High School Social Media and Free Speech

I thought these two New York Times articles were about the same incident. They are similar but not identical.  The first one, “A Racial Slur, a Viral Video, and a Reconing,” was about a high school cheerleader who used the N-word on social media referring to a classmate when she was 15.  The second story, “A Cheerleader’s Vulgar Message Prompts a First Amendment Showdown,” was about a ninth grade girl who failed to make the cheerleading squad and expressed her dissatisfaction with the school in four letter words on Snapchat. 

Since both of these stories seem to involve pretty cheerleaders, they might the basis for an episode of “Mean Girls.”  Both illustrate the increasing coarseness of conversation on social media, and often in person, in the United States.  But beyond the question of what is polite and decent is the question of what is legal?  The N-word has been part of the English language for hundreds of years, as have four-letter words.  Whatever happened to the old adage that “Sticks and stones may break my bones, but words will never hurt me.”  Before social media, these words and actions would have evaporated into thin air.  Today they are preserved forever. 

Does the fact that are not preserved in black and white mean that they are legally different from the same sentiments expressed verbally?  If Facebook has liability protection under section 230, why don’t these cheerleaders? 

In the first case, the thought-police who run the University of Tennessee thought it was more important to recruit black athletes than white cheerleaders, and thus denied admission to the cheerleader in the first story in order to help them recruit black football and basketball players. 

The family in the first case involving the University of Tennessee probably doesn’t have the millions of dollars necessary to pursue a case to the Supreme Court, or maybe they would just like to go about their lives without fighting the though-police at every turn.  They may not want to repay their accuser, Jimmy Gilligan, with the unbelievable hatred and vindictiveness he displayed in getting the girl refused admission to the University of Tennessee. 

To me, these are not hard cases for the Supreme Court, I think they should come down on the side of free speech except in the oft-cited example of crying “Fire!” in a crowded theater.  Actions that may follow disliked words are another matter, but the words should be protected.