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Brian Lehrer: Brian Lehrer on WNYC. As we're nearing the end of the Supreme Court's term and traditionally, when the rulings and the most contentious cases get announced in late June, we cover them with our legal editor, Jami Floyd. There are a handful of cases we're following. Yesterday, the court ruled on one of them, the First Amendment rights of students off-campus. We're also looking at when police can follow a fleeing suspect into a home without a warrant and a regulation that requires agricultural employers to allow union organizers onto their property to speak with their workers. The off-campus student speech rights decision just came down. With us is Jami Floyd, WNYC senior editor for race and justice and legal editor. Hi, Jami.

Jami Floyd: Hello, Brian.

Brian Lehrer: I don't even know how you say the name. Is it Mahane, Mahanoy?

Jami Floyd: It's Mahanoy. It's actually a native American name because it's the county in Pennsylvania where the public school, important that it's public, is located. It's Mahanoy v. Brandi Levy, cheerleader Brandi Levy. They should have let her onto the varsity team, Brian, all of this could have been avoided.

Brian Lehrer: Better known as the cursing cheerleader case.

Jami Floyd: [laughs] That's right.

Brian Lehrer: What was the claim?

Jami Floyd: She tried out for the squad, she did not make the varsity squad, she made the junior varsity squad, and she was unhappy about that, Brian. Went off-campus and at a nearby fast food joint, decided to snap about it, or Snapchat, as we older folks call it, about it, and used quite a few profanities. She didn't have a big following, but of course, it went viral anyway in the school community, and it got back to the faculty leader of the cheerleading squad and she got suspended for the year. She took it, as we say, Brian, all the way to the US Supreme Court, and she won. She won.

This is an important First Amendment case because there are a couple of questions. She wasn't on campus, so can a public school regulate speech about the school when that speech is not on-campus? There were also important issues about what happens online. Justice Breyer delivered the opinion with Roberts, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett, all ruling for the cheerleader. A very interesting majority. Thomas dissented. Alito wrote a concurring opinion. The bottom line was that she won and the majority and Alito completely ignored the question about whether or not student speech rights change when it's an extracurricular activity.

They did firmly rule that she has free speech when she is not on campus grounds. That was really the fundamental question and not a big surprise. I think the big surprise would have been if she had lost. Her message was very vulgar, but she didn't make it on campus, and so she won.

Brian Lehrer: This is the first time in over 50 years that a high school student went all the way to the Supreme Court with a free speech case and won. Can you remind us about the 1969 ruling known as Tinker v. Des Moines Independent Community School District?

Jami Floyd: That is the case that they were relying upon. In this case, in 1969, Tinker v. Des Moines, that other public school, in that case, the Supreme Court allowed students to wear black armbands to protest the Vietnam War. I would say a much more serious form of free speech about a more serious issue, saying that the students had not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The important thing, Brian, is that disruptive speech, at least on school grounds, could be punished.

In other words, if the speech is going to cause some trouble, the school, of course, has a right to step in and say, "Hey, you can't start a fight. You can't wear a shirt that might have offensive language on it, racist language, or pornographic language." The school can step in at that point, but generally, if you're making a political statement or wearing your armband to protest the war, the school can step in on schoolhouse grounds. That's what this case is largely based on. The lower court had ruled for Levy, the cheerleader in this case, but they had disagreed about the rationale.

It made its way up to the US Supreme Court and Justice Breyer agreed that the cheerleader had the right to speak. She wasn't on-campus nor was she directing any violent action toward anybody on campus. She wasn't suggesting that anybody do anything disruptive. She was just expressing herself in what everyone agrees was a vulgar manner.

Brian Lehrer: It was F this, F that.

Jami Floyd: That's right. [laughs]

Brian Lehrer: Breyer's majority opinion did draw a similar line to what you just described from the 1969 case, but in contemporary context, it's if you're off-campus but online, the school still has some authority over you if you do things like bullying, right?

Jami Floyd: Right. The court had to get its head around what's going on now online, so he writes, "Serious or severe bullying or harassment targeting particular individuals, threats aimed at teachers or other students, or even the failure to follow rules concerning lessons, or the writing of papers, or the use of computers, et cetera, et cetera, things that the school can still regulate under this opinion with a student off-campus." Those are the lines that go all the way back to the 1969 Tinker decision, the limited regulations that public institutions do have over students.

Serious and severe bullying, we know now, Brian, happens online. I actually was on a panel yesterday about that very topic. A school could step in at that point, but that's not what this was. [laughs] This was just speech.

Brian Lehrer: Another case that's been on our list to watch is Lange v. California. It's also known as the Hot Pursuit case, and it has to do with when police can follow a fleeing suspect into a home without a warrant. What more specifically was that issue and how did it turn out?

Jami Floyd: I love hot pursuit. It's one of my favorite topics in law. You learn it in first-year law school. Hot pursuit is when the police are in what? Hot pursuit of evidence or a suspect. The hot pursuit generally means that the Fourth Amendment falls away, Fourth Amendment which gives you the freedom from unreasonable search and seizure. Again, we're talking about the state action. In this case, it's the police. That all falls away because they're in hot pursuit. They don't have time to go get that warrant and the court says, generally, that's okay because you were in hot pursuit.

The ruling here was unanimous, Brian, that hot pursuit, warrantless entry into the home, is not categorically allowed in a misdemeanor case. This was a misdemeanor case. Kagan said the question presented here is whether the pursuit of a fleeing misdemeanor suspect always, or more legally put, categorically, that's what we say in the law, qualifies as an exigent circumstance. An exigent circumstance is, "Oh my god, we have to go on hot pursuit because he's going to flush that cocaine down the toilet." That's the classic hot pursuit.

In a misdemeanor case, we're talking about small things. You didn't show up for your ticket that you were supposed to show up for in court. Misdemeanors are the kinds of things lawyers practice when they first get to the public defender's office, very small infractions. That's not the kind of thing the police need to be in hot pursuit about. That's why they're misdemeanors. She says a great many misdemeanor pursuits involve exigencies allowing warrantless entry, but whether a given one does so turns on the particular facts of the case.

Calling any offense a misdemeanor limits prison time to one year or more. She actually cites one of my favorite law professors, Orin Kerr, who's at Berkeley. We can't categorically say that the police can always dispense with the Fourth Amendment in every misdemeanor case because so many misdemeanors just don't require that kind of hot pursuit. They're not important enough, frankly, is what she's saying, for you to be running into somebody's home without a warrant. Remember, a man's castle. It's a man's castle.

The Fourth Amendment is most about your home, your right to privacy in your home. This is an important case. I wouldn't say it's that surprising because here we have a unanimous ruling. Even the two most conservative justices, Brian, Alito and Thomas, signed onto this one. If they're signing on, Thomas rarely signs on with the others, [laughs] it must be a pretty clear-cut case.

Brian Lehrer: I want to ask you about that larger trend before we get to the one final case for today, Cedar Point Nursery, a union case. This is supposed to be epically divided, five to four or six to three Supreme Court era, but it seems like all the cases that you and I have been talking about over the last few weeks are coming down seven to two, eight to one, nine to nothing. What's going on?

Jami Floyd: I just heard a lecture by the dean of my former law school, Erwin Chemerinsky, who's one of the great scholars of the Supreme Court. He gives a lecture every year about the term. This year he spent a good portion, Brian, talking about the shift in judicial philosophy and alliance on the court. He said last year, Justice Roberts was in the center not aligned with the right, but very much in the center as a moderate conservative justice and an institutionalist. Last year, you'll member, Brian, you and I were talking quite a bit about five, four splits.

Very often with Justice Roberts, or Chief Justice Roberts, I should say, aligning with what we call the liberals, and often surprising us or surprising some of us with alignment with Sotomayor or then Ruth Bader Ginsburg, but sometimes aligning with the conservative. You had a more balanced court. Always Thomas and Alito off to the right. You didn't know what Kavanaugh or Gorsuch would do then. You could guess a little bit, but they're fairly traditional, especially Kavanaugh turns out to be, despite all the controversy over his confirmation, a rather traditional conservative.

Then, especially in criminal law and criminal justice cases. Now you have Amy Coney Barrett. You have a solid, Dean Chemerinsky points out, very solid conservative majority now with three justices on the far right. Coney Barrett, who's only been there this term, but if you look at her writings and her voting pattern, she is aligning pretty much with Alito and Thomas, though occasionally she will line up with Justice Roberts and Gorsuch in the center of the conservative majority. Then you have the liberals. Roberts has lost his ability to persuade a liberal.

What goes on, Brian, if you read books about the Supreme Court or you spend any time behind the scenes, it's a lot of lobbying for votes. That's what happens. The opinion is assigned to you, then you as the justice who has that opinion you lobby for votes. Justice Thomas can rarely get anyone to come over to the far right with him and Justice Bader Ginsburg was often on the far left. Now it's, Sotomayor who's the far left justice. It's the justices in the center who can pull people to their point of view. That was Justice Roberts. He was in the center and he could pull people left or right.

Justice Kennedy before he retired was the center justice. It now seems that Roberts has lost that ability, not because of lack of persuasive power, but because of alignment, numbers. It's just a numbers game. There aren't as many votes for those center to left opinions. They're starting to shift to the right. It's that simple.

Brian Lehrer: Hey, instead of talking about Cedar Point Nursery, maybe we'll get it in as well, but let me throw you a curveball and ask about some breaking news that just came over.

Jami Floyd: Okay. Hit me.

Brian Lehrer: A court here in New York has suspended Rudy Giuliani's law license on the grounds of his lies about the 2020 election. It's a New York appellate court. I'm just getting this in. I guess the question for you as legal editor is, how serious does something like lying need to be to get your law license suspended?

Jami Floyd: It's great that you're throwing me a curveball, but guess what? In the beginning of my legal career, do you know what I did for the first year?

Brian Lehrer: No.

Jami Floyd: I worked on the suspension of lawyers [chuckles] from the bar in California. That's what I did. You have to, and I'm quite certain New York is the same, in order to have your law license suspended or revoked. Suspension is less serious than disbarment. Disbarment is extreme, but you have to do something pretty extreme. Now, sometimes you're just suspended because you failed to pay your dues or something like that. That's temporary and you get reinstated. That's not a big deal, but in terms of a substantive suspension like this, it is extreme.

I once had a man who was convicted of second-degree murder of his wife in a battering incident and did not get disbarred. Can you tell by my voice I was upset? Why not? Because it has to be an act of moral turpitude that goes directly to your incapacity to practice law, to be a member of the bar, to stand before the court as an honorable representative of the profession. The profession is saying, "This person no longer represents who we want to be and we are therefore suspending him." I see here, there's a 33-page decision that Giuliani's conduct threatened "the public interest and warrants interim suspension from the practice of law."

Then if he's disbarred, there will be an opinion from the court as to why. What many people don't realize, it's the courts who determine who is disbarred and there are opinions issued by the highest court in the state when someone is disbarred. It is a big deal.

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Brian Lehrer: Always ready on the spot even with breaking news that she had no idea was coming. Our legal editor and race and justice editor, Jamie Floyd. With more big Supreme Court decisions expected before the end of the month, I think we'll be talking pretty soon.

Jami Floyd: Indeed. I'll look into Rudy. Give you an update.

Brian Lehrer: Brian Lehrer on WNYC.

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