Hazelwood School District v. Kuhlmeier

The Supreme Court has been stripping away students' free speech rights for decades. They don't want you to think for yourself or speak your mind. You might end up making podcasts like this. If you're not a 5-4 Premium member, you're not hearing every episode and also lame! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Hosted on Acast. See acast.com/privacy https://acast.com/privacy for more information. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  Well, here are arguments first this afternoon in number 86, 836, Hazelwood School District versus Kathy Kuhlmeier.

• 0:12Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about Hazelwood School District v. Kuhlmeier. This case is from the 1980s and centers around the free speech rights of public school students. In 1983, journalism students at Hazelwood East High School in St. Louis, Missouri, wrote a handful of articles about some issues they and their classmates were facing, like divorce and teen pregnancy. But before the articles could appear in the school paper, the principal of the school determined they were inappropriate and prevented them from being published. The editor-in-chief and two student reporters sued the school for violating their First Amendment rights,

• 0:55Speaker 01

  but the Supreme Court ruled in favor of the school, stating that officials there have the right to control what appears in the student paper because technically, the paper is part of the school curriculum.

• 1:06Speaker 02

  The 5-3 majority of the court agreed with the principal, Justice Byron White, writing that students don't automatically have the same First Amendment rights as adults in other settings.

• 1:16Speaker 01

  This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:26Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have radicalized our nation like group chats radicalizing our nation's billionaires. I'm Peter. I'm here with Michael.

• 1:37Michael Liroff?

  Hey, everybody.

• 1:38Peter Shamshiri?

  And Rhiannon.

• 1:39Speaker 05

  Hi, everyone. I don't know about this, actually. The billionaires have a group chat?

• 1:44Michael Liroff?

  A network of group chats.

• 1:45Peter Shamshiri?

  Yeah, there's a story in Semaphore about essentially how the tech billionaires and a bunch of adjacent journalists have all, for the last several years, been in group chats together. And that those group chats have sort of radicalized all of them.

• 2:05Speaker 05

  Radicalized good or radicalized bad?

• 2:08Peter Shamshiri?

  Oh, radicalized bad. Well, you know billionaires.

• 2:10Speaker 05

  They are billionaires. Yeah, yeah, yeah.

• 2:13Peter Shamshiri?

  I'm talking about like the David Saxes of the world, Marc Andreessen. The basic story is that like through a combination of just them digesting right wing propaganda and also right wing actors within the chats, sort of like facilitating it. They slowly moved towards Trump and Trumpism over the course of several years. Part of that was like literally purging dissent from the group chats.

• 2:35Michael Liroff?

  Yeah.

• 2:36Peter Shamshiri?

  There's a hilarious screenshot where I think David Sacks says like, too many people in here have Trump derangement syndrome. And then someone's like, I don't think I, we have Trump derangement syndrome. We just disagree with you. And then it's like Tucker Carlson left the chat.

• 2:50Michael Liroff?

  It's so good. It's so good. Like, of course, these guys, their self perception and their perception of these chats is insane. So one of the excerpts says, "Many of the roughly 20 participants I spoke to also felt a genuine sentimental attachment to the spaces and believed in their value. One participant in the groups described them as quote unquote, 'Republic of Letters', a reference to the long distance intellectual correspondence of the 17th century.

• 3:20Peter Shamshiri?

  Yeah, for sure. This is gotta like a Republic of Letters, guys.

• 3:23Michael Liroff?

  Others often invoked European salon culture.

• 3:27Peter Shamshiri?

  Dear Benjamin Franklin, check out this video.

• 3:32Michael Liroff?

  You know, these chats are just like, oh, you know, race science is real.

• 3:36Speaker 05

  Right.

• 3:36Michael Liroff?

  And blacks are genetically inferior, for sure.

• 3:39Peter Shamshiri?

  Yeah.

• 3:39Michael Liroff?

  Phrenology group chats.

• 3:41Peter Shamshiri?

  There is straight up no women in the chats, at least none that were reported. It's one of those things where it's like, we all know that these people radicalized over the last several years. And you can sort of piece together that something like this existed. But it's nice to get some on the ground reporting, you know?

• 3:55Michael Liroff?

  Yeah.

• 3:56Peter Shamshiri?

  Now I need to find out what happened to Marc Andreessen's head. Why is it?

• 4:00Michael Liroff?

  Why is it like that?

• 4:01Peter Shamshiri?

  Why is it shaped like that? Why does it look like he was born and they just immediately took a fucking dice into it?

• 4:10Speaker 05

  He came through the canal real weird.

• 4:13Peter Shamshiri?

  Absolutely.

• 4:14Speaker 05

  Came through that canal, straight bonkers.

• 4:17Peter Shamshiri?

  That was before the technology for yanking them out was any good.

• 4:21Speaker 05

  It was banging against the sides.

• 4:23Peter Shamshiri?

  It was archaic back then.

• 4:27Peter Shamshiri?

  The suction devices they were using to pull babies out of birth canals back then.

• 4:32Speaker 05

  That's a forcep injury. I can clock that.

• 4:35Michael Liroff?

  While we're talking about deranged group chats and misshapen heads and all that, have you guys ever seen the Elon Musk quote about like cesarean sections, C-sections?

• 4:45Peter Shamshiri?

  Yeah, yeah. He thinks that they make you dumber, or sorry, they make you smarter because they don't constrict the brain or the skull or whatever.

• 4:52Michael Liroff?

  Right. He thinks if you have a C-section, your brain is bigger. Because going through the birth canal shrinks the skull and then I guess excess brain leaks out your ears or something?

• 5:06Speaker 05

  Yeah, like where does it go? Where does the mass of the brain go?

• 5:09Peter Shamshiri?

  Right.

• 5:10Michael Liroff?

  It's so stupid. It's so stupid.

• 5:13Peter Shamshiri?

  It inhibits the growth of the brain, guys.

• 5:18Peter Shamshiri?

  No, when, when I was in like first grade, there was a redhead kid in our class, a ginger kid who got bullied for it. And one day I remember him shouting back like, a lot of people would kill for red hair. And it was like one of those things that you could just tell his mom told him. And when Elon Musk is like, it's, it's cool to have a giant head. It's, it's actually makes you smarter to have an enormous head, you know? That reminds me of that sort of thing.

• 5:42Michael Liroff?

  Yes, yes.

• 5:44Peter Shamshiri?

  All right. We've digressed for too long. Today's case, Hazelwood School District v. Colmeyer. This is a case from 1988 about students' free speech rights. Student journalists at Hazelwood East High School in Missouri had a student newspaper where in the early 1980s, they published a couple of articles that the administration did not like. One was about teen pregnancy. The other was about divorce. Just filthy, disgusting stuff.

• 6:16Speaker 05

  Que l' scandale!

• 6:17Peter Shamshiri?

  You don't want in your school paper. So the school spiked the columns and the students sued arguing that this was their free speech right.

• 6:27Peter Shamshiri?

  But the Supreme Court, in a five to three decision, sided with the school.

• 6:32Speaker 05

  Yeah, they sure did. You know, shout out, we must uplift the voice, the work of a soldier, Kathy Kuhlmeier. In 1983, Kathy Kuhlmeier was the editor in chief of The Spectrum, the official newspaper of Hazelwood East High School. Now, in May of that year, Kathy edited and planned to publish a few stories in The Spectrum that were controversial, if you're a Puritan idiot. But to Kathy and the student staff of the newspaper, you know, these were important stories that like, had to do with issues that really affected the lives of their audience, their fellow students. You know, one story, like you said,

• 7:14Speaker 05

  Peter, it was about divorce. Another was about child runaways. And the final kind of controversial story was about teen pregnancy. Now, Kathy Kuhlmeier, still to this day, I saw an article about her presenting to a journalism class out of school last year, in 2024. So she is still out here talking about this. And in that presentation, she talked about like, how relevant an issue teen pregnancy was at their school. She said like, at any given time, like dozens of girls were pregnant at high school. And so this was a big issue. And she wanted to interview some of those girls and get their stories out there. Now, that article, of course, references to birth control,

• 7:59Speaker 05

  references, obviously, to sexual activity. But this was like a feature piece. This was an interview piece where Kathy and other student editors at The Spectrum were telling the story of these girls. So there wasn't like, argument in this piece. There wasn't like, everybody should be on birth control, or anything like that. And importantly, Kathy, as editor in chief, made sure that all of the true names of students weren't included in the story. The three girls who were interviewed for the teen pregnancy story were identified with pseudonyms. The story about divorce, meanwhile, included an interview with a student whose parents had gotten a divorce.

• 8:44Speaker 05

  An incredible quote where the girl just like shits on her deadbeat dad.

• 8:50Michael Liroff?

  Yes.

• 8:50Speaker 05

  She's like, he wasn't around. He fucking stayed out late playing cards. She, she didn't say fucking, I'm not reading the quote here, right?

• 8:57Michael Liroff?

  Yeah.

• 8:57Speaker 05

  He was out late playing cards. He was always arguing. He never spent enough time with me and my mom. Yeah, just like telling her story, her perspective of why her parents split up.

• 9:08Michael Liroff?

  I forget what the activity was, but she says something like, he chose bowling over his family or some shit like that, or poker or one of.

• 9:15Speaker 05

  Get him, drag his ass, fucking roast him in the spectrum.

• 9:19Peter Shamshiri?

  That's the, the late seventies. Your deadbeat dad is just bowling.

• 9:26Speaker 05

  Now let's talk a little bit about the spectrum itself, like the paper, who funded it? How does it get printed? That kind of thing. Cause this is important, obviously involving a public school and the decisions of public school officials about publishing and about what gets put out there in the student paper. The spectrum was published as part of a journalism class, a high school journalism class. It was put out every three weeks. A few thousand copies were distributed and the school district board of education funded the cost of printing the paper as well as, you know, textbooks for the journalism class, supplies for that class, et cetera. Now the regular process for the spectrum would be that the advisor to the journalism

• 10:07Speaker 05

  class, basically like their teacher would submit page proofs to the principal, Robert Reynolds, and submitted those page proofs for approval for the principal to kind of give the thumbs up that they can send it to the printer and publish the paper. But for this issue, teen pregnancy story, divorce story, Principal Reynolds saw those stories and in what he says like was a rush to make sure that the newspaper got published before the end of the school year, he pulled. Not just those stories, not just those two stories that bothered him, but two entire pages of the newspaper before publication. Now, two entire pages included not just those two stories,

• 10:52Speaker 05

  but five other stories that like weren't controversial in any way in substance. So a total of seven stories get pulled from the paper. And the students weren't told about Principal Reynolds' decision. They didn't find out until the newspaper had already been printed. It was delivered to the school the next week. And, you know, in terms of Principal Reynolds' alleged objection to these stories, he said the pregnancy story was inappropriate for your younger students. You know, those references, again, to birth control, to sexual activity. That's, I don't like that for the younger students, he said. And in addition, he put forth this argument that even though the girls interviewed

• 11:33Speaker 05

  in the story about teen pregnancy were identified with pseudonyms, he thought that maybe enough details were in the story that the, that the girls could be identified anyway. For the divorce story.

• 11:46Michael Liroff?

  I love this. This is so good.

• 11:48Speaker 05

  It's so, yeah, it's like, kind of like revelatory, right? Like, I wonder what problems you're having at home with your wife, sir? He said that the student's family, the girl whose parents had been divorced, the family should have been given an opportunity to respond in the spectrum in that story before it was published.

• 12:07Michael Liroff?

  The original men's rights activist.

• 12:09Speaker 05

  Real men's rights guy. Yeah. Guys can't bowl? Guys can't bowl anymore?

• 12:15Speaker 05

  So these pages get pulled from the newspaper. The student journalists find out. And so editor in chief Kathy Colmeyer and her brave soldiers, high school reporters Leslie Smart and Leanne Tippett, filed a lawsuit in January 1984. They were represented by the ACLU, arguing that their First Amendment rights to free speech, to publication of this newspaper.

• 12:42Speaker 05

  Had been violated and that's how we get to the Supreme Court.

• 12:46Michael Liroff?

  Where they won 8-0, you know?

• 12:48Peter Shamshiri?

  That's right.

• 12:49Michael Liroff?

  The thrilling victory for student speech.

• 12:52Peter Shamshiri?

  We should mention this case is five to three, but that's just because Kennedy is not confirmed yet. There's a vacancy on the court. So nothing too, nothing too interesting going on there. So let's talk about the law. This is a case about the free speech rights of students. We've talked about this a bit before in the bong hits for Jesus case, if you remember that from a few years back. But here's a bit of a refresher. Before the mid-century or so, students were not really viewed as having First Amendment rights. But then you get a case called Tinker v. Des Moines, where students wore black armbands as part of a protest against the Vietnam War. And the Supreme Court said that is protected under

• 13:35Peter Shamshiri?

  the First Amendment. And the basic rule they created is that students can express themselves as long as what they're doing is not disruptive and does not interfere with the speech rights of others. So they sort of create this test where like if they're not disrupting the educational experience, it's fine, right? But then, starting in the 80s, the conservatives on the court start to peel that back a little bit because they didn't like Tinker to begin with. So in the mid 80s, you get a case called Bethel School District v. Fraser, which we've talked about also, where a student gave a speech that was full of sexual puns. And the Supreme Court said that the school could in fact punish him for that because that is vulgar speech.

• 14:18Speaker 05

  I'll work long and hard for you.

• 14:20Peter Shamshiri?

  Yeah, that sort of thing.

• 14:22Speaker 05

  Yeah.

• 14:22Peter Shamshiri?

  And then you get this case, which is not about vulgar speech. It's about a couple of articles that are actually quite substantive, arguably political even, or at least have political overtones.

• 14:33Peter Shamshiri?

  The majority here is written by Justice Byron White. Now, again, if you look at the precedent, the rule from the Tinker case is that student speech is protected unless it's either disruptive or interferes with someone else's rights. And then there's this other rule that says, well, and also it can't be lewd, it can't be vulgar. When courts talk about whether something is disruptive of the educational environment, they're talking about like material disruption, interference with someone's ability to do classwork. So these articles would not really be considered disruptive, right? Disruption isn't like you read something you don't like, or you read something that might be a little bit edgy. Yeah. And it like impacts how you feel. Yeah. That's not what courts mean by disruption.

• 15:17Peter Shamshiri?

  They mean like a protester is standing up and shouting when you're trying to learn, right? Someone is blocking your entry into the school. That's sort of material disruption, right? These articles obviously are not disrupting the educational environment in that sense, nor are they really interfering with anyone else's rights, right? Nor are they vulgar. So what are the conservatives to do, right? Under the existing rule, the students probably should win. So they create a new rule. They say this case is different because there's a difference between schools having to tolerate student expression and schools having to affirmatively promote student expression, right? Keep in mind, the school helped fund the newspaper, right?

• 16:02Peter Shamshiri?

  Yeah. White says that extracurricular activities like theater or the school paper, quote, "may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting." And so he basically says that the school has the right to manage its curriculum and therefore they can cut these articles if they want, right? They can manage the school paper. Now, I think he's

• 16:27Peter Shamshiri?

  Being a little bit sneaky here because the school paper you could argue is part of the curriculum in the sense that like it's a method for teaching students about writing and journalism, right? But the contents of the paper are not actually part of the curriculum, right? They're not being taught to students in any way, right? So I don't think you can just fold it into the same category like that and just say, well, it's part of the curriculum.

• 16:53Speaker 05

  Yeah, like students in a journalism class might be taught how to interview a subject or format a column of a newspaper or construct a headline, but it's not part of the curriculum to like run a story on teen pregnancy or like the substance of the interview on teen pregnancy is not part of the curriculum.

• 17:16Peter Shamshiri?

  Right, it's the output, it's the output, right? It's sort of like a research paper is the output of the students absorbing the curriculum and trying to apply it.

• 17:24Michael Liroff?

  Your assignment might be cover an event at school and that could be a football game or it could be the musical, right? Or it could be a class assembly.

• 17:34Peter Shamshiri?

  Right, and then you publish it in the in the school paper, just like you would, yeah, write a paper or give a presentation about history or whatever it is, right?

• 17:43Speaker 05

  Yeah.

• 17:44Peter Shamshiri?

  There's also a discussion in the majority about whether the paper is what's called a public forum. The idea is that if the school had created the expectation that students could publish whatever they want in the paper, that would create a public forum where the school would not be able to restrict the articles so easily.

• 18:02Michael Liroff?

  Yeah, and I just want to add, like, it's always good to to remind yourself, like, public schools, the administrators, the school board, they work for the state, right? They're the government and the policies they set are the policies of the state or local government. And so when they say something like, you know, you have editorial discretion in the school newspaper, that has implications for the First Amendment because it's a state actor. Making representations about what sort of speech is and is not allowed in this venue.

• 18:36Peter Shamshiri?

  Right. And so because the principal had approval rights, here, the court says it's not a public forum. Right. But one thing the dissent points out is that the paper itself publishes a statement at the beginning of every school year, saying that the paper operates under the contours of the First Amendment, and they use the Tinker standard about disruptive speech specifically. So the school allows the paper to publish that statement, saying, we operate under this standard. Right. Which I think would indicate that it is a public forum, or at least takes on some of the characteristics of a public forum.

• 19:08Speaker 05

  Totally.

• 19:08Peter Shamshiri?

  Right. I think one thing the majority never deals with, that we sort of just touched on a bit, is like, what's the difference between this and a student just expressing their opinion in the classroom? Right. Like, all of the majority's reasoning applies to the classroom setting itself. Right. Classroom discussions are part of the curriculum, quote unquote, in the same way. They're part of the educational experience. They're built atop school funds. When you're in a classroom discussion, you're sitting at a desk, in a chair paid for by the school's funds. So are students not allowed to share opinions in that setting? If the school doesn't approve of those opinions, right? How can that be consistent with the idea that students have free speech rights?

• 19:50Peter Shamshiri?

  I don't think the court ever really squares that circle. I just don't think that they ever actually make clear what makes the school paper different from those settings. Is it just like more people read it? More people are hearing it?

• 20:01Speaker 05

  Yeah, I also wonder about like, you know, is there a debate team? Like, I sat in high school classrooms where we talked about, we debated things like abortion.

• 20:11Peter Shamshiri?

  Yeah, yeah, yeah.

• 20:13Speaker 05

  And like, there's intense, political and moral even, issues that are debated and discussed openly as part of high school curriculum. So.

• 20:26Speaker 05

  You can see the majority here doing a quite kind of ticky tack thing and making a special category where the substance, what is in these stories, is really not that special.

• 20:38Michael Liroff?

  Right.

• 20:38Peter Shamshiri?

  Right. I think the bottom line here is that the conservatives on the court just don't believe that students should have protected speech rights.

• 20:46Speaker 05

  Yes, that's it.

• 20:47Peter Shamshiri?

  They don't agree with the tinker standard. And rather than just overturning it and holding that students don't have free speech rights, they just keep creating these new exceptions that allow schools to discipline students for their speech. So like, first you get the vulgar exception, and then you get like this weird school paper exception, right? Later you have the bong hits for Jesus thing where John Roberts is like, well, it sort of promotes drug use. So that's, that's bad, too.

• 21:13Michael Liroff?

  Right.

• 21:13Peter Shamshiri?

  Every time students do something, the Supreme Court's like, we actually found a new exception.

• 21:18Michael Liroff?

  Yeah.

• 21:18Speaker 05

  Yeah.

• 21:18Peter Shamshiri?

  For student speech.

• 21:20Michael Liroff?

  So there is a dissent by Justice Brennan. It's a good one. He pretty meticulously like pulls apart the, the majority's logic. There's a bit that he's particularly strong on, I think, where he talks about having respect for the pedagogical mission of the school and your ability to manage their curricula and all that. But he's like, but look, there's a difference between, you know, what kids talk about in the cafeteria versus standing up in the middle of calculus class, right? Like,

• 21:52Speaker 05

  Yeah.

• 21:52Michael Liroff?

  The same behavior in a different context can be disruptive and you can regulate it without imperiling free speech because it is disruptive to the pedagogical mission of the school, right? You know, if you get up on your soapbox and start talking about why Ronald Wigan is the worst in 1982 or whatever, in the middle of calculus class, yeah, you might get sent to detention or whatever.

• 22:19Speaker 05

  Yeah.

• 22:20Michael Liroff?

  But if you and your buddies have a big argument about that at lunch, that's a totally separate category, right?

• 22:27Peter Shamshiri?

  Right.

• 22:27Michael Liroff?

  And his point is like, yeah, disruptive speech in the journalism class, journalism two or one or two or two or whatever it was, where they do this newspaper, like if you were disrupting the lecture or whatever, that would be

• 22:43Michael Liroff?

  Well-regulated, but students of finishing their assignment and handing it in is no grounds for, for any of this, right? Like, what are we talking about here?

• 22:53Peter Shamshiri?

  Right. They're bastardizing the Tinker standard a little bit when they talk about this stuff. And schools to this day do this where they're like, well, this is disruptive, right?

• 23:02Michael Liroff?

  Yeah.

• 23:02Peter Shamshiri?

  But

• 23:03Speaker 05

  Yes.

• 23:03Peter Shamshiri?

  What the court meant when they said disruptive was like interrupting the flow of the educational experience, like you're saying, Michael, right? Like trying to teach calculus and a kid starts screaming, right?

• 23:13Michael Liroff?

  Right.

• 23:14Peter Shamshiri?

  Disrupting, disrupting, trying to teach a kid about theater and one of them keeps rambling about politics, disruptive. It's preventing the education from actually happening. But if there's a theater class where the topic is political, the topic of the show is political.

• 23:33Michael Liroff?

  Yeah.

• 23:33Peter Shamshiri?

  It's not disruptive just because someone gets the vapors or whatever.

• 23:36Michael Liroff?

  Right.

• 23:37Peter Shamshiri?

  Like, it's not, it's, that's not what they mean.

• 23:40Michael Liroff?

  Right. So the majority gives sort of like three rationales. One of them is this sort of, you know, the educational prerogative. Another is the schools need to disassociate itself from student expression.

• 23:53Peter Shamshiri?

  Right.

• 23:53Michael Liroff?

  And, and Brennan is like, yeah, sure. It's in the school paper. So it has some indicia of school.

• 23:59Speaker 05

  Like endorsement almost. Yeah.

• 24:02Michael Liroff?

  Endorsement. But again, as one of you two, I don't know if it's Peter or Ian, and mentioned, they published this thing at the beginning of the issue saying, this is protected speech. It's not the school's speech. It's the student's speech, blah, blah, blah, blah.

• 24:19Peter Shamshiri?

  I also think it doesn't actually imply any endorsement. I think it implies that they endorse these kids expressing themselves in this manner, right?

• 24:29Speaker 05

  Yes.

• 24:29Peter Shamshiri?

  But it does not imply that they endorse the actual opinion.

• 24:33Michael Liroff?

  And he makes the point that like, even if you accept that rationale, that it needs to disassociate itself, in the speech context, you always ask like, well, how narrowly tailored is the regulation to achieving its means? And this isn't narrowly tailored at all. Just striking the articles and five other articles that are totally unrelated.

• 24:56Speaker 05

  Yes.

• 24:57Michael Liroff?

  Like, what are we fucking talking about here? It is like, for one thing, you could have just asked for edits. He doesn't mention this, but the principal also could have asked for a response piece to be written and published with it.

• 25:10Peter Shamshiri?

  By the parents.

• 25:11Speaker 05

  Dad op-ed. Dad op-ed in the school newspaper.

• 25:15Peter Shamshiri?

  Yeah. Why, why is he saying that the dad's response had to be published immediately?

• 25:20Michael Liroff?

  Right.

• 25:21Speaker 05

  Yeah, like, maybe the next issue.

• 25:23Michael Liroff?

  Yeah.

• 25:24Peter Shamshiri?

  Imagine how fucking funny that dad's response would have been. I think he's honestly right, that like the dad should have, they should have given the data for him to respond.

• 25:33Speaker 05

  Yeah, just because it would be funny, 100%. Also, like, with the teen pregnancy story, right? If the principal is concerned that those girls could be identified despite being identified in the story with pseudonyms, okay, check in with those girls.

• 25:45Michael Liroff?

  Right.

• 25:46Speaker 05

  Right? Like, just make sure.

• 25:47Peter Shamshiri?

  That's like the only legitimate concern he had, right?

• 25:50Michael Liroff?

  Right.

• 25:50Peter Shamshiri?

  And there's other things besides spiking 10 stories simultaneously.

• 25:54Michael Liroff?

  Right.

• 25:55Peter Shamshiri?

  That could address it. There are no steps taken towards like addressing his concerns in any actual meaningful sense that it just sort of reeks of bad faith.

• 26:04Michael Liroff?

  Absolutely. And then the other thing is, the majority says is, well, like, you know, the pedagogical interest in shielding the high school audience from objectional viewpoints and sensitive topics. And I appreciate that Brennan just discards this. She goes, that's illegitimate, literally.

• 26:20Peter Shamshiri?

  Right.

• 26:22Michael Liroff?

  The second is illegitimate. That's how he describes that concern. The second concern is illegitimate. Like, what are we fucking talking about? The school doesn't have any interest in shielding high school students from scary viewpoints. Like, sometimes teenagers get pregnant and sometimes parents get divorced.

• 26:40Speaker 05

  When 40 girls at the high school are pregnant at any given time, as Kathy Colmeyer says later.

• 26:46Michael Liroff?

  Yeah, unreal.

• 26:47Speaker 05

  Yeah.

• 26:48Michael Liroff?

  It's a really good dissent. It ends very strong about, you know, he has a sharp little line. Young men and women have faced what East expected a civic lesson, but not the one the court teaches them today.

• 27:00Speaker 05

  Oh.

• 27:01Michael Liroff?

  I do want to note, there is a paragraph in this that like just made my stomach churn. Not because of anything Brennan said, but he just. You know, he says, look, we have traditionally reserved the daily operation of school system to the states and their local school boards. We have not, however, hesitated to intervene where their decisions run afoul of the Constitution and then has like a citation of several cases. And I'll read them to you and then I'll tell you why this makes me nervous. The first one says, striking state statute that forbade teaching of evolution in public school unless accompanied by instruction of theory of creation science. School board may not remove books from library

• 27:43Michael Liroff?

  shelves merely because it disapproves of ideas they express. Striking state law prohibition against teaching Darwinian theory of evolution. Public school may not compel student to salute the flag. And state law prohibits the teaching of foreign languages in public or private schools. It's unconstitutional. And as I'm reading that, there is a case, we'll talk about this more in detail, but there is a case that the Supreme Court right now about removing books from library shelves merely because they disapprove of the ideas expressed in those books. And I just look at all these precedents and I think these are all on the chopping block. Like every single one

• 28:25Michael Liroff?

  of these. Saluting the flag? Absolutely. Creationism? Absolutely. Foreign language? Fuck. Are you kidding me? Trump just announced that they're making an English language requirement to be a trucker. Like, seriously?

• 28:43Peter Shamshiri?

  Finally, finally. Every time I'm at a truck stop, talking with truckers and they can't speak English, I'm like, what the fuck? What happened to this country?

• 28:57Michael Liroff?

  I'm very concerned, very concerned about the future.

• 29:01Speaker 05

  Yeah, you know, back on the case, I'm just like thinking about this fucking Principal Reynolds. What frustrates me a lot out of the majority is that, first of all, this makes it to the Supreme Court dumb. Second of all, that the majority fashions this new rule to allow the suppression of students' free speech. And it's out of what to me like reads as like very Principal Reynolds being bull in a china shop. He just says like he's kind of rushed. He's not fucking paying attention. He doesn't like a couple of the stories. He strikes seven stories total, just takes out the pages. There's a carelessness here.

• 29:45Speaker 05

  Like, I don't even think Principal Reynolds is necessarily being like, oh, you know, I really need to tamp down on student expression and that kind of thing. I think he's just like, the, the stories don't sit right with me. I don't like them. I don't like the topics personally, and I'm just gonna strike them. Again, like this carelessness, a kind of like thoughtlessness to the whole thing. It goes all the way to the Supreme Court for the Supreme Court to polish all of it.

• 30:14Michael Liroff?

  Right.

• 30:14Speaker 05

  To like give it legal justification, to legitimize what he did when the whole fucking purpose of the First Amendment is that the government can't brush up all of this broad activity, can't just like sweep away all of these categories of speech because they don't like it, or because they're being careless, or because they want to suppress and repress.

• 30:42Michael Liroff?

  Yeah, no, I, I think that's really sharp and on point. So there's some language in the opinion that this is making me think of. Cause I can imagine if you were reading this in like 2007 and you'd think like, all right, Brennan, this is pretty good, but it's a little overheated. He says he openly worries about, you know, school officials could censor each of the students or student organizations in the foregoing hypotheticals, converting our public schools into enclaves of totalitarianism that strangle the free mind at its source. And I can imagine like sort of rolling my eyes at that at a different point in time in American history. But now, like, looking at the time we're in now.

• 31:23Speaker 05

  Yeah.

• 31:24Michael Liroff?

  Like, and realizing that like the vanguard of

• 31:29Michael Liroff?

  Authoritarianism, the ground troops authoritarianism are these fucking mindless dumbass chuds. Just like, is there any better example of that? Any better like microcosm of that? Then some principle just being like, deep pregnancy, I'm ripping this entire page out.

• 31:48Peter Shamshiri?

  Right.

• 31:49Michael Liroff?

  Divorce with no, I'm ripping this entire page out, right? It's just like some dumb chud just being like, yeah.

• 31:58Speaker 05

  Yeah.

• 31:59Michael Liroff?

  Thoughtless, like totally thoughtless and careless and inconsiderate. And then the machinery of the state putting a legalistic gloss on it.

• 32:10Speaker 05

  Exactly, exactly. And the vanguard legally of authoritarianism being this kind of thought policing.

• 32:16Michael Liroff?

  Right.

• 32:16Speaker 05

  This kind of policing of expression.

• 32:18Michael Liroff?

  Yeah.

• 32:19Peter Shamshiri?

  And a thought policing that starts at this level.

• 32:21Speaker 05

  Exactly, exactly. And it starts at this level and it often it starts in this package of protecting kids and protecting the family.

• 32:29Michael Liroff?

  Right.

• 32:30Speaker 05

  Which brings us to the case that Michael just mentioned that is at the court right now. Oral arguments just happened a couple of weeks ago, I think, as of the time of this recording. This is Mahmoud v. Taylor. Now, a group of parents in Montgomery County, Maryland, a really big school district in Maryland, are suing the Board of Education there over their kids being required to participate in instruction and in curriculum that includes LGBTQ themes. In this case, those parents arguing that violates their religious beliefs, violates the First Amendment free exercise clause, which protects the exercise of their faiths. This is a really religiously diverse community in Maryland.

• 33:12Speaker 05

  And the parents that are suing, it's actually a coalition of parents like representing multiple faiths. Now, like the specific issue here is the county approved books that feature LGBTQ characters and those books being included in the language arts curriculum. So like just a couple of examples, I know probably a lot of listeners have heard about this. One book in that English language arts curriculum, it's for young kids. It's called Pride Puppy, tells the story of a little puppy that gets lost during a pride parade.

• 33:43Peter Shamshiri?

  I don't think so. Pervert shit.

• 33:46Peter Shamshiri?

  Not in my school.

• 33:48Speaker 05

  Another book tells the story of a girl who attends her uncle's gay wedding, which is like, what the fuck? Since when is guncle illegal? Like, come on, please. Yeah. And so this case at the court right now, if oral argument was any indication of how the justices are going to decide, let me tell you, it's bad. And yeah, just an example. I mean, it's obviously related to Hazelwood, to the case we're talking about here, being, being a First Amendment issue, talking about like, what ideas students are engaging with at school. But also you see here that tamping down on the First Amendment, tamping down on these ideas on expression,

• 34:28Speaker 05

  on engagement with stories that might be disagreeable to some, really starts and has this like family protection, parents' rights, parent control of their kids' package.

• 34:43Michael Liroff?

  Yeah, we must protect the children. Like any good moral panic, right?

• 34:48Speaker 05

  Yes, yes.

• 34:49Peter Shamshiri?

  It starts off as a, you know, parents' rights framework where it's like, I should be able to protect my child from content that I don't like. And it shouldn't even really matter what that content is. It's my child, right? But there's no real way to do that without having the trickle over effect to other children, right? Because it's a school curriculum after all. People learn together, right? So public schools start sort of reeling it in a little bit. Well, we don't want something that might be seen to endorse LGBT rights because we're just going to get a fucking lawsuit and the Supreme Court's going to side with them. So they start to reel that in a little bit and it spreads, right?

• 35:32Peter Shamshiri?

  All of a sudden you have kids that aren't learning about LGBT rights and adults aren't allowed to talk about it as freely. Because what if children hear, right? And what if a religious person gets offended, right? When you talk about it in the workplace? What if a religious person gets offended when you talk about it at a city council meeting?

• 35:53Michael Liroff?

  Let's be clear, the only religious people that they care about here being offended are conservative Christians.

• 35:59Peter Shamshiri?

  Right. And this is just sort of how it snowballs and spirals. And it it starts in schools. It's a very important foothold that conservatives have, their ability to tap into moral panics vis a vis young people. I mean, look at what they did with trans rights, right? After completely striking out on bathroom laws a few years ago by turning it into a panic about young kids transitioning, right? Something that there's just no real evidence is happening in any significant numbers.

• 36:28Speaker 05

  Yeah, I want to mention one thing, too, about Mahmoud. And I'm sure that, obviously, this case is going to come down. It's going to be ugly. We're going to do an episode about it, right? But I want to make one note, which reminds me a little bit of the terrible affirmative action case, Students for Fair Admissions, in which the plaintiffs and the arguments put forth were about unfairness of affirmative action to Asian students. And here, the named plaintiff, Mahmoud, this is a Muslim parent, you know, front and center, saying this violates my free exercise rights, just noting how conservatives and

• 37:09Speaker 05

  the conservative legal movement will tokenize especially racial and ethnic minorities for their causes. And we're getting diversity weaponized against progressive causes, right?

• 37:20Peter Shamshiri?

  Right. One of the worst things about racism against Middle Easterners and Islamophobia is that I can't make fun of religious Muslims as much as I would like to. I would like to make fun of them just as much as I make fun of religious Christians. But no, I can't, because I would be participating in structural racism and Islamophobia. That's what it's taking away from me. You know what I mean? It pisses me off.

• 37:44Speaker 05

  Yeah.

• 37:45Peter Shamshiri?

  And they're in my family. You know what I mean? Like-

• 37:47Speaker 05

  George W. Bush killed a million Iraqis, and now Peter can't make the joke about Ramadan.

• 37:54Peter Shamshiri?

  And now I can't make fun of my uncle.

• 37:58Peter Shamshiri?

  My own uncle, folks. Can you believe I can't make fun of him?

• 38:03Speaker 05

  Allah'y konu bana.

• 38:05Peter Shamshiri?

  So I want to take a look at the legal framework that the conservatives ended up creating here. Just because they didn't have the balls to say, "We don't believe that students deserve free speech." You can see that it's incoherent, right? You have cases like Bethel, the lewd speech case. In that case, the court said, "Well, this was just like a vulgar speech at a school assembly. It wasn't political speech." Which means it's more acceptable to censor it under the First Amendment, right? Which makes sense, because in that case, you're not censoring a specific viewpoint. So it's more acceptable, generally speaking, to censor that sort of speech. But in this case, they are censoring a viewpoint, right?

• 38:50Peter Shamshiri?

  But instead of saying, "Oh, well, you can't do that. That's actually worse." The court turns around and says, "Well, the school should be able to choose what viewpoints it's affiliated with." Right? So whether you're espousing a viewpoint or not, the court will hold it against you in their analysis. They will find a way to say, "Well, that actually weighs against you." Yeah. No matter what. I think it's just a good example of how transparently disingenuous the court's being here. Yes, yeah. No matter the type of speech, they sort of weave in a new rule. And then they weight everything accordingly so that the speech doesn't matter, so that the student can be disciplined, so that the school has the power.

• 39:32Peter Shamshiri?

  And I think it's dangerous, you know, I mean, we've been talking about the consequences in the modern setting. But like, in that Bethel case, the lewd speech case, the court said that schools are allowed to censor "conduct that is otherwise inconsistent with the shared values of a civilized, social order." And it's like, well, who decides that? Yeah. Shared values? If the student doesn't share those values, that's their First Amendment right. That's the whole fucking point. That's the point of the free expression. It's very reminiscent of how conservatives talk about education now. Not a view that education is about like embracing different ideas, but it's about reinforcing a very specific social order, right?

• 40:14Peter Shamshiri?

  We must sort of be teaching slavery a certain way, American history a certain way. New ideas are rejected and they must be replaced with, you know, the sort of glossy patriotism that we like.

• 40:27Michael Liroff?

  I think it also reflects a very reactionary view about children. Yes. And that they are not individual human beings with their own personality and ideas, but they are essentially the property of their parents, right? And which I think is why you see so many like divorced dads and people like Elon Musk going fucking crazy when their kids have different values from them, different views, right? Or a kid transitions or whatever, and they just go nuts.

• 41:01Peter Shamshiri?

  Yeah. Even though statistically, when you have 100 kids, you'd think a couple of them are gonna fall a little farther from the tree than others, you know?

• 41:10Michael Liroff?

  Yeah, yeah, yeah.

• 41:12Peter Shamshiri?

  This is sort of like something that is basically literal infantilization, right? Where like, these kids are in high school. Like, the things that they are exposed to day to day are very disconcerting to parents, right? This was true in the eighties, it's maybe even more true now. But this is an age when you start to lose control of the information that your children absorb. And it freaks parents out, it freaks schools out. And rather than accept this is literally just part of growing up, that we all remember, that like we all went through and we all experienced in like a very similar way.

• 41:53Peter Shamshiri?

  People like insist on exerting this completely unreasonable level of control.

• 41:59Michael Liroff?

  Right.

• 42:00Peter Shamshiri?

  Over people who are like about to be adults like this.

• 42:02Michael Liroff?

  Right.

• 42:03Peter Shamshiri?

  These kids are gonna be adults really soon. And this was.

• 42:05Speaker 05

  And it's their experiences. It's their experiences they're talking about. It's not even like the imposition of some sort of like outside, like ideology or something like that. These are stories about what the students themselves are going through in their own words.

• 42:19Peter Shamshiri?

  Right. And I think it just sort of, for me, like evokes the sort of what is now very obvious as like a fascist ideology of like total control over the individual, right? Not simply their insistence that political outcomes be one thing, but that your social and cultural experience reflect one thing.

• 42:41Michael Liroff?

  Right.

• 42:42Peter Shamshiri?

  Everything merges, right? The social and the political under fascism and becomes the singular thing that is controlled from the top down, spoon fed to you. And that starts with education and ends with education. I think it's so easy at the time to look at this and think, well, students' free speech rights are the exception. Right? Because they're kids and like schools should have a little more control. So it's basically okay if students don't really have speech rights. Like, look how quickly that gets out of hand. Look how quickly that turns into like a program of social and political control.

• 43:18Michael Liroff?

  Right. And just again, to go back to that, I think, building on Peter's point, going back to that paragraph I mentioned a little while back, like, all these things have to be, you have to consider that these are on the table in the next 10 years if there aren't serious changes happening in American politics, right? At least one state eliminating evolution from its curricula, saluting the flag, prayer in school, English language only and forbidding foreign languages, teaching creationism. You should just assume all those things are on deck.

• 43:56Peter Shamshiri?

  There's still a living generation of conservatives who will be like, this all started when they took prayer out of schools.

• 44:01Michael Liroff?

  Yes.

• 44:01Peter Shamshiri?

  It's God out of the schools.

• 44:02Michael Liroff?

  Yes.

• 44:03Speaker 05

  Yes.

• 44:04Peter Shamshiri?

  Those people are alive, but they're barely hanging on, but they're here.

• 44:07Michael Liroff?

  Yeah.

• 44:08Speaker 05

  Yeah, you know, fast forwarding to issues that are happening today, we are seeing First Amendment issues controversies play out in the school context right now, particularly, obviously, with student protests at universities, protests that are pro Palestine against the genocide. And there's something that's sticking out in my mind that's related to this case. You see it in this case with the carelessness, the thoughtlessness about the importance of student First Amendment rights. And you see that playing out today as well. There's such a nonchalant with the way political actors and judges treat the First Amendment rights

• 44:51Speaker 05

  of students, particularly in the student context. Whereas like if you look at, you know, money and politics, the right of rich people to speak through their money and to influence our democracy with their money, to flood it with money as if that's political speech. Well, the Supreme Court talks about that as if it's like a cherished tiny baby angel, a cherub that must be protected at all costs. But when students are speaking truth to power, are exercising exactly the core of what is protected by the First Amendment,

• 45:33Speaker 05

  which is the right to speak to your government and against political actors and the right to oppose what the government is doing. That's just, ah, you know, that's disruptive, that's vulgar, that's not acceptable. And, you know, the First Amendment just washes away in those contexts, apparently.

• 45:59Peter Shamshiri?

  In general, this stuff really hits close to home for me because first of all, I was just a misbehaving young boy. To me, school administrators are not just cops, but they're the original cops. It's more, for me, it's like cops are school administrators. It's the other way.

• 46:16Peter Shamshiri?

  All of my sympathies are with young, misbehaving boys everywhere. And so whenever I read one of these stories, any type of kid who's in some trouble with school, I'm like, what are they fucking saying that you did?

• 46:26Michael Liroff?

  Yeah.

• 46:27Peter Shamshiri?

  If you didn't hurt someone, I'm on your side. That's what I say.

• 46:31Speaker 05

  Yeah. You know, the flip side, right, is like, I can name teachers, multiple educators that I had from K through 12, who are the reason that I built the foundation, allowed me to build the foundation in myself to express myself, even though I represented a racial and ethnic minority, a religious minority in school. It was educators who set me up to be able to scream on a podcast once a week, who said, "The expression of your ideas is important, and you should feel free to do so." And that was in a Texas public school.

• 47:10Speaker 05

  So suck on that, mamacitas and papacitos. And I just want to highlight also, like, the benefits, the vision, like, what is possible.

• 47:21Peter Shamshiri?

  And what's lost by chilling speech in these settings?

• 47:24Speaker 05

  Yes, yes, exactly. And how children are set up for success and critical engagement with the world around them, and happy, fulfilling lives because they were exposed to ideas and were encouraged to engage and express their ideas.

• 47:42Peter Shamshiri?

  Yeah, so if you're a teacher who encourages their students' expression, you could be responsible for creating a Rhiannon.

• 47:51Speaker 05

  Tread lightly.

• 47:54Peter Shamshiri?

  And also, no matter what you do, there will be Peters.

• 47:59Peter Shamshiri?

  Yeah, what the government fears more than anything else is a teacher teaching a student to think critically and independently.

• 48:09Speaker 05

  Yep.

• 48:10Peter Shamshiri?

  And then that student grows up to be a podcaster, a left-wing podcaster.

• 48:18Speaker 05

  They fucked up because she's a Marxist. Oops.

• 48:24Michael Liroff?

  No, I was gonna say, I mean, I got caught drawing dirty pictures in fifth grade. And the only thing I remember from fifth grade is my homeroom teacher holding up this paper in like an angry panic, saying to me, I don't care what religion you are. This is a sin.

• 48:42Speaker 05

  Oh, my God.

• 48:45Peter Shamshiri?

  That's that freedom of religion, right?

• 48:47Speaker 05

  Yeah.

• 48:48Peter Shamshiri?

  He's like, there's, there's no way out of this, kid. No matter what god you worship.

• 48:54Peter Shamshiri?

  He's pissed off right now.

• 48:56Michael Liroff?

  Just on her, I wasn't part of any religion.

• 49:05Peter Shamshiri?

  All right, folks, next week, we're taking off because Rhiannon's going to Paris.

• 49:12Michael Liroff?

  Oh, ho, ho.

• 49:13Peter Shamshiri?

  Nice. Keep working on that accent. They're gonna love it over there.

• 49:19Speaker 05

  I majored in French.

• 49:20Peter Shamshiri?

  Oh, let's hear it. Let's hear some real French.

• 49:22Speaker 05

  I already said quel scandale.

• 49:24Peter Shamshiri?

  I thought that was Arabic.

• 49:25Speaker 05

  Quel scandale is, what a scandal, in français.

• 49:30Peter Shamshiri?

  You're saying it with an Arabic inflection.

• 49:33Speaker 05

  No, I'm not. Mr. Can't roll a fucking R. Certainly can't say the French R.

• 49:42Michael Liroff?

  That was good. That French, French, yeah.

• 49:45Speaker 05

  And that's because of the Arabic foundation, because there's a entire letter in Arabic.

• 49:51Peter Shamshiri?

  Right, right. All right, folks, we'll be back in a couple of weeks with a premium Patreon episode about what we don't know yet, because I think we're gonna do it about current events.

• 50:03Speaker 05

  And that's a big question mark.

• 50:05Michael Liroff?

  Yeah, that's right.

• 50:05Peter Shamshiri?

  Stay on our toes. Stay dynamic.

• 50:08Speaker 05

  Yeah.

• 50:08Peter Shamshiri?

  Yeah. You can't plan that kind of stuff two weeks in advance. You have to stay nimble. Jump in.

• 50:14Speaker 05

  Yep.

• 50:14Peter Shamshiri?

  That's what we're gonna do.

• 50:18Peter Shamshiri?

  Follow us on social media, at 54pod. Subscribe to our Patreon for access to premium episodes, ad-free episodes, special events, our Slack, all sorts of shit. We'll see you in a couple of weeks.

• 50:30Michael Liroff?

  Bye, everybody.

• 50:31Speaker 05

  Bye. Au revoir.

• 50:33Peter Shamshiri?

  What does that mean?

• 50:46Michael Liroff?

  Five to Four is presented by Prolog Projects. This episode was produced by Dustin DeSoto. Leon Neefac provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community, and more, join at patreon.com/54pod.