On Wednesday, the Supreme Court decided that the First Amendment’s free-speech guarantees apply if you’re a high school student with some graphic opinions on football and cheerleading, but also that its free-association guarantees do not apply if you’re a farmworker in a California field. First, from NBC News:
The 8-1 ruling broadened First Amendment protections in an era when school children are in nearly constant contact with one another through social media and text messages. The decision did not protect all off-campus expression, but the court suggested that the exceptions, to be worked out in future cases, would be limited. "The leeway the First Amendment grants to schools," in light of the special characteristics of off-campus expression, "is diminished," wrote Justice Stephen Breyer.
It was a victory for Brandi Levy, who was a ninth grader at a Pennsylvania high school when she was punished for a message she posted to Snapchat one Saturday at a convenience store after discovering that she didn't make the varsity cheerleading team and would remain on the junior varsity squad. She used a vulgar four-letter word to write, "f--- school f--- softball f--- cheer f--- everything." When the message was discovered by one of the school's cheerleading coaches, Brandi was suspended from the junior varsity team for her entire sophomore year.
I applaud this decision in large part because I believe it is every teenager’s inalienable right to say, "Fuck Everything," at several points during those terrifying years, and to do so in whatever forum the teenager sees fit, and however dramatically the teenager wants to say it. And, certainly, they have the right to do it off school grounds.
Now a college student, Levy said she sent her message to blow off steam. "I was a 14-year-old kid expressing my feelings, and that's how kids do it, over social media," she said.
The other decision is far less merry and far more ominous. Fifty years ago, after a long campaign by farmworkers’ union head Cesar Chavez, organisers for the farmworkers union won the right under the law to organise workers in the fields during non-working hours. It was one of Chavez’s singular triumphs. And now, it’s gone. From NPR:
"The regulation appropriates a right to physically invade the growers' property," Chief Justice John Roberts wrote for the court's conservative majority. "The access regulation amounts to simple appropriation of private property."
The decision is a potentially mortal blow that threatens the very existence of the farmworkers union. However, the ruling stopped short of upending other laws that allow government officials to enter private property to inspect and enforce health and safety rules that cover everything [from] restaurants to toxic chemical sites.
If Roberts is willing to judge that the simple presence of a union organiser on private property constitutes an "appropriation," I think it’s a pretty safe bet that he and his conservative colleagues will get around to those health and safety rules sooner or later. As Mark Joseph Stern at Slate argues, Roberts has taken a truly radical position, no matter how narrow his decision appears to be at the moment.
The Supreme Court of 2021—stacked, as it is, with six conservative Republican-appointed justices—sees things differently. On Wednesday, the court’s conservative supermajority held that California’s law violates the Fifth Amendment, which bars the taking of private property for public use “without just compensation.” Remarkably, the majority held that the law constitutes a “per se taking”—not a mere regulation, but an “appropriation” of property that flouts the owners’ “right to exclude.”
The court’s 6–3 decision in Cedar Point Nursery v. Hassid is thus a crushing blow to organized labor, which often relies on workplace access to safeguard workers’ rights. It also undermines the broader legal framework that permits the government to impose all manner of regulations on private property, including workplace safety laws and nondiscrimination requirements. With Cedar Point, the Supreme Court has handed business owners a loaded gun to aim at every regulation they oppose.
At least a farmworker’s kid can curse John Roberts out on Snapchat and not have to worry about being suspended from school. Freedom is a many-sided beast.
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