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What Could Happen On January 6th?; U.S. Vaccinates Fewer Than Three Million People, Well Below 20 Million Goal; Social Epidemiologist Predicts Post-Pandemic "Roaring '20s"; Tuesday's Georgia Vote Will Decide Senate Power; Trump Calls Georgia Senate Elections "Illegal And Invalid"; Should Public Schools Punish Students For Speech Outside School? Aired 9-10a ET

Aired January 02, 2021 - 09:00   ET



MICHAEL SMERCONISH, CNN ANCHOR: This time the fireworks are coming after New Year's. I'm Michael Smerconish in Philadelphia. 2021 is about to begin with a bang. The next few days will be the political equivalent of the college bowl season. Tuesday will determine control of the U.S. Senate.


And Wednesday, we'll witness a last-ditch effort by the President's congressional supporters to keep Donald Trump in power, twin tests of American Democracy amidst a COVID-weary nation hoping that vaccinations are soon widespread.

In Georgia, over three million voted early, a record for a statewide runoff. Democrats Jon Ossoff and Raphael Warnock appear to have banked an advantage, leaving David Perdue and Kelly Loeffler reliant on an Election Day effort to overtake that lead. Sound familiar? At stake is no less than control of the entire U.S. Senate and the corresponding ability of President-elect Biden to deliver on campaign promises. More than $800 million has been spent and polling suggests a cliffhanger.

Then, come Wednesday, we'll all get to watch congressional sausage being made. That was guaranteed by the decision of Missouri Senator Josh Hawley to object to congressional certification of the Electoral College results. It means that a regularly routine roll call of states could be interrupted, forcing two hours of debate in both houses whenever a member of each, raises objection to a state's certification.

Both chambers of Congress would have to disagree with a particular state's slate of electoral votes to reject them. With Democratic control of the House and Mitch McConnell's desire to spare his caucus having to choose between the President and the Electoral College, that won't happen. The election will not get thrown into the House where voting would be done by state delegation.

Instead, Vice President Mike Pence will be put in the same position as Richard Nixon after the 1960 election and Al Gore post 2000. He will preside over the certification of an election in which he lost. Democracy sometimes requires such discomfort and no doubt that's what was felt by the partisan who nevertheless, after the 2016 election, presided over congressional certification of Donald Trump's election as president. That was Joe Biden's role in 2017.


REP. PRAMILA JAYAPAL (D-WA): The objection is signed by a member of the House, but not yet by a member of the Senate.



SMERCONISH: Even after the inevitable congressional affirmation of the Electoral College confirmation of the will of 155 million American voters, a key question will remain, namely will we turn the page from 2020 and the departing president to 2021 and the new president or will we wallow in last year's grievances? That is up to you.

Joining me now is attorney and historian John Monsky who works as general counsel at investment firm Oak Hill Capital. He also creates productions on American history for the New York Historical Society and Carnegie Hall. He's the co-author of this "New York Times" op-ed, "Will Pence Do the Right Thing?" So what's this going to look like on Wednesday?

JOHN MONSKY, ATTORNEY & HISTORIAN: It's not going to look particularly good because, given that Senator Hawley is going to weigh in here, there will be able to raise objections to the count. So, you know, what happens on Wednesday is a very sacred moment normally. There's a box that carries the certificates, the electoral certificates into the joint chamber and they are counted. The vice president's involved in counting them.

Unfortunately, if this goes forward, every vote that gets counted from each state can get -- there can be an objection. Then they have to break off, spend two hours, the Senate votes separately, the House votes separately and then they get back together and then they go on to the next state. So this could be a drawn out process and not one that you're supposed to do in an election like this, a regular way election.

SMERCONISH: Theoretically, what would it take for the election outcome to be altered?

MONSKY: Well, look, it's not going to happen, but theoretically you would have both the House and the Senate object -- rule that the objections are valid under the Electoral Count Act and then those electoral certificates from the state of Georgia or Pennsylvania or Wisconsin, under the Electoral Count Act, could be thrown out.

That is -- that would be probably an unconstitutional use of the Electoral Count Act. It was never meant to apply in a situation like this in an election where, you know, it's been -- there's just no issue. There's 59 cases, they've all been rejected, the Department of Justice has weighed in, the FBI has weighed in, there's been recounts. [09:05:04]

The process is over. It's supposed to be a confirmation of our Democracy. It's supposed to be a confirmation of the peaceful transfer of power.

SMERCONISH: So, Ben Sasse, Senator Ben Sasse from the great state of Nebraska, I thought, wrote a very compelling 2000-word essay for his Facebook page. It included this which I find remarkable, "When we talk in private, I haven't heard a single congressional Republican allege that the election results were fraudulent -- not one. Instead, I hear them talk about their worries about how they will look to President Trump's most ardent supporters."

The point being that there are 21 Republicans who are up for re- election, Senate Republicans in 2022. If Senator Hawley does what he has said he will do, it puts them in a heck of a position where I guess they are fearful of the Trump constituency in a primary.

MONSKY: Look, it does, but this is a time for country over party and every -- you know, one of -- one of the things I think people should remember is that this country was founded on the peaceful transfer of power and everything about this event is supposed to be a confirmation of that. Congress isn't supposed to reject the certificates from these states.

The states have voted, their electoral officials have done what they've done and at a certain point, it's got to be country over party or country over Trump, whichever way you want to look at it and I think behind the scenes, McConnell, Sasse, Thune, Cornyn, they're all saying the same thing, Sasse out --

SMERCONISH: A final ...

MONSKY: ... in front.

SMERCONISH: A final point, important point. You wrote an op-ed, co- authored one, with Neal Katyal in "The New York Times" and here's what you said with regard to Vice President Mike Pence, "He is to be the presiding officer, meaning he is to preserve order and decorum, open the ballot envelopes, provide those results to a group of tellers, call for any objection by members of Congress, announce the results of any votes on objections and ultimately announce the result of the vote.

Nothing in either the text of the Constitution or the Electoral Count Act gives the vice president any substantive powers. His powers are ministerial." So how do you foresee his role?

MONSKY: Look, his role, if he follows the Constitution, follows the Electoral Count Act, is to be ministerial. The suggestion that Representative Gohmert made in his lawsuit that someone who counts the votes, these certificates, can then change the count is crazy. I mean, it's like saying that, you know, Pricewaterhouse is counting the votes for the Academy Awards, therefore they can determine the winner. So he's supposed to -- supposed to count the -- be involved in the count of the votes and the fair count of the votes, but at the end of that article, we wrote another point which is it's not the time to stand by and Vice President Pence should be working with McConnell and Sasse to take care of this process and get it done the way it's supposed to be done and what he does behind the scenes, there could be points of order that he has to address, he's conducting this in the joint session of Congress. It's going to be important and I hope ...

SMERCONISH: We will ...

MONSKY: ... he does the right thing.

SMERCONISH: We will see Wednesday. Mr. Monsky, thank you very much.

MONSKY: Thank you.

SMERCONISH: What are your thoughts? Tweet me @Smerconish or go to my Facebook page. I'll read some throughout the course of the program. From the world of Twitter, "What would happen to the GOP if Trump ran third party? Are Republicans aware of that possibility and reacting accordingly?

Huge mistake to not discuss seemingly crazy scenarios at this point." I assume you mean run third party in 2024. He would totally split a Republican vote and guarantee the reelection of either President Biden or Vice President Harris. That's my short answer.

Still to come, I'll talk to a high school cheerleader. Now listen to this. Her First Amendment rights case may make it to the Supreme Court. When Brany Levy (ph) was in ninth grade, she got cut from varsity cheerleading. She went on Snapchat, posted a selfie with a friend, middle fingers raised, captioned, "F school, F softball, F cheer, F everything." She was booted from the JV squad for violating the team and school rules about conduct.


But an appellate court ruled in her favor, saying the First Amendment does not allow public schools to punish students for speech outside of school grounds. This has huge implications for students in the internet era and so I want to know what you think. Go to my website at this hour and answer this question. Should public schools be able to punish students for speech outside school grounds?

Also, ahead, so far, the COVID vaccine rollout has been much slower than promised, but when the country is finally inoculated, just like the end of the 1918 flu, might we experience another Roaring '20s with America going a bit wild?

And the 2020 election really won't be decided until next week's twin Georgia senate runoffs determine the balance of power, yet President Trump is labeling the elections illegal and invalid. So, who's ahead? I'll have the latest reports from on the ground.

(COMMERCIAL BREAK) SMERCONISH: At long last, vaccinations are taking place for COVID-19, albeit not at the rate first projected. Lieutenant General Paul Ostrowski, the Director of Supply, Production and Distribution for Operation Warp Speed, said recently that 100 percent of Americans who want the vaccine will have it by June, but where the Trump administration had pledged 20 million doses of the vaccine by year's end, so far not even 3 million shots have been given and just over 12 million doses have been shipped.

Dr. Anthony Fauci, the nation's top infectious disease expert, said this week that he expects 75 to 85 percent of people will have to receive vaccinations in order to achieve herd immunity. President- elect Joe Biden said Tuesday that at the current rate, it will take years to vaccinate the country against COVID-19.

So clearly, we're not yet out of the woods, but when the cloud lifts, my next guest anticipates a second Roaring '20s, such as followed the 1918 flu pandemic.


Among other things, he thinks this will include social interactions rising to the level of sexual licentiousness. Nicholas Christakis is sociologist, physician and best-selling author. He directs the Human Nature Lab at Yale University. His new book is called "Apollo's Arrow: The Profound and Enduring Impact of Coronavirus on the Way That We Live." Dr. Christakis, Apollo was both a healer and bringer of disease. So, what can we all learn from Greek mythology?

NICHOLAS CHRISTAKIS, YALE PROFESSOR/PHYSICIAN/AUTHOR: Well, I think the most fundamental lesson from Greek mythology is that there's nothing new under the sun. "The Iliad," you know, one of these canonical literatures of our -- you know, of our civilization in fact begins with a plague. The Greeks were being killed by a plague and I think their responses were actually very similar to ours and the myths tell of similar fears, similar responses, similar relief when the plague ended.

So, these old myths, I think, highlight the fact that although this way we have of living right now seems so alien and unnatural, plagues are not new to our species, they're just new to us.

SMERCONISH: I'll get to the sex in a moment, but I want to read a paragraph from your book first and it's this. You say, "The imperative to be generous is hardwired in us, and indeed the survival of our species has depended on an exquisite balance between altruists and free riders, between the people who run into a burning building to save lives and the people who take advantage of others. Across time, humans evolved to live socially, and cooperative impulses won out.

Evolutionary speaking, however, when it comes to our response to collective threats, something even more fundamental than cooperation is going on. The very fact that we knew what to do when the pandemic struck partly reflects another extraordinary ability in our species -- that is the capacity for teaching and learning." Explain. CHRISTAKIS: Right. So natural selection has shaped not just the structure and function of our -- of our bodies and not just the structure and function of our -- of our minds, but natural selection has also shaped the structure and function of our societies and we humans live in a very particular way. For example, as you mentioned, we tend to work together. We cooperate with each other. We are kind to strangers. We are kind to people to whom we are unrelated. This is very rare. Very few other animals do this.

And in addition, we do this other thing which is we teach each other things. People listening take this for granted, that they're learning. In fact, right now you and I are talking to other people and those people are hopefully hearing something new that they haven't heard before. That very fact that we're communicating information is very rare in the animal kingdom, but it's just common to us.

And by this I don't mean just communicating because many animals communicate of course. What I mean is communicating in the specific way that we are, which is accumulating knowledge and transmitting it to people to whom we're not related. So, this fact, these qualities that we have of cooperation and teaching and learning, are ironically those things that the germ exploits to kill us.

We come together to be near each other in order to be able, for example, to hunt big game or to build societies or to protect ourselves or we come together to be able to teach each other things that are useful about where the location of food is or how to manufacture tools, for example, and the germ takes advantage of that. It spreads across these social ties and lies, and misinformation exploit our tendency to interact with each other and share information.

So these twin epidemics we have right now of the germ and of lies about the germ and misinformation exploit these fundamental tendencies, for example, to cooperate and teach and learn from each other, but equally, it is the case that it's those tools we will use to fight back the germ. In other words, it's by working together and sharing information that we will ultimately, in fact, push back this plague, as we have so many others over the last few thousand years.

SMERCONISH: When we have widespread inoculation and the cloud lifts, we're going to enter a period, you say, of intense social interaction, hence the sexual licentiousness. Speak to that.

CHRISTAKIS: Right. Well, I think what's happening right now is we are -- we are the first generation of human beings that has ever been alive when it has been possible, in real time, to invent a successful, specific therapy or treatment for the disease, namely a vaccine. This is a miracle.

It's unbelievable in fact, but as you pointed out at the opening, it's going to take time to distribute this vaccine, to manufacture hundreds of millions of doses, to distribute them, and we're hearing all kinds of stories about problems in distribution, and most importantly, to persuade people to take the vaccine at some very high level.


I don't agree with Fauci that we need to get to 70 or 80 percent for what is known as herd immunity, but we need to at least get to 50 percent and so all of that's going to take time. Meanwhile, the germ is spreading, right? Right now, for example, every couple of weeks, 1 percent more of Americans or so become newly infected with the pathogen.

So what's going to happen over the next 12 months is that in about 12 months, by the beginning of 2022, we will reach this important milestone of herd immunity, which is that enough people have acquired immunity such that the population as a whole no longer is prone to epidemics and we're going to reach that threshold either naturally because the virus is spreading or artificially because enough people get vaccinated.

And when that happens in about a year, and it is going to take at least a year for that, during which time we're going to have to continue to wear masks and have intermittent school closures and business closures and gathering bans and so on. We are by no means out of the woods of this pandemic. We're not even at the beginning of the end, I would say. We're just at the end of the beginning, but we will get there.

We'll get to this herd immunity threshold hopefully by vaccination in about a year and when that happens, we're going to have the epidemiological and the biological impact of the pathogen behind us, but it's still going to take some time to recover from the social and psychological and economic shock. Let's not forget tens of millions of Americans are out of work, millions of businesses have closed.

It'll take time to recover, but we will. It'll take another year or two, I think by the end of 2023, and then I think we're going to enter the post-pandemic period, which, if history is a guide, what's going to happen is all of us that have been cooped up, have been saving our money, have become more religious, in fact, is another thing that happens during plagues, people become more religious, more abstemious, more risk-averse.

All of those trends will unwind, and people will relentlessly seek out social opportunities in nightclubs and bars and political rallies and sporting events and musical concerts and so on. There might be, as you said, some sexual licentiousness, people with a lot of pent up desire for social and that includes, of course, sexual interactions. More liberal spending, for example. People will now -- the economy will boom and so on.

So all of these sort of experiences that are now being constrained by the germ will reverse and that will happen, as I said, once we have not only the epidemiological impact of the pathogen behind us, but also the economic impact.

SMERCONISH: Dr. Christakis, thanks for the summary. The book was terrific. I read it during the break.

CHRISTAKIS: Thank you so much for having me, Michael. SMERCONISH: Let's see what you're all saying on my Smerconish Twitter and Facebook pages. From the world of Twitter, "The Roaring '20s gave us the stock market crash and 15-year depression too." Well, I think it's more complicated, Jane, than just that, but it makes intuitive sense to me, what he describes.

After all of this pent-up demand, think of how many are just eager for not only the social interaction, but to be able to go out to a restaurant and to go to a sporting event, to go to a concert, me to go out and give a speech. Can't wait.

Up ahead, over 3 million have already voted early in the Georgia runoff elections that will determine the balance of power in the new Senate, yet President Trump, last night, tweeted that the elections are illegal and invalid. How might that impact Tuesday's vote?

And don't forget this. A high school cheerleader rejected from varsity sent out an angry Snapchat message, "F school, F cheer, F everything." The school kicked her out of cheerleading altogether, but an appellate court ruled that the school had no right to punish her for her free speech made off campus and the Supreme Court will decide next month whether to hear this case. She's here to discuss.

Now you know why I want to know what you think by going to my website at right now and answering this question. Should public schools be able to punish students for speech outside of school grounds?




SMERCONISH: The balance of power in the U.S. Senate and thus a lot of President-elect Biden's effectiveness all comes down to Tuesday's twin Georgia Senate runoffs between Republican incumbents David Perdue and Jelly Ossoff and Democratic challengers Jon Ossoff and Raphael Warnock and yet last night on Twitter, President Trump, as part of his overall attack on the 2020 results, called both elections, quote, "illegal and invalid."

That would come as a surprise to residents who, in the nine weeks since Election Day, have been blitzed with more than $800 million worth of TV and radio ads, mailings, texts, calls, door-to-door canvassing. More than 3 million of them have cast ballots early, setting a record for a turnout in a statewide runoff. What does the President's last-minute monkey wrench mean for Tuesday's results?

Joining me now to discuss, Patricia Murphy and Greg Bluestein, political reporters at "The Atlanta Journal-Constitution" who've been covering the race. Greg, if I'm a Georgia Republican, why do I want to go out and participate in "illegal and invalid" election, as the President describes it?

GREG BLUESTEIN, POLITICAL REPORTER, ATLANTA JOURNAL-CONSTITUTION: Well, that's exactly the challenge that Republicans here face because the President's tweet last night illustrates just what's been happening for the last few weeks in Georgia, which is a continuing string of his falsehoods about widespread voting irregularities and voter fraud that are sending conflicting messages to the Republican base here in Georgia.

Now, to be clear, most Republicans are still voting, but Patricia and I have talked to many who say that they're confounded by these conflicting messages and they're really concerned about whether or not their vote will count.

SMERCONISH: Patricia, it really sets the stage for some theater on Monday night when the President returns to Georgia. Will he be behaved in a political sense and talk about Perdue and Loeffler or will it become Festivus, as it was on December 5th when he was in Georgia?


PATRICIA MURPHY, POLITICAL REPORTER, ATLANTA JOURNAL-CONSTITUTION: We have no idea. Republicans have no idea what the president is going to say. I don't even know if the president knows what the president is going to say, and that has created -- you talked about a monkey wrench in Republicans' plans. It's sort of more like a KitchenAid mixing bowl and it just explodes all of their ideas and plans and messages every day.

Every time he tweets about our Republican governor, Governor Kemp. He tweeted last night, as you said, that the elections are invalid and illegal. And Greg and I are talking to these Republican voters who trust their president. They believe their president and their president is telling them that their votes just now didn't count.

I talked to people who say it was stolen. They believe that the election was bought. Some of them don't even believe that Joe Biden will be inaugurated on January 20th and that's just not the message that these Republican senators need to get people enthusiastic and positive about getting out to the polls on Tuesday.

SMERCONISH: And the polling data suggests that those beliefs are widespread. Greg, the two of you together on Thursday published this in "The Atlanta Journal-Constitution." Quote -- "It's hard to document exactly how pervasive those views are, but a SurveyUSA poll commissioned by 11Alive News in December offers a clue. It showed that just one in five Republican voters in Georgia believe President-elect Joe Biden won the election fair and square. And of the Georgians who said they're not voting in the runoffs, a disproportionate number are conservative. Of those who identify as very conservative, 55 percent say they're not voting in the runoff elections because the voting process is rigged."

BLUESTEIN: Yes, exactly. This messaging has pervaded down into the rank and file Republicans. And no matter how many times that Senator Perdue and Senator Loeffler say, vote for matter what, we are the firewall, we are going to in their words, save America. They have to get over this narrative that the president has made, his own making. You know, a kind of a monster of their own making, to try to get voters, the rank and file voters they need to overcome Democratic turnout.

Because what we're seeing right now is the early turnout seems to tilt pretty heavily in favor of Democrats. By analysts that I've talked to, it seems to be about 200,000 vote edge for Democrats and might be closer to 150,000. But either way, Democrats appear to have built an early edge in early voting and Republicans have to overcome that in Election Day turnout.

SMERCONISH: You know, as the three of us have discussed previously here on CNN, Patricia, the president's antics come Wednesday are precluding him, precluding Perdue, precluding Loeffler, from making the best argument they have, I think, which is to say we are the firewall. We are the only thing that stand in defense of total control by Democrats of the House, the White House and the U.S. Senate. But because the president persists in challenging the election, they can't make that case and he won't make that case on Monday night, Patricia.

MURPHY: That's exactly right. It's also created this dynamic that we did not see coming, and that is we all had a question without Donald Trump on the top of the ticket, which was a huge driver for Democratic voters and even some moderate Republican voters to go and vote him out of office. Without that dynamic, can they get the Democrats back out to the polls in January?

President Trump, even though he lost, has not faded into the wallpaper. He is still at the top of the ticket in Georgia. He has not gone away. And so Democrats still are facing this in their mind an opportunity on Tuesday to vote him out again and to vote against senators who might support this effort to overturn the election.

That's an equally strong driver for Republicans, some Republicans on the other side. But this idea that there's a unified Democratic cabal coming, Republicans should have been talking about AOC and the "Squad" and socialism, that should have been their message going into Tuesday, and they have had to talk so much about the election, talk so much about their own Republican governor, that it's just muddied the waters in a way that was not necessary and it has given the Democrats an opportunity that I don't think they knew that they were going to have.

SMERCONISH: And finally, Greg, it seems like we're back where we were nationally in the November 3rd election. The question being have the Democrats banked a sufficient vote to protect themselves or will there be a big turnout on Tuesday by Republicans that they can make up the margin?

BLUESTEIN: Yes, and I hinted at this earlier. More than 3 million people have already cast ballots in Georgia, an astounding early turnout for a runoff -- statewide runoff like this. Democrats feel like they have banked enough votes. The weather, though, in Georgia is looking good on Tuesday, it's looking like it's going to be 60 degrees and pretty fair weather.


So a lot of it comes down to these final runoff eve pitches from both President Trump and President-elect Biden who are both getting out there, trying to get those voters that for whatever reason stayed home so far to get out there and vote on Tuesday.

SMERCONISH: So Vice president-elect Harris tomorrow, President-elect Biden on Monday, President Trump Monday, Tuesday Georgia, Wednesday the certification process in the Congress. I mean what a start to the year. Thank you both for being here. I really appreciate your coverage.

BLUESTEIN: Thank you.

MURPHY: Thank you.

SMERCONISH: From social media, this I think comes from my Facebook page. Catherine, what do we have?

Trump is doing the same thing in this runoff that he did in the 2020 presidential election to dispute this runoff just in case the Republicans lose.

Bill, I think that -- look, I don't take this away from the president. He's the best base motivator that the Republican Party has. I mean clearly, you know, 75 million people voted for him. But you can't have it both ways. You can't tell Georgians this is a fraudulent process and then saying -- and then say, please come participate in this fraudulent process. That's why it's going to be really interesting to watch what happens on Monday night just by the way he wants it to be.

Still to come, I love this story. Huge ramifications. A ninth grader who didn't make the varsity cheerleading squad went on a foul-mouthed tirade on Snapchat, got her kicked off the JV squad. Were her First Amendment rights violated in the process? The case may go before the Supreme Court of the United States and that's what leads me to this week's survey question at "Should public schools be able to punish students for speech outside school grounds?"



SMERCONISH: It's been called a threshold First Amendment question, bedeviling the nation's nearly 100,000 public schools. Can public schools punish students for speech outside school grounds? And it's an issue made even more urgent by the pandemic where more schooling is taking place online.

Next month the Supreme Court will decide whether to hear a case called Mahanoy Area School District versus B.L. And here are the facts. The minor, known as B.L., was a ninth grader who didn't make varsity cheerleading.

From the appellate court opinion here's what happened next. B.L. was frustrated. She had not advanced in cheerleading, was unhappy with her position on a private softball team, and was anxious about upcoming exams. So one Saturday, while hanging out with a friend at a local store, she decided to vent those frustrations.

She took a photo of herself with a friend and their middle fingers raised and posted it to her Snapchat story. The snap was visible to about 250 friends, many of whom were Mahanoy students and some of whom were cheerleaders, and it was accompanied by a puerile caption, F school, F softball, F cheer, F everything. To that post B.L. then added a second, love how me and another student get told we need a year of JV before varsity, but that doesn't matter to anyone else.

Well, one of B.L.'s teammates showed the snap to her mother, who was one of the cheerleading coaches. B.L. was then removed from the JV squad for violating the team and school rules, including a requirement that student athletes conduct themselves appropriately.

The Third Circuit Court of Appeals ruled for the student, saying the First Amendment does not allow public schools to punish students for speech outside school grounds, potentially setting the stage for the Supreme Court to resolve conflicting decisions arising from speech conflict in an internet era.

That's this week's survey question at I'm asking, should public schools be able to punish students for speech outside school grounds? Well, joining me now is that student, B.L. is Brandi Levy and she's here with her father, Larry Levy. So, Brandi, I get it, you lost it, right, and this was the response. Do you think you should have been punished by the school?

BRANDI LEVY, SUED HIGH SCHOOL AFTER BEING SUSPENDED FOR A SOCIAL MEDIA POST: I feel like I shouldn't have been, only because it wasn't on school grounds and I wasn't in any school attire.

SMERCONISH: How about you, dad? I remember getting suspended from school and my father made me clean the garage all day long. What did you do at home?

LARRY LEVY, FATHER OF HIGH SCHOOL CHEERLEADER SUSPENDED FOR SOCIAL MEDIA POST: Well, you know, I wasn't proud of her expression. However, I felt that at that situation that the school overstepped their boundaries and it was my decision to punish her, at which time I did take the appropriate steps that I felt necessary for what she had done.

SMERCONISH: Brandi, there is a code of conduct, right? There are rules that apply to athletes where I won't read from them, but you're obligated to make sure you don't embarrass your team, your coach, the school district, et cetera, et cetera. Were you aware of those rules?

BRANDI LEVY: I -- pretty sure I remember them, but in the rules it did not have anything about what I can and can't say out of school and out of my uniform.

SMERCONISH: Let me bring in your lawyer, Sara Rose, from the ACLU. Sara, the ramifications of this case, should the Supreme Court accept it, are pretty big, right? I mean the court has not laid down parameters in an internet age for what speech can be policed by public schools. Explain.

SARA ROSE, ATTORNEY FOR CHEERLEADER SUSPENDED FOR SOCIAL MEDIA POST: Yes, that's true. The Supreme Court has never told us what the rules are for students out of school speech. All of the Supreme Court student speech cases have been focused on what happens inside the school or at school-sponsored activities. But the Supreme Court has been very clear in its rulings on internet speech generally that simply because speech can reach a broader audience through the internet is no reason to censor or to punish it.


So I would expect the Supreme Court to hold that school's authority to punish students for their speech is limited to speech that happens in school or has, you know, some significant effect on school activities. And here Brandi's speech did not cause any disruption to her school, to the cheerleading team or to anyone else and, you know, I think that any federal court in the country would recognize that and hold that her speech was protected.

SMERCONISH: Well, I read the Third Circuit opinion. And the Third Circuit opinion points out that there were rules that she had to acknowledge before joining the cheerleading squad. Quote, "To have respect for their school, their coaches and other cheerleaders, to avoid foul language and inappropriate gestures and refrain from sharing negative information regarding cheerleading, cheerleaders or coaches on the internet." She clearly violated those standards. I guess your argument is that that standard shouldn't apply?

ROSE: Right. Well, the government cannot require students to waive their First Amendment rights in order to participate in a government- sponsored activity, just like they can't waive, you know, your and my right to -- or they can't require us to waive our First Amendment rights to get a driver's license, for example. So, you know, this idea that she has to follow these rules that are ultimately unconstitutional, you know, that was rejected by the Third Circuit and the lower court.

SMERCONISH: Hey, Brandi, what was the reaction of the varsity cheerleaders when this whole issue arose? Were they on your side or were they on the side of the school?

BRANDI LEVY: Some of them agreed that like it wasn't right for me to get kicked off, but there were others that agreed with the school as well.

SMERCONISH: And, Sara, doesn't that speak to disruption that the school is permitted to regulate speech so as to avoid?

ROSE: So I think that depends on your definition of disruption. And I think that to say that what Brandi put on Snapchat was so disruptive that the school had the ability to punish it under the First Amendment would mean that students have First Amendment rights nowhere when they're students. You know, this was a fleeting expression of frustration expressed on a weekend, outside of school and, you know, allowing schools to punish that would have a serious detrimental effect on students' free speech rights when they're outside of school.

SMERCONISH: Right, but to look at -- but to look at it in reverse, if the Supreme Court should agree with the Third Circuit that Brandi has a First Amendment right to say F cheerleading, F everybody, where might that lead? I mean I pity the school district that's trying to rein in the behavior of its students. It would then be open season, right?

ROSE: So the Supreme Court student speech cases are premised on the idea that schools have authority to discipline students for speech that's disruptive within the school. They have never expanded that to outside of school. And I think expanding that could set a very dangerous precedent.

One thing the Third Circuit was very careful to note was that its decision did not apply to speech that was threatening or bullying or harassing. So I think that when you're talking about speech that, you know, the court -- the lower court found was not disruptive at all, when you're talking about that kind of speech, the idea that you could punish that when it takes place outside of school is a very dangerous one.

You know, we think school should be teaching students about their constitutional rights and not violating them. And, unfortunately, the school district violated Brandi's First Amendment rights in this case.

SMERCONISH: Hey, Brandi, final question. How have you applied your time? What have you done outside of school, if cheerleading was not in the cards?

BRANDI LEVY: More or less just like studying and finding out how to get a job and like college stuff.

SMERCONISH: All right. I wish you good things. Take it easy -- hey, take it easy on me on social media, OK? Thank you, guys. Happy New Year.

Let's check in on your tweets and Facebook comments. What do we have?

Smerconish, is Snapchat or Instagram really outside of school when one's audience is all of your classmates?

Dave, that's why I love this case. And the Supreme Court, it's been, as I pointed out with Sara, the attorney from the ACLU, the Supreme Court has really not -- you remember the bong hits for Jesus case? Do we have that picture, Catherine? I forgot to ask of it. Where the chief justice -- there you go, yes. In this case, this First Amendment case, the chief justice, Roberts, sided with the school administrators in disciplining the kids for this.


But they have really not laid down parameters for what kind of speech, if any, they can regulate in the internet era. And now with so much online activity and online studying, it just seems right. I think they're going to accept this case. What they'll do with it, I'm really not sure.

I mean, I get -- I get Brandi's point, she's got a First Amendment right to say what she wants to say. She's outside of the classroom. But at what stage does it become disruptive to what goes on inside the classroom, that's tough. That's a really tough area to define. Keep your eye on that case.

Still to come, more of your best and worst tweets and Facebook comments, and we'll give you the final results of the survey question at Go weigh in on this. "Should public schools be able to punish students for speech outside of school grounds?"


SMERCONISH: Time to see how you responded to the survey question at this hour. "Should public schools be able to punish students for speech outside school grounds?"

Survey says, wow, 72 percent say no, they should not, siding with Brandi. And that's like 22,000 who voted.


We all agree, right, I mean, if it's bullying and if it's hate speech, then, yes, indeed, the school should be able to regulate that conduct. I just want to make clear, like we're talking about more of a gray area where it's Brandi who doesn't make varsity cheerleading. It's like, you know, F everybody. Now what do you do about that?

My conclusion on it, by the way, just one more reason why I'm glad I came of age before the internet era. There would have been a lot of problems.

Catherine, what else came in during the course of the show?

Smerconish, in the real world you get fired if you go online and say F my company, F my boss, F my department. This girl needs to learn how to be accountable for her actions.

Yes, that's true, although should you get fired if you say, you know, F the government and you are not a public employee, you're an at-will employee? They could still fire you.

Another one if we've got time. I think we do.

The basketball player that drops the F bomb because of a bad call might get expelled from the game, but not the sport.

But now you're talking about speech that takes place on school grounds and the Supreme Court in the past has embraced this idea of disruption. Is the speech a disruptive force? And if it were a high school athletic contest where somebody drops an F bomb, a clear case where they would say that's disruptive and you can't allow it.

One more. I think I can do one more quickly. A threefer on this first of the year.

What you're speaking of is a Trump orchestrated reality episode. All for show. Yes, that is going to be what we'll witness on Wednesday. What a way to start the year, right, with the Georgia runoff elections and then what is to come on Wednesday. And I agree with you, it's all staged for prime time, but it will be unsuccessful, the president's effort.

All right. Happy New Year. See you next week.