HOSTS

PETER SHAMSHIRI

RHIANNON HAMAM

MICHAEL LIROFF

[ARCHIVE CLIP: We'll hear arguments first this afternoon in number 86-836 Hazelwood School District versus Cathy Kuhlmeier.]

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, 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. 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.

[NEWS CLIP: 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.]

Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, 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.

Michael Liroff: Hey, everybody.

Peter: And Rhiannon.

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

Michael: A network of group chats.

Peter: Yeah. There's a story in Semafor 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.

Rhiannon: Radicalized good or radicalized bad?

Peter: Oh, radicalized bad. Well, you know, billionaires.

Rhiannon: They are billionaires. Yeah, yeah, yeah.

Peter: I'm talking about, like, the David Sacks of the world, Marc Van Driesen. 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.

Michael: Yeah.

Peter: 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 we have Trump Derangement Syndrome. We just disagree with you." And then it's like Tucker Carlson left the chat.

Michael: [laughs]

Peter: [laughs] It's so good.

Michael: 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 'republic of letters,' a reference to the long distance intellectual correspondence of the 17th century."

Peter: Yeah, for sure. This is kind of like a republic of letters, guys.

Michael: Others often invoked European salon culture.

Peter: "Dear Benjamin Franklin, check out this video."

Michael: [laughs] You know these chats are just like, "Oh, race science is real."

Rhiannon: Right.

Michael: "And Blacks are genetically inferior, for sure."

Peter: Yeah.

Michael: For knowledge-y group chats.

Peter: There are 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?

Michael: Yeah.

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

Michael: [laughs] Why is it like that?

Peter: Why is it shaped like that? Why does it look like he was born and they just immediately took a fucking Dyson to it?

Michael: [laughs]

Rhiannon: He came through the canal real weird.

Peter: Absolutely.

Rhiannon: Came through that canal straight bonkers.

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

Rhiannon: He was banging against the sides.

Peter: It was archaic back then. The suction devices they were using to pull babies out of birth canals back then.

Rhiannon: Uh-huh. That's a forcep injury. I can clock that.

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

Peter: 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.

Michael: 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?

Rhiannon: Yeah. Like, where does it go? Where does the mass of the brain go?

Michael: [laughs] It's so stupid.

Rhiannon: He's a fucking idiot.

Peter: It inhibits the growth of the brain, guys.

Michael: [laughs]

Peter: No, 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 cool to have a giant head! It actually makes you smarter to have an enormous head!" You know, that reminds me of that sort.

Michael: Yes. Yes.

Peter: All right. We've digressed for too long. Today's case, Hazelwood School District v. Kohlmeier. 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 ...

Rhiannon: ¡Escandale!

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

Rhiannon: Yeah, they sure did. You know, shout out. We must uplift the voice, the work of a soldier, Cathy Kuhlmeier. In 1983, Cathy Kuhlmeier was the editor in chief of The Spectrum, the official newspaper of Hazelwood East High School. Now in May of that year, Cathy edited and planned to publish a few stories in The Spectrum that were controversial if you're a Puritan idiot. But to Cathy 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, Peter, it was about divorce. Another was about child runaways. And the final kind of controversial story was about teen pregnancy. Now Cathy Kuhlmeier, still to this day, I saw an article about her presenting to a journalism class at a 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.

Rhiannon: Now that article, of course, references to birth control, references, obviously to sexual activity. But this was like a feature piece. This was an interview piece where Cathy 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, Cathy, 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. An incredible quote where the girl just, like, shits on her deadbeat dad. 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. "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.

Michael: 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 ...

Rhiannon: Get him. Drag his ass. Fucking roast him in The Spectrum.

Peter: I love the late '70s. Your deadbeat dad is just bowling. [laughs]

Rhiannon: [laughs] 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. Because 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 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.

Rhiannon: 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, 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's 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's alleged objection to these stories, he said the pregnancy story was inappropriate for 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 in the story about teen pregnancy were identified with pseudonyms, he thought that maybe enough details were in the story that the girls could be identified anyway for the divorce story ...

Michael: I love this. This is so good.

Rhiannon: 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.

Michael: Yeah.

Rhiannon: In The Spectrum in that story before it was published.

Michael: The original men's rights activist.

Rhiannon: Real men's rights guy, yeah. [laughs]

Peter: Guys can't bowl? Guys can't bowl anymore?

Rhiannon: [laughs] So these pages get pulled from the newspaper. The student journalists find out, and so editor in chief Cathy Kuhlmeier 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 had been violated. And that's how we get to the Supreme Court.

Michael: Where they won 8-0, you know?

Peter: That's right.

Michael: The thrilling victory for student speech.

Peter: 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 4 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 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.

Rhiannon: "I'll work long and hard for you."

Peter: Yeah. That sort of thing.

Rhiannon: Yeah.

Peter: 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 had political overtones. 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.

Rhiannon: Yeah.

Peter: And it, like, impacts how you feel. That's not what courts mean by disruption. 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.

Michael: Mm-hmm.

Peter: 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?

Rhiannon: Yeah.

Peter: 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 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?

Michael: Yeah.

Peter: 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?

Rhiannon: Yeah.

Peter: 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.

Rhiannon: 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.

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

Michael: 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.

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

Rhiannon: Yeah.

Peter: 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.

Michael: Yeah. And I just want to add, like, it's always good 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 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.

Peter: 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 the 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.

Rhiannon: Totally.

Michael: Right.

Peter: 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?

Rhiannon: Yeah.

Peter: 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? 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?

Rhiannon: 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.

Peter: Yeah. Yeah, for sure.

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

Michael: Right. Right.

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

Rhiannon: Yes, that's it.

Peter: 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 4 Jesus" thing where John Roberts is like, "Well, it sort of promotes drug use." So that's bad, too.

Michael: Right.

Peter: Every time students do something, the Supreme Court's like, "We actually found a new exception."

Michael: Yeah.

Rhiannon: Yeah.

Peter: For student speech.

Michael: So there is a dissent by Justice Brennan. It's a good one. He pretty meticulously, like, pulls apart 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 their ability to manage their curricula and all that, but he's like, "But look, there's a difference between what kids talk about in the cafeteria versus standing up in the middle of calculus class." Right?

Rhiannon: Yeah.

Michael: 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 Reagan is the worst in 1982 or whatever, in the middle of calculus class, yeah, you might get sent to detention or whatever.

Rhiannon: Yeah.

Michael: But if you and your buddies have a big argument about that at lunch, that's a totally separate category, right? And his point is, like, yeah, disruptive speech in the journalism class, Journalism 2 or 202 or whatever it was, where they do this newspaper, like, if you were disrupting the lecture or whatever, that would be well regulated. But students finishing their assignment and handing it in is no grounds for any of this, right? Like, what are we talking about here?

Peter: 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?

Rhiannon: Yes.

Peter: But what the court meant when they said "disruptive" was, like, interrupting the flow of the educational experience like you're saying, Michael. Right? Trying to teach calculus and a kid starts screaming, right?

Michael: Right.

Peter: 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, it's not disruptive just because someone gets the vapors or whatever.

Rhiannon: Right.

Peter: Like, that's not what they mean.

Michael: Right. So the majority gives sort of like three rationales. One of them is this sort of the educational prerogative. Another is the school's need to disassociate itself from student expression.

Peter: Right.

Michael: And Brennan is like, "Yeah sure, it's in the school paper, so it has some indicia of school ...

Rhiannon: Like, endorsement, almost. Yeah.

Michael: Endorsement. But again, as one of you two, I don't know if it was Peter or Rhiannon 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 students' speech." Blah, blah, blah, blah.

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

Michael: Right.

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

Michael: 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?

Rhiannon: Yes!

Michael: Like, what are we fucking talking about here? And he's 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.

Peter: By the parents.

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

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

Michael: Right.

Rhiannon: [laughs] Yeah. Maybe the next issue.

Michael: Yeah.

Peter: 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 dad a forum to respond.

Rhiannon: Yeah. Just because it would be funny, a hundred percent. 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.

Michael: Right.

Rhiannon: Right? Like, just make sure.

Peter: That's, like, the only legitimate concern he had, right? And there's other things besides spiking 10 stories simultaneously that could address it. There are no steps taken towards addressing his concerns in any actual meaningful sense, that it just sort of reeks of bad faith.

Michael: Absolutely. And then the other thing the majority says is well, the pedagogical interest in shielding the high school audience from objectionable viewpoints and sensitive topics. And I appreciate that Brennan just discards this. He goes, "That's illegitimate." Literally.

Peter: Right.

Michael: [laughs] "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.

Rhiannon: When 40 girls at the high school are pregnant at any given time, as Cathy Kohlmeyer says later.

Michael: Yeah, unreal. It's a really good dissent. It ends very strong about—you know, he has a sharp little line. "The young men and women of Hazelwood East expected a civic lesson, but not the one the court teaches them today."

Rhiannon: Ooh!

Michael: 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 says, "Look, we have traditionally reserved the daily operation of school systems 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 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 shelves merely because it disapproves of ideas they express. Striking state law prohibition against teaching Darwinian theory of evolution. Public school may not compel students 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 at 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 of these.

Rhiannon: Yeah.

Michael: 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.

Peter: Finally. Finally!

Michael: [laughs]

Peter: 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?"

Michael: [laughs] I'm very concerned, very concerned about the future.

Rhiannon: Yeah, you know, back on the case. I'm just, like, thinking about this fucking Principal Reynolds.

Michael: Mm-hmm.

Rhiannon: 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. 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, "These 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.

Michael: Right.

Rhiannon: 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.

Michael: Yeah. No, I think that's really sharp and on point. So there's some language in the opinion that this is making me think of, because 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, "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 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 and realizing that the vanguard of authoritarianism, the ground troops authoritarianism, are these fucking mindless, dumbass chuds. Just like, is there any better example of that, any better microcosm of that than some principal just being like, "Teen pregnancy. I'm ripping this entire page out. Divorce with no—I'm ripping this entire page out." It's just like some dumb chud just being, like, totally thoughtless and careless and inconsiderate, and then the machinery of the state putting a legalistic gloss on it.

Rhiannon: Exactly. Exactly. And the vanguard, legally, of authoritarianism being this kind of thought policing, this kind of policing of expression.

Michael: Yeah.

Peter: And a thought policing that starts at this level.

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

Peter: Right.

Rhiannon: 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 faith. This is a really religiously diverse community in Maryland. 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 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.

Peter: I don't think so. Pervert shit.

Rhiannon: [laughs]

Peter: Not in my school.

Rhiannon: 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 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, 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.

Michael: Yeah. We must protect the children. Like any good moral panic, right?

Rhiannon: Yes. Yes.

Peter: It starts off as a 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?"

Michael: Mm-hmm.

Peter: 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 gonna get a fucking lawsuit and the Supreme Court's gonna side with them." So they start to reel that in a little bit, and it spreads, right? 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 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?

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

Peter: Right. And this is just sort of how it snowballs and spirals. And it starts in schools. It's a very important foothold that conservatives have, their ability to tap into moral panics vis-à-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.

Rhiannon: Yeah. I want to mention one thing too about Mahmoud, and I'm sure that obviously this case is gonna come down, it's gonna be ugly, we're gonna 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.

Michael: Mm-hmm.

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

Michael: Right.

Peter: 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. And they're in my family. You know what I mean?

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

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

Rhiannon: [laughs]

Peter: My own uncle, folks. Can you believe I can't make fun of him? 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? 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 no matter what. I think it's just a good example of how transparently disingenuous the court's being here.

Rhiannon: Yes. Yeah.

Peter: 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. 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?

Rhiannon: Yeah.

Michael: Yeah.

Peter: 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? 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 the sort of glossy patriotism that we like.

Michael: I think it also reflects a very reactionary view about children.

Rhiannon: Yes!

Michael: In that they are not individual human beings with their own personality and ideas, but they are essentially the property of their parents, right? 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.

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

Michael: Yeah, yeah, yeah.

Peter: This is sort of like something that is basically literal infantilization, right? Where, like, these kids are in high school.

Michael: Yeah.

Peter: Like, the things that they are exposed to day to day are very disconcerting to parents, right? This was true in the '80s, 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, people, like, insist on exerting this completely unreasonable level of control over people who are, like, about to be adults. Like, this ...

Michael: Right.

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

Rhiannon: 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.

Michael: Right.

Peter: And I think that it just sort of, for me, like, evokes this 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.

Michael: Right.

Peter: Everything merges, 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, student free speech rights are the exception, right? Because they're kids, and schools should have a little more control. So it's basically okay if students don't really have speech rights." Look how quickly that gets out of hand. Look how quickly that turns into a program of social and political control.

Michael: 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.

Peter: There's still a living generation of conservatives who will be like, "This all started when they took prayer out of school. They took God out of the schools."

Rhiannon: Yes!

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

Michael: Yeah.

Rhiannon: 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 nonchalance with the way political actors and judges treat the First Amendment rights of students, particularly in the student context.

Rhiannon: 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, 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.

Peter: 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. For me, it's like, cops are school administrators. It's the other way.

Rhiannon: [laughs]

Peter: All 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?"

Michael: Yeah.

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

Michael: Yeah.

Rhiannon: 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, so suck on that, mamacitas and papacitos. And I just want to highlight also, like, the benefit, the vision, like, what is possible.

Peter: And what's lost by chilling speech in these settings.

Rhiannon: 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.

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

Rhiannon: [laughs] Tread lightly.

Michael: Yeah, that's ...

Rhiannon: [laughs]

Peter: And also, no matter what you do, there will be Peters. Yeah, what the government fears more than anything else is a teacher teaching a student to think critically and independently, and then that student grows up to be a podcaster. A left wing podcaster.

Rhiannon: [laughs] They fucked up because she's a Marxist. Oops!

Michael: 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." [laughs]

Rhiannon: Oh, my God!

Peter: That's that freedom of religion, right?

Rhiannon: Yeah.

Peter: She's like, "There's no way out of this kid, no matter what God you worship. He's pissed off right now."

Michael: Jokes on her. I wasn't part of any religion.

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

Rhiannon: Ha ha ha!

Michael: Nice.

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

Rhiannon: I majored in French.

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

Rhiannon: I already said "Quel scandale!"

Peter: I thought that was Arabic when you said it.

Rhiannon: "Quel scandale" is "What a scandal" in Francais.

Peter: You're saying it with an Arabic inflection.

Rhiannon: No, I'm not! [laughs] Mr. Can't-Roll-A-Fucking-R certainly can't say the French R. [laughs]

Michael: That was good. That's French. French. Yeah.

Rhiannon: And that's because of the Arabic foundation, because there's an entire letter in Arabic.

Peter: 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.

Rhiannon: And that's a big question mark.

Michael: Yeah, that's right.

Peter: Stay on our toes, stay dynamic.

Rhiannon: Yeah.

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

Rhiannon: Yep.

Peter: That's what we're gonna do. Follow us on social media @fivefourpod, 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 weeks.

Michael: Bye, everybody.

Rhiannon: Bye! Au revoir!

Peter: What does that mean?

Michael: [laughs] 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh 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/fivefourpod.