AP)
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Last week, the Supreme Court ruled 8 to 1 that the profane Snapchat posts of a cheerleader — disappointed that she wasn’t picked for the varsity squad — are protected speech, and that her school went too far when it suspended her from cheerleading for a year as a result. Writing for the majority, Justice Stephen G. Breyer concluded: “It might be tempting to dismiss” the cheerleader’s middle-finger and f-word-laden messages as “unworthy” of “robust First Amendment protections” But, he argued, “sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

Legal scholars Leah Litman and Kate Shaw hailed the decision as a “great” example of Breyer’s overall body of work, applauding him for articulating a “crystal clear” standard. Law professor Justin Driver said: “Public school students should be dancing in the streets.”

It’s the latest in a line of First Amendment cases wherein the court headed by Chief Justice John G. Roberts Jr. has eagerly interceded, taking an expansive view in what might be seen as circumstances involving “superfluous,” injurious or prurient speech: Videos of animals being crushed for the sake of cruelty-driven sexual arousal; anti-LGBT protests at military funerals; and false claims of receiving military honors have all been recognized as constitutionally protected.

But while this court has busily expanded freedom of expression in an array of, frankly, marginal cases, it has abdicated its responsibility to safeguard the core constitutional guarantee against unreasonable search and seizure — passing on chances to protect citizens’ arguably more urgent right to freedom from heavy-handed physical invasion.

It aggressively stands up for the First Amendment and frequently ignores the Fourth Amendment.

The Bill of Rights lays out our most fundamental principles, the terms upon which the framers had to agree before ratifying the Constitution and giving the federal government power over the people. Though its justices can’t hear every case, it is not for the Supreme Court to cherry-pick which amendments are worthy of enforcement and which are not. If the court signals, by its case selection, that some rights count less than others, then the Constitution cannot be relied on to protect everyone. At the very least, the central principle of each amendment must be given substantive meaning, and its protection safeguarded.

That’s not, however, what the Roberts court is doing. Its Fourth Amendment record is relatively paltry and tilts toward weakening constitutional protections: It has held that individuals searched by police are not always protected, even when officers do not know the law; nor those subject to multiple intrusive strip searches when police wrongly make an arrest, incorrectly thinking a valid arrest warrant existed and absent reasonable suspicion of finding contraband. And even when a police officer effects an unlawful stop, evidence obtained from a subsequent arrest can still be admissible if an outstanding warrant exists.

That leaves the potential for widespread intrusion on citizens’ rights in a municipality such as Ferguson, Mo., where it was reported in 2015 that the Justice Department found there were around 16,000 outstanding warrants in a town of just over 20,000 residents.

Meanwhile, the cheerleader’s victory — both that she was granted a Supreme Court hearing in a case that merely affirmed the lower court, and the ruling itself — illustrates how this court emphasizes — privileges, really — some parts of the Constitution over others, including, if not especially, when it comes to students. It devoted its limited time to exalt the right to send foulmouthed snaps, absent “‘substantial disruption’ of a school activity,” while saying little about the all-too-routine instances where bodily integrity is trampled.

Both the First and Fourth Amendments are sacrosanct, and both should protect schoolchildren — even in loco parentis situations. When a cheerleader’s vulgarities were at stake, the Roberts court was keen to restrain school officials’ power. But when students are corporally punished, interrogated or their possessions searched, schools are given more of a free hand, and students’ rights curtailed.

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This is the case even though the stakes are, arguably, higher in Fourth Amendment cases — where bodily integrity is implicated — than in First Amendment cases, and even though there is ample opportunity for today’s court to expand Fourth Amendment protections with the same zeal.

In contrast to its line of First Amendment cases, though, the Roberts court’s Fourth Amendment jurisprudence has been minimal: In Safford Unified School District No. 1 v. Redding, even when the court found that school officials’ search of a 13-year-old girl — forcing her to remove her outer clothes, then to shake out her bra and underwear, looking for prescription and over-the-counter pain pills (that weren’t found) — went too far, and was, indeed, a Fourth Amendment violation, the justices found that the officials were protected by qualified immunity. The court also left open the possibility that a student could still be strip-searched in this way, and that such a search would simply require greater suspicion than an uncorroborated allegation of a fellow student, herself under suspicion.

A lower court apparently noticed: The next year, a similar strip-search of an eighth-grader took place — this time a security guard shook a girl’s bra — but the case was dismissed because of the Supreme Court’s line of qualified immunity cases.

Federal appeals courts have upheld harsh, coercive interrogation of schoolchildren, including a case in which a 16-year-old was so distressed following an interrogation by school officials and police that he fled their custody and jumped to his death. The Roberts court has never clarified whether this practice is unreasonable under the Constitution, and only found, quite narrowly, that for purposes of a school interrogation, a child’s age is relevant in determining whether that child is deemed to be in custody — despite police officers being stationed in schools throughout the country.

The Supreme Court allows school officials greater latitude to search students than the Fourth Amendment normally allows for searches of criminal suspects, sometimes without any suspicion. In the 1995 case Vernonia School District 47J v. Acton and the 2002 case Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, the court upheld the constitutionality of drug testing as a condition for participation in school activities.

This lax approach to the Fourth Amendment overlaps with a public school landscape where studies find that students of color are disciplined at higher rates than their White counterparts. Liberal and conservative justices have felt obliged to note that race and class are sometimes at play in circumstances implicating Fourth Amendment freedoms.

In District of Columbia v. Wesby, a case where several people were arrested at a house party following a noise complaint, and they later sued for false arrest, the lower court’s holding that police lacked probable cause was unanimously overturned by the Roberts court. Nevertheless, during oral argument, Justice Sonia Sotomayor observed that “if police officers arrived at a wealthy home and it was White teenagers having a party … I doubt very much those kids would be arrested.” Justice Samuel A. Alito Jr. wondered, “if we moved all of these facts to an affluent community,” would the case be argued differently?

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For anyone other than schoolchildren, there must be a showing of a high degree of suspicion of criminal activity to justify a search. But in the 1984 case New Jersey v. T.L.O., Justice Byron White wrote: “Teachers and school administrators, it is said, act in loco parentis … their authority is that of the parent, not the State, and is therefore not subject to the limits of the Fourth Amendment.”

Compare that to Breyer’s view that the cheerleader “spoke under circumstances where the school did not stand in loco parentis” — even though she criticized the school and cheerleading in publicly available messages. In T.L.O., the court deemed it unrealistic for teachers and administrators to know the specifics of Supreme Court Fourth Amendment jurisprudence. But in the cheerleader’s case, the court was happy to lay out numerous specific factors that must be considered before punishing a student for speech: whether the speech takes place off-campus; whether bullying or harassment was involved; whether the school was identified by name; and how the speech was transmitted.

The decision shows the juxtaposition between the elaborate protections provided for students’ speech, while highlighting the court’s reluctance to protect their persons and property. Only Justice Clarence Thomas, the lone dissenter, seemed to recognize the disconnect, pointing out that “schools historically could discipline students” both in regard to their speech and their persons. The same logic could hold the other way: Constitutional consistency requires genuine limits on what schools can do to children’s bodies, just as there are limits protecting their speech.

So, if the justices think that teachers can read First Amendment cases closely enough to follow their rules, why have such a different approach to the Fourth Amendment?

They probably would stand by their discretion in taking cases where they believe they can clarify the Constitution’s protections. But it’s not hard to imagine that they can more readily find sympathy with children engaging in ill-advised Snapchat rants than children being searched for drugs, legal or illicit. Put another way, by focusing on certain cases and giving short shrift to others, the court signals, intentionally or not, what and who are — and aren’t — worthy of constitutional protection.

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