For decades the Supreme Court has embraced a separate set of rules for contexts in which the government acts in a managerial or institutional capacity, such as an employer or as the operator of public schools. Although scholars have criticized these decisions for various reasons, and many have noted how they are out of step with the rest of the Court’s jurisprudence, it is much less common for scholars to argue that these decisions might suggest what the future of the First Amendment will look like. This Essay undertakes that argument.
The Court’s recent school speech case Mahanoy v. B.L. offers a perfect vehicle for contemplating the future of the Court’s First Amendment jurisprudence. At first blush, this may seem improbable. Mahanoy involved the one-year suspension of a disgruntled teenager from the cheerleading squad after she posted the message “fuck cheer” on Snapchat after she was not selected for the varsity cheer team. But the Court’s overt embrace of an ad hoc case-by-case approach to student speech issues suggests the possibility of a seismic shift in the doctrine away from a default categorical approach to one full of balancing tests, sliding scales, and proportionality inquiries. It also leaves unresolved a whole host of important questions about the role of originalism in First Amendment cases, the proper analytical framework for speech made through new communication technologies, what counts as, and how to treat, content and viewpoint-based speech discrimination, and so much more.
While it might be easy to dismiss Mahanoy as a sui generis case reflecting the typically less doctrinal approach the Court has taken in other special circumstances—such as the operation of prisons, the regulation of government employees, and government speech—scholars should take this case seriously. The Court’s First Amendment jurisprudence stands at the precipice of great change. Given recent retirements at the Court and the willingness of at least some Justices to revisit its precedent in a host of other areas, Mahanoy may reflect the future of the First Amendment.
