Amicus Curiae Brief — Mahanoy Area School District, Petitioner v. B. L., a Minor, By and Through Her Father, Lawrence Levy and Her Mother, Betty Lou Levy

No. 20-255

In the Supreme Court of the United States

MAHANOY AREA SCHOOL DISTRICT, PETITIONER,

v.

B.L., A MINOR, BY AND THROUGH HER FATHER

LAWRENCE LEVY AND HER MOTHER BETTY LOU LEVY,

RESPONDENTS.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF FIRST AMENDMENT AND

EDUCATION LAW SCHOLARS AS AMICI CURIAE

SUPPORTING PETITIONER

SARAH E. CRANDALL

TROUTMAN PEPPER

HAMILTON SANDERS LLP

1001 Haxall Point,

15th Floor

Richmond, Virginia 23219

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

CHRISTOPHER VERDUGO

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe,

Suite 3900

Chicago, Illinois 60606

(312) 759-5947

misha.tseytlin@

troutman.com

Counsel for Amici Curiae First Amendment

and Education Law Scholars

QUESTION PRESENTED

1. Whether Tinker v. Des Moines Independent

Community School District, 393 U.S. 503 (1969),

which holds that public school officials may regulate

speech that would materially and substantially

disrupt the work and discipline of the school, applies

to student speech that occurs off campus.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................3

ARGUMENT ...............................................................5

I. The Third Circuit’s Single-Factor Approach

Does Not Properly Calibrate First

Amendment Values In The Internet Age ........5

II. The First Amendment Permits Schools To

Regulate

Constitutionally

Protected,

Online Speech Under The Tinker

Framework Only In A Narrow, WellDefined Category Of Circumstances ...............9

A. The Online Speech Must Not Involve

Core First Amendment Activity, Such As

Bona Fide Commentary On Matters Of

Public Concern, The School, Or School

Officials......................................................10

B. The Speech Must Also Have A Close

Nexus To The School .................................17

C. And The Speech Must Be Reasonably

Likely To Cause A Substantial

Disruption To The Student-Learning

Environment .............................................20

CONCLUSION ..........................................................25

iii

TABLE OF AUTHORITIES

Cases

Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675 (1986) ................................. 10, 16, 21

Garcetti v. Ceballos,

547 U.S. 410 (2006) ............................................. 16

Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260 (1988) ............................................. 21

J.S. v. Bethlehem Sch. Dist.,

807 A.2d 847 (Pa. 2002) ...................................... 24

Morse v. Frederick,

551 U.S. 393 (2007) ...................................... passim

Packingham v. North Carolina,

137 S. Ct. 1730, 1735 (2017) ....................... 5, 7, 22

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) ...................................... passim

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ............................................. 10

Other Authorities

Benjamin A. Holden, Tinker Meets the

Cyberbully: A Federal Circuit Conflict RoundUp and Proposed New Standard for OffCampus Speech, 28 Fordham Intell. Prop.

Media & Ent. L.J. 233 (2018) ...................... passim

iv

Derek W. Black, Education Law: Equality,

Fairness, and Reform (3d ed. 2021) ..................... 2

Emily Gold Waldman, Badmouthing Authority:

Hostile Speech About School Officials and the

Limits of School Restrictions, 19 Wm. & Mary

Bill of Rts. J. 591 (2011) .............................. passim

Pew Research Center, Teens, Social Media &

Technology 2018 (May 31, 2018) .................... 6, 22

Pew Research Center, Teens’ Social Media Habits

and Experiences (Nov. 28, 2018) .................... 6, 22

Philip Lee, Expanding the Schoolhouse Gate:

Public Schools (K-12) and the Regulation of

Cyberbullying, 2016 Utah L. Rev. 831........ passim

Shannon L. Doering, Tinkering with School

Discipline in the Name of the First

Amendment: Expelling a Teacher’s Ability to

Proactively Quell Disruptions Caused by

Cyberbullies at the Schoolhouse, 87 Neb. L.

Rev. 630 (2009) ............................................ passim

Watt Lesley Black, Jr. & Elizabeth A. Shaver,

The First Amendment, Social Media, and the

Public Schools: Emergent Themes and

Unanswered Questions, 20 Nev. L. J. 1 (2019) ... 2

Watt Lesley Black, Jr., Omnipresent Student

Speech and the Schoolhouse Gate:

Interpreting Tinker in the Digital Age,

59 St. Louis U. L.J. 531 (2015) ............2, 18, 19, 23

INTEREST OF AMICI CURIAE1

Amici First Amendment and Education Law

Scholars are Professors Benjamin A. Holden of the

University of Illinois College of Media; Emily Gold

Waldman of the Elisabeth Haub School of Law at

Pace University; Derek W. Black of the University of

South Carolina School of Law; Watt Lesley Black, Jr.,

of the Simmons School of Education and Human

Development at Southern Methodist University;

Martha A. Field of Harvard Law School; Philip Lee of

UDC David A. Clarke School of Law; Rachel F. Moran

of the University of California, Irvine School of Law;

and Adjunct Professor Shannon L. Doering of the

Nebraska College of Law.2 Amici have particular

knowledge and expertise in the application of the Free

Speech Clause of the First Amendment to student

speech, having published scholarship analyzing

schools’ authority to regulate student online speech.

See Benjamin A. Holden, Tinker Meets the

Cyberbully: A Federal Circuit Conflict Round-Up and

Proposed New Standard for Off-Campus Speech, 28

Amici affirm that no counsel for a party

authored this brief, in whole or in part, and that no counsel or

party made a monetary contribution to fund the preparation or

submission of this brief. No person other than Amici or their

counsel made a monetary contribution to this brief’s preparation

or submission. All parties have consented to the filing of this

merits-stage amicus brief in writing. Rule 37.3(a).

1 Under Rule 37.6,

2

Amici provide these institutional names for identification

purposes only.

2

Fordham Intell. Prop. Media & Ent. L.J. 233 (2018);

Emily Gold Waldman, Badmouthing Authority:

Hostile Speech About School Officials and the Limits

of School Restrictions, 19 Wm. & Mary Bill of Rts. J.

591 (2011); Watt Lesley Black, Jr., Omnipresent

Student Speech and the Schoolhouse Gate:

Interpreting Tinker in the Digital Age, 59 St. Louis U.

L.J. 531 (2015); Watt Lesley Black, Jr. & Elizabeth A.

Shaver, The First Amendment, Social Media, and the

Public Schools: Emergent Themes and Unanswered

Questions, 20 Nev. L. J. 1 (2019); Shannon L. Doering,

Tinkering with School Discipline in the Name of the

First Amendment: Expelling a Teacher’s Ability to

Proactively Quell Disruptions Caused by Cyberbullies

at the Schoolhouse, 87 Neb. L. Rev. 630 (2009); Philip

Lee, Expanding the Schoolhouse Gate: Public Schools

(K-12) and the Regulation of Cyberbullying, 2016

Utah L. Rev. 831; Derek W. Black, Education Law:

Equality, Fairness, and Reform (3d ed. 2021).

Amici are united in their views that public schools

have some authority to regulate student online speech

under Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 (1969), and that,

therefore, the Third Circuit erred in adopting a

categorical rule that provides radically different

treatment for student speech based upon the physical

location of the student when she posts online. In place

of the Third Circuit’s wooden, one-factor approach,

Amici propose a three-element test for when Tinker

can apply to student online speech that is posted by

the student while off campus. This test promotes the

3

essential free-speech rights of students by both

clarifying the broad scope of those rights and offering

certainty and predictability for schools’ legitimate

regulation in this sphere. Accordingly, Amici agree

with Petitioner on the Question Presented—namely,

that Tinker may apply to student speech that occurs

off campus, in at least some circumstances. That said,

Amici do not take a position on whether, if the lower

courts were to apply Amici’s proposed three-element

test on remand, Petitioner could regulate

Respondent’s speech at issue here.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Students’ online speech introduces new First

Amendment challenges that this Court has not yet

confronted. While outside of school, students often go

online to engage in speech that lies at the very core of

the First Amendment: bona fide commentary about

matters of public concern, as well as legitimate

critiques of the government, including public schools,

school administrators, and teachers. But students

also use the Internet to engage in harmful speech of a

different character, including vicious harassment of

other students and their teachers, causing significant

disruption of student learning in the classroom. The

new First Amendment challenge for public schools is

how to address the hostile student cyberspeech

without infringing on students’ right to offer bona fide

commentary and critique online.

4

The Third Circuit’s decision below offers the wrong

answer to this question. In the Third Circuit’s view,

the broad Tinker framework provides schools with no

power to regulate student cyberspeech—regardless of

how disruptive or hurtful the speech may be—if the

student communicates that speech while standing off

campus. Yet, the school may regulate that very same

cyberspeech under Tinker if the student happens to

be on campus when she hits “send.” This is not a

sensible or constitutionally grounded approach. In

either scenario, the potential disruptive effect of this

cyberspeech is the same, and the First Amendment

values underlying the speech are largely equivalent.

Accordingly, the Third Circuit’s single-factor, brightline approach to determining when schools may

regulate cyberspeech under Tinker fails to calibrate

correctly the First Amendment values at stake here.

Amici propose a three-part test to determine when

a school may regulate student off-campus

cyberspeech under Tinker. First, for schools to have

the power to regulate under Tinker, the student’s offcampus cyberspeech must not comprise bona fide

commentary on matters of public concern, or bona fide

critique of the student’s school or school officials. In

other words, default First Amendment principles, not

Tinker, govern student off-campus cyberspeech

offering such bona fide commentary and critique.

Second, the student’s off-campus cyberspeech must

have a close nexus to the school grounds, which

properly cabins schools to their more limited role

when addressing off-campus speech. Third, in line

5

with Tinker’s core rationale, to be subject to school

regulation, the student’s off-campus cyberspeech

must be reasonably likely to cause substantial

disruption

to

the

school’s

student-learning

environment. Only when the student off-campus

cyberspeech satisfies all three of these elements may

the school regulate it under the Tinker standard.

Notably, if the Court were to adopt Amici’s threepart test, it should then remand to the lower courts to

apply this test to Respondent’s cyberspeech in the

first instance. Amici take no position on whether

Respondent’s speech satisfies any of the three

elements comprising their test.

ARGUMENT

I. The Third Circuit’s Single-Factor Approach Does

Not Properly Calibrate First Amendment Values

In The Internet Age

Today, the Internet is the most important forum

where “all persons . . . can speak and listen, and then,

after reflection, speak and listen once more.”

Packingham v. North Carolina, 137 S. Ct. 1730, 1735

(2017).

Almost all students use the Internet,

including email, texting, Facebook, Instagram,

Snapchat, Twitter, Tumblr, and on and on. Waldman,

supra, at 591; see Pew Research Center, Teens’ Social

6

Media Habits and Experiences (Nov. 28, 2018);3 Pew

Research Center, Teens, Social Media & Technology

2018 (May 31, 2018).4 And unlike with most

traditional on-campus or off-campus speech by

students, student cyberspeech may reach an

exceedingly broad audience of students, school

officials, and others—almost at the very instant the

speech is posted online. Holden, supra, at 287.

The Third Circuit’s one-size-fits-all approach does

not give sufficient respect and nuance to the different

First

Amendment

challenges

that

student

cyberspeech presents for schools and students alike.

See Waldman, supra, at 654; Holden, supra, at 298.

Under the Third Circuit’s approach, schools are

powerless to regulate any student online speech that

happens to be posted by the student while she is off

campus,

including

“cyberbullying”—ridiculing,

disparaging, and abusive cyberspeech targeting other

students—or abusive cyberspeech toward others,

including school teachers or other officials. See

Pet.App.31a; accord Pet.App.48a (Ambro, J.,

concurring in the judgment); Waldman, supra, at 649;

Holden, supra, at 260, 280, 290 n.326, 295.

Available at https://www.pewresearch.org/internet/2018/

11/28/teens-social-media-habits-and-experiences/ (all websites

last visited February 25, 2021).

3

Available at https://www.pewresearch.org/internet/2018/

05/31/teens-social-media-technology-2018/.

4

7

The Third Circuit placed off-campus student

cyberspeech beyond a school’s regulatory authority

after concluding that the “online nature” of this

speech “makes no constitutional difference” vis-à-vis

off-campus speech “in the physical world.”

Pet.App.34a (emphasis added; citations omitted).

Yet, with all respect, that conclusion fails to “realiz[e]”

the “historic proportions” of the Internet Age

“revolution.” Packingham, 137 S. Ct. at 1736. This

error is problematic in multiple respects.

To begin, the Third Circuit appeared to conclude

that schools may regulate student online speech if the

student posted the speech while on campus, see

Pet.App.34a, even though the disruptive effect of

student online speech does not generally depend on

the geographic location of the student, see Waldman,

supra, at 654. Where a student physically hits “send”

when posting online does not, as a usual matter,

change whether that speech will negatively affect the

student-learning environment or most other First

Amendment values. See Holden, supra, at 285–87.

Further, by mechanically analogizing off-campus

cyberspeech with traditional off-campus speech, the

Third Circuit failed to confront the new reality of the

Internet Age. Accord Packingham, 137 S. Ct. at 1736.

Online speech, such as cyberbullying, has created new

challenges for schools not presented by speech in prior

times. Holden, supra, at 242. Students’ cyberbullying

and other online harassing speech may cause

significant damage to the student-learning

8

environment precisely because of its difference from

traditional off-campus speech: this cyberspeech is

exceedingly low cost; has a broad proliferation rate,

especially among students; and may exist online for

the foreseeable future. See infra Part II.C.2.

Next, the Third Circuit’s concern for “offering upfront clarity,” such that “students [will be] able to

determine when they are subject to schools’

authority” when speaking online, does not justify its

rigid approach. Pet.App.27a–31a, 33a. Whatever the

claimed faults of the various tests considered and

rejected by the Third Circuit, Pet.App.33a, Amici’s

three-element test, as discussed in detail below,

provides sufficient predictability to students and

schools alike—especially because it fully protects

students’ online speech comprising bona fide

commentary on matters of public concern, on the

school, or its officials. See infra Part II.A. And even

where student cyberspeech strays beyond that

category to include hostile content, students only fall

within schools’ regulatory authority under Tinker

when the cyberspeech has a close nexus to the school,

infra Part II.B, and when their speech is so hostile

that it will cause a substantial disruption to student

learning, infra Part II.C.

Finally, and relatedly, the Third Circuit’s fear

that school “regulators might seek to suppress

[online,

off-campus]

speech

they

consider

inappropriate, uncouth, or provocative” does not

compel the adoption of the Third Circuit’s categorical

9

rule. Pet.App.32a. As Amici explain below, schools

cannot constitutionally regulate speech under the

relaxed Tinker standard when the cyberspeech

comprises bona fide commentary or critique, infra

Part II.A, or when it lacks a close nexus to the school,

infra Part II.B, or when it is not reasonably likely to

cause substantial disruption to the student-learning

environment, infra Part II.C.

II. The First Amendment Permits Schools To

Regulate Constitutionally Protected, Online

Speech Under The Tinker Framework Only In A

Narrow, Well-Defined Category Of Circumstances

We respectfully submit that this Court should

adopt a rule under which schools can constitutionally

regulate student online speech under Tinker’s relaxed

framework only if they can satisfy three specific, welldefined elements. First, the student’s online speech

must not consist of bona fide commentary on matters

of public concern, or about the school, its

administrators, or its teachers. Infra Part II.A.

Second, the student online speech must bear a close

nexus to the school. Infra Part II.B. Finally, the

student online speech must substantially disrupt the

school’s student-learning environment.

Infra

Part II.C.

10

A. The Online Speech Must Not Involve Core

First Amendment Activity, Such As Bona Fide

Commentary On Matters Of Public Concern,

The School, Or School Officials

1. The First Amendment protects from state

regulation “the right to free speech,” except in

“carefully restricted circumstances.” Tinker, 393 U.S.

at 513; see W. Va. State Bd. of Educ. v. Barnette, 319

U.S. 624, 633–34 (1943). The First Amendment

protects children as well as adults, although “the

constitutional rights of students in public school are

not automatically coextensive with the rights of

adults in other settings.” Morse v. Frederick, 551 U.S.

393, 396–97 (2007) (quoting Bethel Sch. Dist. No. 403

v. Fraser, 478 U.S. 675, 682 (1986)); Lee, supra, at

878. So while students are sometimes subject to more

speech restrictions than adults, “it can hardly be

argued that [they] . . . shed their constitutional rights

to freedom of speech or expression at the schoolhouse

gate.” Tinker, 393 U.S. at 506; Holden, supra, at 243.

Historically, the First Amendment’s purpose was

to protect “individual freedom of mind in preference

to official disciplined uniformity” in thought by

government “official[s],” whether “high or petty.”

Barnette, 319 U.S. at 637, 642; accord Tinker, 393

U.S. at 511; Morse, 551 U.S. at 423 (Alito, J.,

concurring). The First Amendment’s core includes

protecting dissent and protest about government

action. Waldman, supra, at 592. This Court’s First

Amendment jurisprudence thus reflects a deep

11

distrust of government censorship, since the

government may stifle certain messages not out of

legitimate concern about the harm that the speech

might cause, but out of an illegitimate dislike for the

message. See Holden, supra, at 287; Doering, supra,

at 660; accord Morse, 551 U.S. at 423 (Alito, J.,

concurring). Political speech about matters of public

concern, including speech criticizing public officials,

lies “at the core of what the First Amendment is

designed to protect.” Morse, 551 U.S. at 403 (citation

omitted); see Tinker, 393 U.S. at 505–06.

“In the absence of a specific showing of

constitutionally valid reasons to regulate their

speech, students are entitled to freedom of expression

of their views,” without regard to whether those views

conflict with the “particular opinion[s]” of their

schools. Tinker, 393 U.S. at 511. Thus, students

possess a robust First Amendment right to

“comment[ ] on any political or social issue,” Morse,

551 U.S. at 422 (Alito, J., concurring), and to offer

bona fide critique of the government and government

officials—including their school, and administrators

and teachers, see Holden, supra, at 287, 289;

Waldman, supra, at 592, 659. Public schools “are,

after all, organs of the State,” which means that

school administrators and teachers are also

government officials.

Morse, 551 U.S. at 423

(Alito, J., concurring); accord Holden, supra, at 287;

Waldman, supra, at 592, 659 n.3. Further, the

classroom is often the first experience of the power of

government that many students have, and so the

12

school is a particularly influential public institution

in the lives of students. Holden, supra, at 243. And,

of course, bona fide critiques of the school

administration, school policy, or school officials, are

critiques of the government itself, firmly within the

First Amendment’s core. Id. at 293; Waldman, supra,

at 594; Morse, 551 U.S. at 422 (Alito, J., concurring).

2. In our view, schools have no authority under the

more-permissive Tinker framework to regulate

students’ bona fide commentary when published

online.

The Tinker rule addresses the narrow

problem of disruption of the student-learning

environment on campus, including from students’

core political speech. However, that rule would

undermine significant First Amendment values if this

Court were to apply it to bona fide commentary from

students on the Internet. Stated differently, student

cyberspeech comprising such bona fide commentary

falls within a constitutional “safe harbor” from

schools’ regulatory authority under Tinker.

As this Court held in Tinker, when students are on

campus, schools may, under some circumstances,

have more leeway to regulate even the high-value

speech of students—that is, speech comprising

matters of public concern or bona fide critiques of the

school or its officials. See Waldman, supra, at 596;

Holden, supra, at 250–51; Doering, supra, at 642–43;

accord Tinker, 393 U.S. at 513. Specifically, under

Tinker, schools may regulate even this high-value

student speech if it “materially disrupts classwork or

13

involves substantial disorder or invasion of the rights

of others.” 393 U.S. at 513. For example, a student

engaging in political speech at an inappropriate

time—such as during an algebra lecture, see

Waldman, supra, at 594–95—could face school

sanction, whereas the school cannot punish nondisruptive political speech, such as the black

armbands of Tinker, Holden, supra, at 250–51.

When students’ bona fide commentary or critique

moves online, schools lose the authority to regulate it

under the relaxed Tinker framework. In other words,

default First Amendment doctrine applies when

schools attempt to regulate students’ off-campus

cyberspeech comprising bona fide commentary on

matters of public concern, on the school, or about

school officials. See Holden, supra, at 280; Waldman,

supra, at 613. Giving school officials power to censor

bona fide online commentary raises serious questions

about the suppression of student dissent from the

school’s chosen educational mission. See Waldman,

supra, at 592; accord Morse, 551 U.S. at 423 (Alito, J.,

concurring). It invokes the specter of signaling to

students that they cannot express bona fide

disagreement with what is happening at school, even

when they use their own device at home, not on school

time. Waldman, supra, at 592.

This Court has a long history of protecting such

high-value speech, including bona fide critiques and

commentary. Accord Morse, 551 U.S. at 422 (Alito, J.,

concurring) (joining the majority opinion with the

14

understanding that “it provides no support for any

restriction of speech that can plausibly be interpreted

as commenting on any political or social issue”). A

non-exclusive list of factors determining what counts

as bona fide commentary might include whether the

student speech touches on politics, social issues,

school policies, individual class policies, and the like.

Waldman, supra, at 653–54. By contrast, speech that

simply targets a particular individual for personal

attack would generally not amount to bona fide

commentary. Id. at 657–58; see Holden, supra,

at 280.

High-value, off-campus student cyberspeech does

not generally cause the kinds of disruption recognized

in Tinker as justifying stronger speech regulation of

students on campus. See Tinker, 393 U.S. at 509, 513;

see also infra Part II.C. While “much political and

religious speech might be perceived as offensive to

some,” Morse, 551 U.S. at 409, including to school

officials, that offense cannot justify restricting that

speech, Waldman, supra, at 654; see Holden, supra,

at 279. Or, as Tinker explained, “discomfort and

unpleasantness . . . always accompany an unpopular

[political] viewpoint,” yet that does not authorize

“school officials” to “prohibit[ ] [that] particular

expression of opinion” by students. 393 U.S. at 509;

Lee, supra, at 835–36. To hold otherwise would allow

schools to become “enclaves of totalitarianism,”

possessing “absolute authority over their students,”

even when expressing bona fide critique online and off

15

campus. Tinker, 393 U.S. at 511; Waldman, supra,

at 592.

Further, student online speech that offers bona

fide critiques of the school or its officials may

highlight questionable behavior by these government

actors, informing the public about problems at the

school. Waldman, supra, at 654. This, in turn, could

expose actual wrongdoing at the school. Holden,

supra, at 287; Waldman, supra, at 654. Students, just

like adults, deserve the right to speak and expose

government wrongdoing—by expressing bona fide

critique online—when school authorities misbehave.

Holden, supra, at 287, 291–92. And students only

have that right when engaging in such critique

triggers the default First Amendment protection,

rather than Tinker’s relaxed standard. Id. at 287,

291–92.

3. While default First Amendment rules apply to

student off-campus cyberspeech comprising bona fide

commentary or critique, supra Part II.A.2, schools

may have more leeway to regulate student online

speech that has lower constitutional value, or that

falls outside the First Amendment’s core. Such lower

value speech includes, for example, cyberspeech that

is bullying to other students or harassing to teachers.

Waldman, supra, at 651.

This Court’s student-speech jurisprudence already

recognizes that schools may, under some

circumstances, have more authority to regulate the

16

speech of students when that speech has lower

constitutional value. In Morse, for example, this

Court held that a school could prohibit a student from

displaying a banner reading “BONG HiTS 4 JESUS”

because this Court determined that the banner

“celebrat[ed] drug use,” rather than offering bona fide

commentary on the Nation’s drug policy. 551 U.S. at

401–03, 409; see Waldman, supra, at 598–99 n.43,

659; Holden, supra, at 256–57. This Court explained

that “part of a school’s job is educating students about

the dangers of illegal drug use,” and that job is

undermined by “[s]tudent speech celebrating illegal

drug use at a school event.” Morse, 551 U.S. at 408;

accord Fraser, 478 U.S. at 680 (emphasizing “[t]he

marked distinction between the political ‘message’ of

the armbands in Tinker and the sexual content of [the

student’s] speech in this case”).

To be sure, when considering whether a school

may regulate specific student online speech,

complications will sometimes arise in separating

hostile speech from legitimate, bona fide commentary.

Waldman, supra, at 651. The school and courts may

face “difficult[ies]” when “conducting the[ ] inquiries”

needed to classify student online speech as either

bona fide commentary (subject to school regulation

only under default First Amendment principles) or as

cyberbullying (subject to such regulation under the

broader Tinker standard). Garcetti v. Ceballos, 547

U.S. 410, 418 (2006). This is especially so when

student online speech both contains cyberbullying or

other harassing content and also expresses a bona

17

fide opinion or comments on a political, social, or

school-related issue. Waldman, supra, at 598 n.43,

659; Holden, supra, at 287. Yet, even in those

circumstances, schools should still be able to regulate

the hostile portion of that speech under Tinker—

particularly where that portion dominated the mix—

assuming the other two elements of our proposed test

are satisfied. Infra Part II.B–C. Those other two

elements themselves would reduce the frequency of

complications caused by such combined speech, since

they further cabin and clarify the scope of schools’

authority here, striking the appropriate balance

between free-speech rights of students and the

legitimate interests of the school. Waldman, supra,

at 651.

B. The Speech Must Also Have A Close Nexus To

The School

When student online speech strays beyond bona

fide commentary to include cyberbullying or other

harassing content, see supra Part II.A, the school may

then have the power to regulate that speech under

Tinker if the speech has a close nexus to the school.

Student cyberspeech may satisfy this close-nexus

element if the content of the speech sufficiently

relates to the school, or if it is reasonably foreseeable

that the speech would reach the school, or if the

student speaker intended the speech to reach the

school.

18

This close-nexus element is necessary to confine

schools to their proper role in society. Waldman,

supra, at 655; Lee, supra, at 884. The Constitution

entrusts parents or guardians, not school officials,

with the primary duty to oversee student cyberspeech

and take appropriate corrective action in response.

See Waldman, supra, at 594; Holden, supra, at 240.

Without a robust close-nexus requirement to enforce

these boundaries, schools risk becoming roving

commissions of student speech, encroaching on the

prerogatives of the family to raise students as full

members of society. Waldman, supra, at 654–55.

Off-campus student cyberspeech may satisfy this

close-nexus element in three scenarios, in appropriate

cases. First, the content of the online, off-campus

speech may sufficiently relate to the school.

Waldman, supra, at 655; Holden, supra, at 284, 289.

Second, there may be a reasonable foreseeability that

the off-campus cyberspeech would reach school

grounds. Waldman, supra, at 655; Holden, supra, at

284, 289; W. Black, supra, at 552. Third, the student

speaker may intend the cyberspeech to reach the

campus environment or, in other words, purposefully

direct the cyberspeech there. Waldman, supra, at

655; Holden, supra, at 284, 289; see Doering, supra,

at 671; W. Black, supra, at 552.

The need to demonstrate this close nexus between

the student online speech and the school itself—a

need met by each of these three scenarios—reflects

the commonsense understanding that the more

19

removed from campus the speech is, the more there is

reason to doubt the sincerity of the school’s efforts to

regulate it. Holden, supra, at 283, 285. Therefore,

the close-nexus element ultimately connects online

student speech to the school’s legitimate sphere of

authority, potentially justifying the school’s

regulation under the Tinker standard. Waldman,

supra, at 625; Doering, supra, at 637; accord Holden,

supra, at 283.

Certain factors may indicate the presence or

absence of the close-nexus element, depending on the

specific factual scenario presented in a given case.

For example, a student may send the cyberspeech to

another student only in an email or text, under the

reasonable belief that the recipient will not distribute

it further. See Waldman, supra, at 623; W. Black,

supra, at 552. Or the student may post the speech to

a social-media site under the reasonable belief that

access to the site will remain limited and apart from

the school environment, such as a private Facebook

Group with a very small number of members who all

lack school ties. See Holden, supra, at 284, 289. In

contrast, if the student affirmatively invites a large

number of fellow students to join in the

cyberbullying—perhaps by inviting them all to a

Facebook Group showcasing the speech—that would

likely satisfy this close-nexus element. Holden,

supra, at 284, 289, 295; Lee, supra, at 883–84. So too

would the student-speaker accessing the online

speech on campus itself, such as by logging onto that

Facebook Group from a school computer used by

20

multiple students. Waldman, supra, at 658. That

said, the accidental or inadvertent transmission of

student cyberspeech to campus would almost

certainly fail the close-nexus element. Holden, supra,

at 284, 289. So, for example, if a student’s sibling

emailed that student’s private blog to a teacher—

either to embarrass the student, or even by sheer

mistake—that student would not have engaged in

speech falling within the school’s authority under

Tinker. See Waldman, supra, at 622–23; Holden,

supra, at 283–84.

C. And The Speech Must Be Reasonably Likely To

Cause A Substantial Disruption To The

Student-Learning Environment

Finally, assuming the other two elements are met,

supra Part II.A–B, the school may regulate student

online speech under the relaxed Tinker framework

only if the speech would substantially disrupt the

school’s student-learning environment.

1. A school’s legitimate interests in regulating

student speech differ in important respects as

between on-campus speech and off-campus online

speech.

With respect to on-campus student speech, this

Court’s student-speech cases recognize two distinct

interests that afford schools greater regulatory

authority over this speech. Waldman, supra, at 595–

97, 659; Holden, supra, at 290–91.

First, as

21

articulated in Tinker, schools may restrict on-campus

speech that “materially disrupts classwork or

involves substantial disorder or invasion of the rights

of others.” 393 U.S. at 512; Waldman, supra, at 596–

97; see Holden, supra, at 291; Doering, supra, at 673.

Second, this Court held in Fraser, 478 U.S. 675, and

Hazelwood School District v. Kuhlmeier, 484 U.S. 260

(1988), that schools may restrict on-campus student

speech when the restrictions themselves teach

students the line between appropriate and

inappropriate expression, Waldman, supra, at

597–98.

With respect to student online speech, however,

we propose that only the school’s interest in

protecting the student-learning environment—the

first interest discussed above, comprising protection

of classwork from substantial disruption, as well as

preventing invasion of students’ rights—could

support a school’s broader, Tinker-based authority to

regulate. Waldman, supra, at 655–56; Lee, supra, at

886. The school’s legitimate need to protect the

student-learning environment from substantial

disruption, including disruption from hostile speech,

does not depend on the origin of that disruption.

Waldman, supra, at 655; Doering, supra, at 667. That

is, because this legitimate school interest is not tied

to geographic boundaries, hostile student cyberspeech

may impair this interest just as much as hostile

student speech on campus. Waldman, supra, at 655.

In marked contrast, the school’s interest in teaching

students appropriate expression—the second interest

22

discussed above—does generally end at the campus

boundaries, since students’ parents or guardians

assume the authority to regulate appropriate student

expression once students leave the school grounds.

Id. at 655–56.

2. Cyberbullying and other online harassing

speech may, when sufficiently severe, substantially

disrupt the student-learning environment, thus

justifying school regulation of such speech under

Tinker. The disruptive potential of this hostile

cyberspeech is all the more apparent in light of the

nature of online communication: it takes far less effort

than its traditional on-campus counterparts, see

Packingham, 137 S. Ct. at 1735; it may be seen by

hundreds (or even thousands) of fellow students in the

blink of an eye, Holden, supra, at 287; accord Pew

Research Center, Teens’ Social Media Habits and

Experiences, supra; Pew Research Center, Teens,

Social Media & Technology 2018, supra; it

reverberates indefinitely across the Web, Waldman,

supra, at 592; Lee, supra, at 858–59; and it may be

harsher in tone, given the Internet’s disinhibition

effect, Waldman, supra, at 592; see also id. at 647–49.

Consider cyberbullying. This is cyberspeech that

is ridiculing, disparaging, and abusive, directed at a

“target student” and assuming an unforgiving,

“everywhere and all the time” quality. See id. at 649–

50. Cyberbullies often pair their harassing speech

with an invitation to other student peers to publicly

join in, magnifying the speech’s injurious impact.

23

Holden, supra, at 238, 280, 298; W. Black, supra, at

554. And this speech frequently causes great harm to

its victim, including by undermining the target’s

psychological and emotional well-being. Holden,

supra, at 295. This all, in turn, impairs the target

student’s ability to concentrate in class, to operate at

his or her normal academic potential, and to learn

effectively what the school is attempting to teach. Id.

at 290; Lee, supra, at 886.

Online harassment of teachers and school

administrators can also disrupt student learning.

While online harassment of these school officials

ranges in severity, see Waldman, supra, at 598–99 &

n.43; Holden, supra, at 279, its more extreme versions

may significantly undermine a teacher’s authority

with the students who observed this hostile speech,

such that the teacher cannot adequately manage and

control his or her classroom, degrading the

effectiveness of the learning environment, Waldman,

supra, at 654–55, 658–59. Further, severe forms of

harassment may cause emotional harm to the

targeted teachers. Id. That harm could then impair

the teachers’ abilities to do their jobs—teaching

academic material to students—thus directly

disrupting student learning en masse. Id. Such

online harassing may do so much damage to a teacher

that it undermines students’ learning environment,

implicating the school’s legitimate concerns. Holden,

supra, at 292.

24

Truly disruptive examples of cyber harassment

toward school officials are not hard to find. See

Waldman, supra, at 620–29. Consider the case of an

algebra teacher targeted by a student’s website,

which website severely attacked her appearance,

repeated “Fuck you . . . you are a bitch” 136 times,

graphically depicted her being murdered, and

requested money to pay for the teacher’s

assassination. Id. at 620–22 (discussing J.S. v.

Bethlehem Sch. Dist., 807 A.2d 847 (Pa. 2002)). This

teacher suffered severe emotional harm, ultimately

resulting in her taking medical leave for the

remainder of the school year, and requiring the school

to hire three substitute teachers. Id. at 621. Causing

the students in that algebra class to acclimate to four

different algebra teachers during a single school year

is unquestionably a substantial disruption of their

student-learning environment— and the direct cause

was hostile cyberspeech.

Importantly, because student online speech must

cause substantial disruption to the student-learning

environment before school regulation may occur

under Tinker, not all hostile cyberspeech will fall

within the school’s power to regulate under this

broader standard. The high substantial-disruption

threshold prevents schools from reflexively or

automatically regulating under Tinker harassing

student cyberspeech that, although possessing some

hostility, also expresses bona fide critique of the

school or its officials. Waldman, supra, at 654–56,

659; Holden, supra, at 292–93. And it offers more

25

protection for immature student cyberspeech that,

while offensive, falls short of the cruelty typifying

cyberbullying.

See Holden, supra, at 292–94;

Waldman, supra, at 624–25; accord Holden, supra, at

279. This is a speech-protective feature of this final

element, designed to provide students with

“breathing space” if they make mistakes online.

*

*

*

In all, Amici respectfully submit that their threeelement test strikes the proper balance between

protecting students’ broad First Amendment right to

engage in bona fide commentary and critique online

and schools’ legitimate need to protect the studentlearning environment from hostile cyberspeech and

other improper disruption. Should this Court adopt

Amici’s approach, we respectfully submit that this

Court should thereafter reverse the Third Circuit’s

judgment and remand to the lower courts to apply this

test in the first instance. Amici, again, take no

position on the proper application of their test on

remand to Respondent’s cyberspeech here.

CONCLUSION

This Court should reverse the judgment below and

remand the case for further proceedings.

26

Respectfully submitted,

SARAH E. CRANDALL

TROUTMAN PEPPER

HAMILTON SANDERS LLP

1001 Haxall Point,

15th Floor

Richmond, Virginia 23219

March 2021

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

CHRISTOPHER VERDUGO

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe,

Suite 3900

Chicago, Illinois 60606

(312) 759-5947

misha.tseytlin@

troutman.com