A Busy Morning at the Supreme Court: Student Speech, Union Organizing, Executive Power, and Fleeing Suspects

There’s a lot to chew on in this morning’s cases, and I will have more thoughts as I’ve gone through them. Here are your quick takeaways:

Mahanoy Area School District v. B.L.: A high-school cheerleader got suspended from the team for a Snapchat post of her, middle finger extended, captioned “F*** school F*** softball F*** cheer F*** everything.” Under traditional caselaw, students have First Amendment rights for speech in school, but those rights are restricted in recognition of schools’ need for discipline. Justice Breyer’s 8-1 opinion ruled in her favor, but declined to establish a clear, bright-line rule against schools punishing off-campus speech:

[W]e do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus. The school’s regulatory interests remain significant in some off-campus circumstances….[S]everal types of off-campus behavior…may call for school regulation. These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers. (Emphasis added)

Only Justice Thomas, a skeptic of the caselaw on student speech rights, believed that the school’s authority extended to the power to punish the Snapchat. Of course, given that Snapchat posts are ephemeral, the real villains in this case were the fellow cheerleaders who made screenshots of the post and ended up literally making a federal case of this.

Cedar Point Nursery v. Hassid: The Fifth Amendment’s ban on government takings of property without compensation extends to regulations that limit uses of property. A California strawberry-growing business filed a lawsuit claiming that its property was taken by a California regulation that allows union organizers to enter its property to speak to employers about supporting a union. Chief Justice Roberts wrote a 6-3 opinion, with only the three liberals dissenting, siding with the growers and finding that the government unconstitutionally took the growers’ property right to say “get off my lawn”:

The access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. The regulation grants union organizers a right to physically enter and occupy the growers’ land for three hours per day, 120 days per year. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude. The right to exclude is “one of the most treasured” rights of property ownership.

Collins v. Yellen: A lot of money is at stake in lawsuits over how shareholders in Fannie Mae and Freddie Mac were treated by the government after it bailed out the two government-sponsored mortgage giants following the 2008 credit crisis. The Court did not resolve who will win, but the big-ticket item in Justice Alito’s opinion for a fractured but ultimately unanimous Court is the conclusion that the “for-cause” restriction on the president’s power to remove the head of the Federal Housing Finance Agency is unconstitutional:

The Constitution prohibits even modest restrictions on the President’s power to remove the head of an agency with a single top officer. The President must be able to remove not just officers who disobey his commands but also those he finds negligent and inefficient, those who exercise their discretion in a way that is not intelligent or wise, those who have different views of policy, those who come from a competing political party who is dead set against the President’s agenda, and those in whom he has simply lost confidence. (Quotations and citations omitted).

This comes on the heels of Monday’s decision in United States v. Arthrex, Inc., which held that the appointment of Administrative Patent Judges was unconstitutionally delegated too far into the bureaucracy. The Court is serious about policing these sorts of executive power issues, even if its remedies for violations are sometimes tepid.

Lange v. California: The Court’s last outstanding criminal case asked whether hot pursuit of a suspect is grounds for a search without a warrant under the Fourth Amendment when the suspect is only suspected of a misdemeanor, in this case a suspicion of DUI that led the police into the suspect’s garage. Justice Kagan’s opinion for the Court, like Breyer’s opinion in Mahanoy, refused to apply a bright-line rule:

The question presented here is whether the pursuit of a fleeing misdemeanor suspect always—or more legally put, categorically—qualifies as an exigent circumstance. We hold it does not. A great many misdemeanor pursuits involve exigencies allowing warrantless entry. But whether a given one does so turns on the particular facts of the case.

Justice Thomas, again writing alone but joined in this portion of his opinion by Justice Kavanaugh, added his view that even if there was a Fourth Amendment violation, the exclusionary rule would not apply because this kind of “hot pursuit” case does not involve intentional police misconduct of the sort that the rule exists to deter. Roberts and Alito argued for broader police rights to chase misdemeanor suspects.

This post has been updated to clarify that Justice Kavanaugh joined a portion of Justice Thomas’s opinion in Lange.