Document Type
Article
Abstract
This Article applies the rights mediation model from Jamal Greene’s book How Rights Went Wrong in the context of public-school students’ rights to free expression. Doing so highlights the flaws in the rights absolutism that currently informs our constitutional jurisprudence. Under rights absolutism, once a court determines that state action burdens First Amendment interests, courts protect the First Amendment interest with such rigor that they ignore all other interests implicated in the litigation. In the case of the foul-mouthed cheerleader, Mahanoy Area School District v. B.L., a rights mediation model might not have changed the outcome, but it would have accorded more weight to the interests of teachers, coaches, the school district, and other students affected by B.L.’s expression. Extrapolating from this case, the Article illustrates how rights mediation changes the nature of rights adjudication. Rights absolutism encourages litigants to pursue impact litigation in the hope of establishing broad precedents that occupy the field. As B.L.’s case demonstrates, such precedents limit courts’ options, encourage extreme positions, and prevent parties and localities from working towards compromise solutions suitable for their own communities and tailored to their circumstances. First Amendment absolutism infantilizes us by treating all speech as equally valuable, dumbing down civil discourse. Rights absolutism generally infantilizes our politics by allowing distant courts to make decisions better worked out through democratic processes. Courts are still necessary as a check on a tyranny of the majority. Courts must intervene where Equal Protection or procedural Due Process interests are implicated. Those doctrines suffice to safeguard the free expression rights of public-school students. Allowing Equal Protection and Due Process analyses to inform free speech doctrine would make our First Amendment jurisprudence more consistent with that of other doctrinal areas affecting the constitutional rights of public-school students.
Recommended Citation
D. A. J. Telman,
Our Dumb First Amendment: The Case of the Foul-Mouthed Cheerleader,
126
W. Va. L. Rev.
561
(2024).
Available at:
https://researchrepository.wvu.edu/wvlr/vol126/iss2/7