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 AMICI CURIAE

MARY BETH TINKER AND JOHN TINKER

IN SUPPORT OF RESPONDENTS

___________________

Robert Corn-Revere*

Caesar Kalinowski IV

Davis Wright Tremaine LLP

1301 K Street, NW

Suite 500 East

Washington, DC 20005

(202) 973-4200

bobcornrevere@dwt.com

caesarkalinowski@dwt.com

Counsel for Amici Curiae

*Counsel of Record

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

QUESTION PRESENTED

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

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

TABLE OF AUTHORITIES...................................... iii

INTERESTS OF AMICI CURIAE ............................. 1

INTRODUCTION ........................................................ 2

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT ............................................................... 6

I. Petitioner Seeks to Make School Speech

Restrictions the Norm............................................ 6

A. The Third Circuit Properly Read

Tinker as a Narrow Exception That Allows

Only Limited Speech Restrictions ................... 7

B. Petitioner Treats Protections for Student

Speech as the Exception, Not the Rule .......... 10

II. Petitioner’s Proposed Rule Would Eviscerate

Student Speech Rights Set Forth in Tinker........ 14

A. Petitioner’s Test for Regulating Off-Campus

Speech Has No Limiting Principles ............... 15

B. Petitioner’s Proposed Rule Would Effectively

Overturn Tinker and Broadly Undermine

Student Speech Rights ................................... 20

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

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ambach v. Norwick,

441 U.S. 68 (1979) ................................................ 26

Bd. of Airport Comm’rs of City of Los

Angeles v. Jews for Jesus, Inc.,

482 U.S. 569 (1987) .............................................. 19

Bell v. Itawamba Cty. Sch. Dist.,

799 F.3d 379 (5th Cir. 2015) ...................... 5, 13, 16

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

478 U.S. 675 (1986) ................................................ 3

Brown v. Glines,

444 U.S. 348 (1980) .............................................. 12

Cohen v. California,

403 U.S. 15 (1971) .................................................. 3

D.J.M. v. Hannibal Pub. Sch.

Dist. No. 60,

647 F.3d 754 (8th Cir. 2011) ................................ 13

Dariano v. Morgan Hill Unified

Sch. Dist.,

767 F.3d 764 (9th Cir. 2014) ................................ 18

Doe v. Pulaski Cty. Special Sch. Dist.,

306 F.3d 616 (8th Cir. 2002) ................................ 13

iv

Doninger v. Niehoff,

527 F.3d 41 (2d Cir. 2008) ................................... 13

Farrington v. Tokushige,

273 U.S. 284 (1927) ................................................ 6

Garcetti v. Ceballos,

547 U.S. 410 (2006) ........................................ 11, 12

Hazelwood School District v. Kuhlmeier,

484 U.S. 260 (1988) .............................................. 24

Klein v. Smith,

635 F. Supp. 1440 (D. Me. 1986) ......................... 25

Kowalski v. Berkeley Cty. Schs.,

652 F.3d 565 (4th Cir. 2011) ................................ 13

LaVine v. Blaine Sch. Dist.,

257 F.3d 981 (9th Cir. 2001) ................................ 14

Layshock ex rel. Layshock v. Hermitage

Sch. Dist.,

650 F.3d 205 (3d Cir. 2011) ................................. 24

Meriwether v. Hartop,

No. 20-3289, 2021 WL 1149377

(6th Cir. Mar. 26, 2021) ....................................... 23

Meyer v. Nebraska,

262 U.S. 390 (1923) ................................................ 6

Minn. Voters Alliance v. Mansky,

138 S. Ct. 1876 (2018) .......................................... 20

v

Morse v. Frederick,

551 U.S. 393 (2007) .............................. 3, 11, 24, 25

Olmstead v. United States,

277 U.S. 438 (1928) .............................................. 26

Parker v. Levy,

417 U.S. 733 (1974) .............................................. 12

Perry v. Sindermann,

408 U.S. 593 (1972) .............................................. 12

Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925) ................................................ 6

Saxe v. State Coll. Area Sch. Dist.,

240 F.3d 200 (3d Cir. 2001) ................................. 19

Shanley v. Northeast Indep. Sch. Dist.,

462 F.2d 960 (5th Cir. 1972) .......................... 24, 25

J.S. ex rel. Snyder v. Blue Mountain

Sch. Dist.,

650 F.3d 915 (3d Cir. 2011) ................................. 24

Thomas v. Bd. of Educ., Granville Cent.

Sch. Dist.,

607 F.2d 1043 (2d Cir. 1979) ......................... 24, 25

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

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

vi

United States v. Playboy Entm’t Grp.,

Inc.,

529 U.S. 803 (2000) ................................................ 3

United States v. Stevens,

559 U.S. 460 (2010) ................................................ 3

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

319 U.S. 624 (1943) ...................................... 4, 6, 26

Winters v. New York,

333 U.S. 507 (1948) ................................................ 3

Wisniewski v. Bd. of Educ. of Weedsport

Cent. Sch. Dist.,

494 F.3d 34 (2d Cir. 2007) ................................... 13

Wynar v. Douglas Cty. Sch. Dist.,

728 F.3d 1062 (9th Cir. 2013) .............................. 13

Other Authorities

Alex Morley & Samantha Harris, In

anti-intellectual email, Wellesley

profs call engaging with

controversial arguments an

imposition on students, FIRE

(thefire.org), Mar. 21, 2017 .................................. 22

The Beatles, Taxman, REVOLVER (Apple

Records, 1966) ...................................................... 15

vii

Catherine J. Ross, LESSONS IN

CENSORSHIP (Cambridge: Harvard

Univ. Press, 2015) .......................................... 22, 23

David L. Hudson, Jr., Unsettled

Questions in Student Speech Law, 22

U. PA. J. CONST. L. 1113 (2020) ....................... 7, 11

Erwin Chemerinsky, The

Deconstitutionalization of Education,

36 LOY. U. CHI. L. J. 111 (2004) ........................... 11

Greg Lukianoff & Jonathan Haidt, THE

CODDLING OF THE AMERICAN MIND

(New York: Penguin Press, 2018)........................ 22

http://tinkertourusa.org/about/tinkertour/ ................. 2

https://newseumed.org/tools/artifact/

mary-beth-tinker-podcast ...................................... 2

Kelly Shackelford, Mary Beth and John

Tinker and Tinker v. Des Moines:

Opening the Schoolhouse Gates to

First Amendment Freedom, 39 J.

SUP. CT. HISTORY 372 (2014) ............................... 21

Lisa Feldman Barrett, When is Speech

Violence?, N.Y. TIMES (July 14, 2017) .................. 22

Ronald K.L. Collins & Sam Chaltain,

WE MUST NOT BE AFRAID TO BE

FREE (2011) ...................................................... 1, 21

viii

Stephen Wermiel, Tinkering With

Circuit Conflicts Beyond the

Schoolhouse Gate, 22 U. PA. J.

CONST. L. 1135 (2020) .......................................... 11

1

INTERESTS OF AMICI CURIAE 1

A little over a half-century ago, John and Mary

Beth Tinker, along with Christopher Eckhardt, were

petitioners in the landmark case that established “[i]t

can hardly be argued that either students or teachers

shed their constitutional rights to freedom of speech

or expression at the schoolhouse gate.” Tinker v. Des

Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969).

That case arose at the end of 1965 as the Vietnam

War was becoming increasingly controversial.

Although American involvement was still in its early

stages, almost 2,000 U.S. soldiers had already died in

the conflict, and another 6,000 would perish in the

coming year.

See Ronald K.L. Collins & Sam

Chaltain, WE MUST NOT BE AFRAID TO BE FREE 270

(2011). John Tinker, then fifteen years old, and his

thirteen-year-old sister Mary Beth, an eighth-grader,

decided to express their grief over the loss of life and

to show support for a proposed Christmas truce by

wearing black armbands to school.

Approximately ten students in Des Moines

participated in the silent protest despite the fact that

the School Board in an emergency meeting had

adopted a policy prohibiting the armbands. Five

students who violated the policy were suspended from

school, including John and Mary Beth Tinker.

1

All parties have consented to this amici curiae brief. No

counsel for a party authored this brief in whole or in part, and no

person or entity other than amici and its counsel made a

monetary contribution to the preparation or submission of this

brief.

2

As a result, this Court was asked to decide how to

apply First Amendment principles “in light of the

special characteristics of the school environment” and

it concluded “[i]n our system, state-operated schools

may not be enclaves of totalitarianism.” Tinker, 393

U.S. at 506, 511. In striking a balance between

fundamental constitutional safeguards and the

authority of school officials to “prescribe and control

conduct in the schools,” this Court held that

“undifferentiated fear or apprehension of disturbance

is not enough to overcome the right to freedom of

expression.” Id. at 507-08.

That decision, and the personal experiences that

led to it, forged amici’s lifelong commitment to

promoting First Amendment values. John Tinker is

the general manager of KPIP, a low-power community

FM radio station in Fayette, Missouri. Each year, he

corresponds with dozens of students who are working

on school projects related to Tinker v. Des Moines, and

several times each year, he speaks publicly in

academic settings about the case. Mary Beth Tinker,

a retired Registered Nurse, has also been active

promoting student rights and civics education as part

of

the

“Tinker

Tour.”

See

http://

tinkertourusa.org/about/tinkertour/. The armband

she wore in 1965 had been on permanent display at

the Newseum in Washington, D.C.

See

https://newseumed.org/tools/artifact/mary-bethtinker-podcast.

INTRODUCTION

Cases involving student speech can sometimes

seem insignificant because they occasionally involve

trivial expression. In Tinker, however, this Court

3

recognized that young people can contribute to the

marketplace of ideas, that students “in school as well

as out of school are ‘persons’ under our Constitution,”

and that “[s]chool officials do not possess absolute

authority over [them].” 393 U.S. at 511. Since then,

the Court has been less inclined to recognize First

Amendment protection in cases where the students

seemed to lack a serious message. It held school

authorities can punish a student for making school

assembly speech laced with double entendre, Bethel

Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986),

or sanction an absurdist banner at a school-sponsored

event that the Court interpreted as a pro-drug

message with no political content. Morse v. Frederick,

551 U.S. 393, 406 n.2 (2007).

This case risks being lumped in with such

controversies because it arose from a dispute

involving a cheerleader cursing her school and

cheerleading on social media. But while this “may

seem at first blush too inconsequential” to arouse this

Court’s concern, “the issue it presents is of no small

constitutional significance.” Cohen v. California, 403

U.S. 15 (1971). The First Amendment does not grade

on a curve; this Court has long recognized that the

Constitution protects freedom of expression even

though “[m]ost of what we say to one another lacks

‘religious,

political,

scientific,

educational,

journalistic, historical, or artistic value’ (let alone

serious value).” United States v. Stevens, 559 U.S.

460, 479 (2010); United States v. Playboy Entm’t Grp.,

Inc., 529 U.S. 803, 826 (2000); Winters v. New York,

333 U.S. 507, 510 (1948).

Like all important First Amendment cases, this

one is about power, and the authority Petitioner asks

4

this Court to approve is by any measure

extraordinary. Even petty officials have the ability to

crush individual rights, and for that reason the Court

has held that the Bill of Rights limits boards of

education and teachers who “may feel less sense of

responsibility to the Constitution.” Such matters may

seem “relatively trivial to the welfare of the nation,”

but the Court has recognized “[t]here are village

tyrants as well as village Hampdens, but none who

acts under color of law is beyond reach of the

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

319 U.S. 624, 637-38 (1943).

In Tinker, this Court allowed a narrow exception

to the usual constitutional rule prohibiting speech

regulation “in light of the special characteristics of the

school environment.” 393 U.S. at 506. Now, however,

Petitioner asks this Court to make the exception the

rule, and to extend government control over speech far

beyond the schoolhouse gate and even into the home.

SUMMARY OF ARGUMENT

Although this Court in Tinker affirmed that

students “are possessed of fundamental rights which

the State must respect,” id. at 511, and that the

government’s ability to restrict speech is limited and

exceptional, id. at 513, the Petitioner seeks to make

the exception the rule and substantially enlarge

schools’ censorial authority.

The Third Circuit

accurately perceived Tinker’s narrow accommodation

regarding student speech in the school environment,

and issued a carefully focused ruling that addressed

the interest presented here – school discipline – while

leaving for future cases questions about how schools

may protect against invasions of others’ rights.

5

Petitioner ignores the Third Circuit’s focus, and bases

its argument to expand school authority to reach offcampus speech almost entirely on an interest in

preventing violence, bullying, or harassment, issues

the Third Circuit expressly reserved and that are not

presented on these facts. It seeks to make school

supervision over student speech the expected norm,

not the exception, thus standing Tinker on its head.

Petitioner’s proposed rule for governing offcampus student speech includes no articulable

constitutional limits. The proposed rule would give

school officials the ability to regulate virtually any

speech communicated by students.

Although

Petitioner claims this is necessary because of

pervasive reach of the Internet, it makes government

control

of student

speech

“pervasive

and

omnipresent.” Pet. Br. 38 (quoting Bell v. Itawamba

Cty. Sch. Dist., 799 F.3d 379, 395-96 (5th Cir. 2015)

(en banc)). The Third Circuit correctly warned that

such an approach expands “Tinker’s schoolhouse gate

to encompass the public square.”

App. 29a.

Petitioner’s assurance that this will only affect

substantially disruptive speech rings hollow in light

of its efforts to use this authority to enforce a

universal civility code for student speech.

The expansive authority Petitioner advocates

would stifle far more than the use of offensive words.

It would empower school authorities to ban a wide

swath of speech on matters that concern young people,

including politics, religion, school administration, or

anything else that might cause controversy. It would

effectively overrule Tinker, and would peel away the

6

limits on governmental authority set forth in this

Court’s other school speech cases.

ARGUMENT

I.

PETITIONER SEEKS TO MAKE

SCHOOL SPEECH RESTRICTIONS

THE NORM

In Tinker, this Court laid down the constitutional

rule that students “are possessed of fundamental

rights which the State must respect” and, “[i]n the

absence of a specific showing of constitutionally valid

reasons to regulate their speech, students are entitled

to freedom of expression of their views.” 393 U.S. at

511. It stressed that the First Amendment “means

what it says,” and permits reasonable regulation of

speech-connected activities only in “carefully

restricted circumstances.” Id. at 513. It described

those circumstances as involving conduct that

“materially disrupts classwork or involves substantial

disorder or invasion of the rights of others.” Id. at 51314.

Tinker built on earlier holdings that the free

speech rights of minors are subject to “scrupulous

protection,” and that school authorities are

constrained by “the limits of the Bill of Rights.”

Barnette, 319 U.S. at 637. A key factor in this line of

cases is recognition that school officials may not

exceed their limited sphere of authority: “The child is

not the mere creature of the state; those who nurture

him and direct his destiny have the right, coupled

with the high duty, to recognize and prepare him for

additional obligations.” Pierce v. Soc’y of Sisters, 268

U.S. 510, 535 (1925). See Meyer v. Nebraska, 262 U.S.

7

390 (1923); Farrington v. Tokushige, 273 U.S. 284

(1927).

A.

The Third Circuit Properly Read

Tinker as a Narrow Exception That

Allows

Only

Limited

Speech

Restrictions

The Third Circuit correctly read Tinker as

affirming broad rights and permitting only narrowlycrafted exceptions. In light of the commands of the

First Amendment and the “special characteristics of

the school environment,” the Court struck a balance

designed to preserve the function of the schools while

recognizing “a limited zone of heightened

governmental authority.” App. 9a. See id. at 32a

(“From the outset, Tinker has been a narrow

accommodation.”). Under the Tinker formulation, the

authority to restrict student speech “remains the

exception, not the rule.” Id. 9a.

Tinker held that schools may constitutionally

restrict student speech in roughly two categories.

First, they can regulate speech that invades or

impinges on “the rights of other students to be secure

and to be let alone.” Id. 9a. (quoting Tinker, 393 U.S.

at 508). See also Tinker, 393 U.S. at 508-09, 512-14.2

Second, as part of their obligation to prescribe and

control conduct in the schools, school officials may

regulate speech that “would ‘materially and

2

This “invasion of the rights of others” prong of the Tinker test

has been referred to as the “forgotten part” of the Tinker case.

See, e.g., David L. Hudson, Jr., Unsettled Questions in Student

Speech Law, 22 U. PA. J. CONST. L. 1113, 1121 (2020).

8

substantially interfere with the requirements of

appropriate discipline in the operation of the school.’”

App. 9a (quoting Tinker, 393 U.S. at 509). This is the

“substantial disruption” prong of Tinker. In either

instance, however, the authority to regulate speech

requires more than an “undifferentiated fear or

apprehension of disturbance.” Id. (quoting Tinker,

393 U.S. at 508-09).

The Third Circuit applied the Tinker standard to

the facts before it – a social media posting that

evidently perturbed some of B.L.’s cheerleading squad

members and coaches (they were “visibly upset” we

are told) – and sought to determine whether such a

communication could be proscribed as something that

might materially interfere with the school’s operation.

It held that, under Tinker, a communication that

takes place entirely off school grounds, is not part of a

school sponsored or sanctioned activity, and does not

bear the imprimatur of the school, does not fall into

the Tinker exception for “substantially disruptive”

speech. Id. 11a-15a.

The Third Circuit was careful to confine its

analysis to the “substantial disruption” prong of

Tinker and not the exception for “invading the rights

of others.”

In holding that the “substantial

disruption” exception does not apply to off-campus

speech, it expressly reserved for another day “the

First Amendment implications of off-campus student

speech that threatens violence or harasses others.”

Id. 25a. It stressed that its holding does not affect the

line of cases that involve off-campus student speech

threatening violence or harassing particular students

or teachers, and that instances of such speech “would

9

no doubt raise different concerns and require

consideration of other lines of First Amendment law.”

Id. 34a-35a.3

There will obviously be some overlap between the

categories. A credible threat of serious violence

necessarily would be “substantially disruptive.” But

that is not the type of speech (or Tinker exception)

implicated by this case. The rules at issue here were

designed to enforce school discipline – to make sure

B.L. and others showed proper “respect for [their]

school, coaches, teachers, other cheerleaders and

teams,” and not use “foul language and inappropriate

gestures,” or otherwise “tarnish” the school’s image.

Id. 39a-41a.

The Third Circuit thus addressed whether the

Mahanoy Area School District could apply what

amounted to a civility code to off-campus student

speech that was not sponsored or endorsed by the

school, and it appropriately held that it would give

school administrators too much power “to quash

student expression deemed crude or offensive.” The

court warned that such authority “far too easily

metastasizes into the power to censor valuable speech

and legitimate criticism,” and that “the primary

responsibility for teaching civility rests with parents

and other members of the community.” Id. 42a.

3

Among other considerations, speech in these categories may

not qualify for First Amendment protection in the first place, and

may be subject to civil or criminal laws. App. 35a (“After all,

student speech falling into one of the well-recognized exceptions

to the First Amendment is not protected.”).

10

B.

Petitioner Treats Protections for

Student Speech as the Exception, Not

the Rule

In seeking to reverse the decision below, Petitioner

proposes precisely what the Third Circuit cautioned

against: “a broad rule reducing the free speech rights

of all young people who happen to be enrolled in public

school.” Id. 12a.

It is evident from the way Petitioner framed the

question before the Court that it seeks to make school

administrators’ control over student speech the

constitutional default. The question presented here

characterizes Tinker as holding “public school officials

may regulate speech that would materially and

substantially disrupt the work and discipline of the

school,” and asks the Court to extend the rule to apply

“to student speech that occurs off campus.”

Petitioner’s Brief (“Pet. Br.”) I. This transposition of

exception as rule is telling. It presents regulation of

student speech as the norm and any limitations of

that authority as an aberration.

Petitioner goes so far as to suggest that the rule of

Tinker has always allowed school authorities to reach

out into the community at large to regulate student

speech, and wonders how the Third Circuit could have

been so wrongheaded to suggest any limits to that

power. See Pet. Br. 4, 16-22. Petitioner’s brief waxes

nostalgic for a period in history, as described in

Justice Thomas’s concurrence in Morse, when the

First Amendment did not protect public school

students at all, and when schools enforced “absolute

obedience” and “teachers managed classrooms with an

iron hand.” In those good old days, “[t]eachers

11

commanded, and students obeyed.” Morse, 551 U.S.

at 411-16 (Thomas, J., concurring). See Pet. Br. 1316.

Tinker substantially loosened the grip of the

schoolmaster’s “iron hand” by establishing the

constitutional rule that public schools are not

“enclaves of totalitarianism” where “school officials …

possess absolute authority over their students.” 393

U.S. at 511. Petitioner tries to dispute that Tinker

only narrowly accommodated the state’s power to

restrict student speech, Pet. Br. 21, but Tinker is

widely acknowledged as the landmark case in this

area and the high water mark for student First

Amendment rights.4 Rote reaffirmations of the rule of

in loco parentis – as Petitioner reimagines Tinker –

are not the stuff of which landmark decisions are

made.

Not content just to transmogrify Tinker into a

charter for school censors, Petitioner seeks support

from what it calls “related doctrinal contexts.” Pet.

Br. 23-26. It compares public school students to public

employees, who “by necessity must accept certain

limitations on [their] freedom [of speech],” Garcetti v.

Ceballos, 547 U.S. 410, 418 (2006), or military

enlistees, who voluntarily relinquish some of their

rights (including the right to speak freely) during

their time of service. Pet. Br. 23-26. Petitioner also

4

See, e.g., Hudson, supra note 2, at 1114-15; Stephen Wermiel,

Tinkering With Circuit Conflicts Beyond the Schoolhouse Gate,

22 U. PA. J. CONST. L. 1135, 1138 (2020); Erwin Chemerinsky,

The Deconstitutionalization of Education, 36 LOY. U. CHI. L. J.

111, 124 (2004).

12

argues that schools can require “suspicionless drug

testing as a condition of participating in

extracurricular activities,” so (the reasoning goes)

why not allow universal speech supervision as a

condition of attending public school? Id. 24.

Petitioner’s efforts are, again, an attempt to shift

the constitutional poles and to make speech

restrictions the expected norm. But the constitutional

balance was struck in favor of free speech in Tinker,

and the government cannot whittle away student

rights by layering on false analogies. Like teachers,

students attend schools, but they did not enter an

employment relationship in which certain speech

lacks any First Amendment protection. Garcetti, 547

U.S. at 421 (“when public employees make statements

pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes”).

Unlike soldiers, public school students are not part of

“a specialized society separate from civilian society”

without the same level of free speech “that is protected

in the civil population.” Brown v. Glines, 444 U.S.

348, 354 (1980) (quoting Parker v. Levy, 417 U.S. 733,

743, 759 (1974)).

Surely the state cannot demand, as a condition of

attending public school, the wholesale surrender of

the right to speak freely any time there is a chance it

might get back to the school community and cause a

stir. Petitioner made such a claim in the court below,

and both the district court and the Third Circuit

properly rejected it as violating the doctrine against

unconstitutional conditions. App. 37a-38a. See Perry

v. Sindermann, 408 U.S. 593, 597 (1972) (government

“may not deny a benefit to a person on a basis that

13

infringes his constitutionally protected interests –

especially, his interest in freedom of speech”). This

Court should leave the constitutional presumption

where it is; freedom of speech is the rule, and the

government’s ability to restrict speech is a limited

exception.

Petitioner breathlessly warns of dire consequences

if this Court fails to give school officials broad license

to regulate off-campus student speech. Without such

authority, the district claims, school officials will be

powerless to combat threats of violence, bullying,

extreme harassment, identity theft, defamation,

crank phone calls, and a host of other misdeeds. Pet.

Br. 3, 11-12, 22, 31-37, 41. But all of these ills (and

virtually all of Petitioner’s proffered hypotheticals)

relate to the prong of Tinker that deals with invasions

of the rights of others, which is not at issue here. App.

25a, 31a. The same is true of the cases from other

circuits Petitioner cites to support the claim that

courts (other than the Third Circuit) permit the

regulation of off-campus speech.5 But as Petitioner

5

See Pet. Br. 20 & n.1. Petitioner cites D.J.M. v. Hannibal

Pub. Sch. Dist. No. 60, 647 F.3d 754, 758 (8th Cir. 2011)

(threatened school shooting); Kowalski v. Berkeley Cty. Schs., 652

F.3d 565, 567, 573 (4th Cir. 2011) (defamatory allegations about

a named student); Wynar v. Douglas Cty. Sch. Dist., 728 F.3d

1062, 1065-66 (9th Cir. 2013) (threatened school shooting); and

Bell, 799 F.3d at 396-97 (threats of violence). Petitioner also cites

Doninger v. Niehoff, 527 F.3d 41, 45, 53 (2d Cir. 2008), which

involved efforts to disrupt a school system’s administration.

Other cases involving threats of violence include Wisniewski v.

Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34, 36 (2d

Cir. 2007) (death threat); Doe v. Pulaski Cty. Special Sch. Dist.,

306 F.3d 616, 625 (8th Cir. 2002) (en banc) (threats of sexual

14

acknowledges, the types of speech courts considered

in those cases are the subject of generally applicable

laws, including criminal laws. Pet. Br. 41.

Such concerns are far afield from the speech

Petitioner seeks to regulate here – a crude Snapchat

post directed to no individual in particular that upset

a couple of fellow students. The power to reach

expression of this type entails a broad grant of

authority indeed.

II.

PETITIONER’S PROPOSED RULE

WOULD EVISCERATE STUDENT

SPEECH RIGHTS SET FORTH IN

TINKER

Petitioner asks the Court to reverse the Third

Circuit and to empower school authorities to punish

student speech whenever (1) a student intentionally

directs off-campus speech at the school environment

that foreseeably reaches that environment, Pet. Br.

27, and (2) the student’s speech threatens to

substantially disrupt school activities or interfere

with other students’ rights. Id. 9-10. The proposed

rule is so broadly conceived it would give authorities

virtually limitless ability to regulate student speech.

violence and death); and LaVine v. Blaine Sch. Dist., 257 F.3d

981, 984, 990 (9th Cir. 2001) (threat of school shooting).

15

A. Petitioner’s Test for Regulating OffCampus Speech Has No Limiting

Principles

Petitioner claims student speech rights will not be

diminished because Tinker remains as the “backstop,”

and maintains “[s]chools can never punish speech

solely because of disagreement with the student’s

message, no matter where that speech happens.” Pet.

Br. 4. Nor may schools “suppress speech they consider

inappropriate, uncouth, or provocative” because the

substantial disruption test will “ensure that schools

cannot misuse their authority and stifle students’

private expression.” Id. 26. It is a fine promise, but

utterly empty.

1. The proposed rule would give school officials the

ability to regulate virtually any speech communicated

by students. Petitioner maintains “much off-campus

speech is beyond the school’s purview” under its

proposed test, but it is hard to imagine what might be

excluded.6 According to the school district, speech is

“intentionally directed to the school community” if it

“refer[s] to school affairs or [is sent] directly to

classmates.” Id. 28. In short, this encompasses

anything students might talk about. It absolutely

includes any social media post, for as Petitioner

acknowledges, “classmates are all but certain to

access or recirculate online messages within the

school community.” Id. 38.

6

“Be thankful I don’t take it all.” The Beatles, Taxman,

REVOLVER (Apple Records, 1966).

16

The only safe way to avoid the school speech police

is to keep your thoughts to yourself. Or, as Petitioner

explains it, speech or other sentiments “will not

foreseeably reach the school environment if the

student does not share them with anyone and saves

the images on his home computer.”

Id. 28-29

(emphasis added). This is the very definition of the

chilling effect: keep your mouth shut, and nobody will

bother you.

Petitioner claims the school’s expansive reach is

necessary because “[t]he pervasive and omnipresent

nature of the Internet has obfuscated the oncampus/off-campus distinction.” Id. 38 (quoting Bell,

799 F.3d at 395-96). The solution, then, is to make

government supervision of student speech “pervasive

and omnipresent.” But as the Third Circuit correctly

found, this approach assumes “that the internet and

social media have expanded Tinker’s schoolhouse gate

to encompass the public square,” which “subverts the

longstanding principle that heightened authority over

student speech is the exception rather than the rule.”

App. 29a.

Petitioner claims that “[o]rdinary

conversations with family or neighbors are not

intentionally directed at the school,” Pet. Br. 28-29,

but even this is not guaranteed. Tinker arose from a

conversation between a group of adults and students

in a meeting at the home of Christopher Eckhardt, a

friend of the Tinkers who helped organize the effort

(and who was the third plaintiff in Tinker). Word of

their plan to wear black armbands got to the school

board, which held an emergency meeting to prohibit

the silent protest. Tinker, 393 U.S. at 504. Such

speech was clearly “directed at the school

environment,” under Petitioner’s proposed test, and

17

would fall within the school’s purview even if no

armbands had ever been worn; the plan to wear them

resulted from a discussion that included students, and

the mere word it might happen at school upset some

people.

Petitioner pretends its approach is consistent with

Tinker, but it is its polar opposite. This Court stressed

that “free speech is not a right that is given only to be

so circumscribed that it exists in principle but not in

fact,” and the Constitution permits only “reasonable

regulation of speech-connected activities in carefully

restricted circumstances.” Id. at 513. Such deference

to individuals’ right to free speech is hardly consistent

with what Petitioner is proposing.

2. Nor is the “substantial disruption” requirement

the “backstop” for student rights that Petitioner

imagines. Although Petitioner parrots the language

from Tinker that the “mere desire to avoid the

discomfort and unpleasantness that always

accompany an unpopular viewpoint” cannot justify

censorship, Pet. Br. 30 (quoting Tinker, 393 U.S. at

509), it identifies a wide range of school interests that

would permit suppression of student speech. Such

potential disruptions go far beyond the examples of

violent threats, bullying, harassment, defamation,

and other personal attacks that fuel Petitioner’s

argument, but, as explained above, are not implicated

by the Third Circuit’s decision.

Petitioner asserts that under its proposed

approach schools cannot “suppress speech they

consider inappropriate, uncouth, or provocative,” id.

26, yet that is precisely what this case is about. As

Petitioner explains things, the school district can

18

regulate the speech at issue here because “B.L.

intentionally sent a vulgar message regarding her

cheer team and criticizing her coaches to classmates

and teammates.” Id. 11. Although it maintains the

lower courts on remand will need to decide whether

the ensuing “disruption” was sufficiently substantial

to warrant punishment in this case, id., Petitioner

nevertheless urges that the state’s censorship

machinery may be set in motion when members of the

school community feel offended by a Snapchat post or

any social media post.

This problem arises whenever the assessment of

disruptiveness turns on the listeners’ reactions, see,

e.g., Dariano v. Morgan Hill Unified Sch. Dist., 767

F.3d 764, 768-69 (9th Cir. 2014) (O’Scannlain, J.,

dissenting from denial of rehearing en banc), and it is

what distinguishes this case from ones involving

violent threats, bullying, or other invasions of “the

rights of others.” Yet Petitioner maintains that offcampus student speech may be regulated or

prohibited whenever doing so is tethered to

“legitimate pedagogical needs,” Pet. Br. 19, which

could be pretty much anything.7

This means schools would be able to enforce

general civility codes, not just when students are in

school, but when they are out in the world (and

7

In this case, the “legitimate pedagogical needs” purportedly

involved school rules requiring cheerleaders to “have respect for

[their] school, coaches, teachers, other cheerleaders and teams”;

avoid “foul language and inappropriate gestures”; and refrain

from sharing “negative information regarding cheerleading,

cheerleaders, or coaches ... on the internet.” App. 5a-6a.

19

certainly on the Internet). As Petitioner explains

things, schools have a “discrete interest in ‘teaching

students the boundaries of socially appropriate

behavior’” and therefore “can dictate rules of decorum

for speech in the school setting, just as Congress

prescribes rules for legislative debate.” Id. (citation

omitted).

However, such speech regulations raise profound

First Amendment questions even when applied only

to on-campus speech. E.g., Saxe v. State Coll. Area

Sch. Dist., 240 F.3d 200, 210 (3d Cir. 2001) (Alito, J.)

(“[W]e have found no categorical rule that divests

‘harassing’ speech … of First Amendment

protection.”). They are even more threatening to

freedom of speech if extended beyond the school

grounds. In Saxe, for example, the Third Circuit

invalidated a school anti-discrimination policy as

unconstitutionally overbroad, in part because “the

Policy could even be read to cover conduct occurring

outside of school premises.” Id. at 214-18 & n.11.

Petitioner’s insistence that “schools cannot misuse

their authority and stifle students’ private expression”

because the Constitution prohibits “viewpoint

discrimination” is no answer. Pet. Br. 26, 29-30. Even

neutral policies can violate the right to free

expression; and the school’s policy in Tinker, would

have been equally unconstitutional if the school had

banned all political expression by students, and not

just Vietnam War protests. Of course, a viewpointbased policy is even more constitutionally infirm, but

the government cannot turn the schools into “First

Amendment Free Zone[s].” Cf. Bd. of Airport Comm’rs

of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S.

20

569, 574-75 (1987); Minn. Voters Alliance v. Mansky,

138 S. Ct. 1876, 1885-88 (2018) (citing Tinker).

B. Petitioner’s Proposed Rule Would

Effectively Overturn Tinker and

Broadly Undermine Student Speech

Rights

Reversing the decision below would have a far

broader effect than just sanitizing the social media

posts of disaffected cheerleaders. It would empower

school authorities to ban a wide swath of speech on

matters that concern young people, including politics,

religion, school administration, or anything else that

might cause controversy and lead officials to

anticipate “disruption.” Under Petitioner’s proposed

rule, any speech by students that might reach the

school is fair game.

Adopting Petitioner’s view of the law would

effectively overrule Tinker. If John and Mary Beth

Tinker were in school today, they most certainly

would have shared their anti-war views on social

media, and would have used such platforms to

organize the wearing of black armbands. Today, their

armbands may have been digital ones displayed over

the school’s logo in a social media post, combined with

a message to fellow students and friends petitioning

them to do them same. Even if the campaign were to

suggest student action only in the real world and

outside the schools, Petitioner’s proposed rule would

still reach them because their communication would

be “intentionally directed … at the school

environment,” would be sent “directly to classmates,”

and undoubtedly would be accessed or recirculated

“within the school community.” Pet. Br. 27-28, 38. If

21

such communications were considered sufficiently

“disruptive,” the student speech could be banned

entirely.

Petitioner takes comfort in Tinker’s substantial

disruption requirement, and claims it would prevent

school administrators from abusing their power, id.

26, but it is far from certain Tinker would have been

decided the same way under this updated scenario. To

begin with, John and Mary Beth’s peaceful protest

caused a significant controversy in their community

at the time, and a court today might well consider the

potential disruption substantial, particularly as

administrators extend their gaze beyond the

schoolhouse gate.8 Perhaps we were all made of

hardier stuff back then, but this Court had no

difficulty in concluding “the record does not

demonstrate any facts which might reasonably have

led school authorities to forecast substantial

disruption of or material interference with school

8

In his Tinker dissent, Justice Black wrote that “a teacher of

mathematics had his lesson period practically ‘wrecked’ chiefly

by disputes with Mary Beth Tinker,” some students poked fun or

shouted warnings at the students, and the protest “took the

students’ minds off their classwork and diverted them to

thoughts about the highly emotional subject of the Vietnam war.”

393 U.S. at 517-18 (Black, J., dissenting). Outside of school, a

person telephoned the Tinkers’ home on Christmas Eve and said

“the house would be blown up by morning.” Collins & Chaltain,

supra, at 277. A woman called for Mary Beth, and when the

young teen got on the line, said, “Is this Mary Beth? . . . I’m going

to kill you.” Kelly Shackelford, Mary Beth and John Tinker and

Tinker v. Des Moines: Opening the Schoolhouse Gates to First

Amendment Freedom, 39 J. SUP. CT. HISTORY 372, 378 (2014).

The Tinkers also received hate mail, and their house was

vandalized with red paint.

22

activities, and no disturbances or disorders on the

school premises in fact occurred.” Tinker, 393 U.S. at

514.

Today, we live in a world of trigger warnings, safe

spaces, speech codes, and “free speech zones.”9 Some

have even made the argument that speech is the same

thing as violence.10 Others have argued it actually

harms students if they have to “invest time and

energy in rebutting … speakers’ arguments” whose

views differ from their own.11 In this environment, it

is no surprise high schools have punished students

“for online postings that a hall monitor is ‘mean’ and

that a teacher is the ‘worst,’ sarcastic tweets referring

to teachers, off-campus performances, uncoerced

sexts, and online riffs poking fun at school personnel

and attacking fellow students that reflect poor

judgement and are disturbing and hurtful but not

illegal.” Catherine J. Ross, LESSONS IN CENSORSHIP

207 (Cambridge: Harvard Univ. Press, 2015).

“Schools all over the country have prevented and

9

Greg Lukianoff & Jonathan Haidt, THE CODDLING OF THE

AMERICAN MIND 6-7, 26-31, 202-03, 206-09 (New York: Penguin

Press, 2018).

10

E.g., Lisa Feldman Barrett, When is Speech Violence?, N.Y.

TIMES (July 14, 2017), https://www.nytimes.com/2017/07/14/opi

nion/sunday/when-is-speech-violence.html. See also Lukianoff &

Haidt, supra note 9, at 84-98.

11

Alex Morley & Samantha Harris, In anti-intellectual email,

Wellesley profs call engaging with controversial arguments an

imposition on students, FIRE (thefire.org), Mar. 21, 2017.

23

penalized students’ symbolic, nondisruptive political

expression.” Id. 138.

It requires no stretch of the imagination to foresee

that reversing the decision below would further lower

the threshold for what types of disruptions might be

considered “substantial.” The facts of this case well

illustrate the point with respect to off-color or

disrespectful speech, but the same concern extends to

political speech as well. When the Tinkers were in

school, Vietnam was a central controversy dividing

the nation, but today, students are speaking out on a

wide variety of issues that can arouse passions,

including gun violence, racial justice, the

environment, gay and transgender rights, religious

freedom, and our polarized political system.12

Under Tinker, school officials have the authority to

regulate behavior on campus to prevent such disputes

from causing disruptions that distract from the

educational mission. But under Petitioner’s proposed

rule, the government could reach outside campus to

quell contentious speech about controversial political

issues at the outset. Accepting this standard would

overturn existing precedent that has protected off12

A wide range of topics may cause controversy and potential

disruption. The Sixth Circuit recently noted “a Texas high school

generated controversy when it permitted its students to display

preferred gender pronouns on their online profiles.” Meriwether

v. Hartop, No. 20-3289, 2021 WL 1149377, at *10 (6th Cir. Mar.

26, 2021) (“the use of gender-specific titles and pronouns has

produced a passionate political and social debate”). Under

Petitioner’s proposed test, student commentary on such a

contentious issue, even on their personal social media accounts,

could become the subject of school discipline.

24

campus student publications that are separate from

the school, see, e.g., Thomas v. Bd. of Educ., Granville

Cent. Sch. Dist., 607 F.2d 1043, 1045 (2d Cir. 1979);

Shanley v. Northeast Indep. Sch. Dist., 462 F.2d 960,

964 (5th Cir. 1972), as well as students’ personal blogs

and webpages, e.g., J.S. ex rel. Snyder v. Blue

Mountain Sch. Dist., 650 F.3d 915, 921 (3d Cir. 2011);

Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650

F.3d 205, 215 (3d Cir. 2011).

Equally significant, Petitioner’s proposed rule

removes the limits to government authority this Court

articulated in prior decisions upholding speech

restrictions. In Fraser, for example, the Court held

that a school could sanction a student for making a

lewd speech at a school assembly because it was a

school-sanctioned event. 478 U.S. at 683 (school

boards have the authority to determine “what manner

of speech in the classroom or in school assembly is

inappropriate”). But this Court has made equally

clear that “[h]ad Fraser delivered the same speech in

a public forum outside the school context, it would

have been protected.” Morse, 551 U.S. at 405. Such

protection would no longer exist under Petitioner’s

proposed test. Fraser could be punished if he posted

his bawdy campaign speech online, or even if he

delivered it at a party attended by classmates and

word got back to the school.

The limits to school authority would likewise be

lifted from Hazelwood School District v. Kuhlmeier,

484 U.S. 260 (1988), since control over student

publications would no longer require the official

connections to the school. There, the Court held, for

school-sponsored publications, educators can “set high

25

standards for the student speech that is disseminated

under [the school’s] auspices.” Id. at 271-72. But

under Petitioner’s test, any speech by or about

students that foreseeably could reach the school is

subject to governmental supervision.

Likewise,

Joseph Frederick’s silly “Bong Hits for Jesus” banner

previously could be sanctioned only because it was

displayed at a school-sponsored event. Morse, 551

U.S. at 400-01. But here, if Petitioner prevails,

Frederick could be punished if he displayed the

banner anywhere, even as just an image on Facebook.

In short, there would be no limits – not even the

ones this Court has previously recognized.

Petitioner’s argument ignores the fact that “our

willingness to grant school officials substantial

autonomy within their academic domain rests in part

on the confinement of that power within the metes

and bounds of the school itself.” Thomas, 607 F.2d at

1052. Extending authority beyond those limits is “an

unconstitutional usurpation of the First Amendment.”

Shanley, 462 F.2d at 964.

CONCLUSION

This case may have started with a student

expressing strong emotion in a manner that was

offensive to some in a seemingly trivial social media

post. But the question now before the Court could not

be more important to the First Amendment rights of

young Americans. As one court explained when it

drew the line against extending Tinker’s exceptions to

off-campus speech, “freedom of expression may not be

made a casualty of the effort to force-feed good

manners to the ruffians among us.” Klein v. Smith,

635 F. Supp. 1440, 1442 (D. Me. 1986).

26

“Our Government is the potent, the omnipresent

teacher. For good or for ill, it teaches the whole people

by its example.” Olmstead v. United States, 277 U.S.

438, 468 (1928). This is a particularly important

concept in our educational institutions. Public schools

are vital institutions in preparing individuals for

participation as United States citizens and in

preserving the values of our democratic system.

Ambach v. Norwick, 441 U.S. 68, 76 (1979). “That

[schools] are educating the young for citizenship is

reason for scrupulous protection of Constitutional

freedoms of the individual, if we are not to strangle

the free mind at its source and teach youth to discount

important principles of our government as mere

platitudes.” Barnette, 319 U.S. at 637.

Respectfully submitted,

Robert Corn-Revere*

Caesar Kalinowski IV

Davis Wright Tremaine LLP

1301 K Street, NW

Suite 500 East

Washington, DC 20005

(202) 973-4200

bobcornrevere@dwt.com

caesarkalinowski@dwt.com

Counsel for Amici Curiae

*Counsel of Record