Justice Samuel Alito was the lone dissenter from the Supreme Court’s refusal Monday to hear what he deemed an important free speech issue in the case of an anti-abortion student who founded a pro-life club at her Indiana high school.
Alito said in his dissent that the student, a minor identified in court papers as “E.D.,” had sought approval to hang flyers at school to advertise meetups for the club, but that the school wouldn’t approve them because they had pictures of students with “Defund Planned Parenthood” placards.
The justice said the case highlighted a tension in need of a high court resolution regarding how lower courts apply student speech precedents.
In the 1969 case of Tinker v. Des Moines Independent Community School District, the Supreme Court said officials couldn’t censor students’ individual expression unless the school showed that the censored speech “would materially and substantially disrupt the work and discipline of the school.”
Alito contrasted Tinker, which involved students wearing armbands to protest the Vietnam War, with the 1988 case of Hazelwood School District v. Kuhlmeier, which involved censorship of the student newspaper. There, the court said that when it comes to school-sponsored activities, officials had a lower bar to regulate speech by showing that censorship is “reasonably related to legitimate pedagogical concerns.”
But after the Hazelwood ruling, Alito said that “lower courts have struggled to ascertain its precise limits, and in my view, clarification by this Court is in order.”
Dissents like Alito’s highlight issues that are important to the writing justice and any other justices who join them.
The George W. Bush appointee, who authored the Dobbs ruling overturning abortion rights, said the distinction between private and government speech is critical because the First Amendment’s speech protections only constrain censorship of private speech. He said he would have granted E.D.’s petition “to clarify the relationship between Hazelwood and our subsequent government-speech decisions. In an appropriate case,” he said, “we should do so.”
The federal appeals court that ruled against E.D. said that a threshold issue was whether to view the case through the Tinker or Hazelwood lens. The appeals court said that it was the latter and ruled that the school’s action “aligns with both the nature of the school walls as a limited forum for student expression and its broader pedagogical duty to create a stable, neutral educational environment.”