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At Supreme Court, Mean Girls Meet 1st Amendment

Even Supreme Court advocates can look at a case before the court with their own teenage years in mind. And lawyer Gregory Garre sums up Wednesday's case this way: "Mean girlsmeet the First Amendment."

More than a half-century ago, the court, in a 7-to-2 vote, ruled that students do have free speech rights at school, unless the speech is disruptive. Now, the justices are being asked to clarify whether, in the internet age, schools can punish students for off-campus speech.

The case was brought by a 14-year-old high school cheerleader, Brandi Levy. A freshman on the junior varsity cheerleading team, Brandi failed to win a spot as a varsity cheerleader for the following year, and she failed to get the position she wanted on the softball team too. So that weekend, frustrated and upset — and off campus — Brandi took a photo of herself and a friend flipping the bird to the camera. She then typed the words at the center of this dispute: "F*** school f*** softball f*** cheer f*** everything."

"I posted it on my Snapchat, so I was expecting everyone to see it," she says. Still, she didn't think she'd get in trouble. "It was only my friends that [had] seen it, and I didn't specifically target anyone."

But those "friends" numbered 250, and of course, her teammates on the cheer team saw it, including the daughter of the team coach, who showed the photo to her mother. Brandi was suspended from the team for the rest of the year. (P.S. She got on the varsity team the following year.)

But in the meantime, she and her parents challenged the suspension in court, contending that Pennsylvania's Mahanoy Area School District had no right to discipline Brandi for her off-campus speech. A federal appeals court agreed, ruling that the school could punish her only for speech on campus or at school-sponsored activities.

The Supreme Court's landmark decision on student speech dates back to the Vietnam War era. Five students, including 13-year-old Mary Beth Tinker, decided to protest the war by wearing black armbands to their school in Des Moines, Iowa.

The kids were suspended. The American Civil Liberties Union took their case to court, and in 1969 the Supreme Court ruled for the first time that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

The court said that to suspend the students, the school would have to "reasonably ... forecast" that the speech or expression would cause "substantial disruption of or material interference with school activities." The court said the school didn't have such a justification, even though one of the boys who wore the armband exchanged blows with another kid when physically attacked outside class.

Since then, the courts — and schools — have struggled to determine when it's OK to discipline kids for speech and when it's not. And the internet has magnified that problem exponentially.

In this case, lawyers for both sides agree that schools are well within their rights when they deal with targeted harassment and bullying. In fact, 47 states require schools to enforce anti-bullying policies. But Brandi Levy's case is the only one in which an appeals court has ruled categorically that a student's off-campus speech is not subject to school discipline.

So now the Supreme Court is being asked to establish the rules for disciplining student speech in the internet age. And that is no easy task.

The Mahanoy Area School District contends that in the modern world of social media and COVID-19 lockdowns, there is no practical difference between student speech that is disruptive at the school itself and speech outside the school, whether it's across the street from the school or online.

Supporting that position are national associations that represent school boards, administrators, superintendents and principals.

"When you're talking about online speech," says their lawyer, Gregory Garre, "it really doesn't matter where the student hits send on his or her iPhone or makes the post. Whether it's in the classroom or in a Starbucks across the street from the school, the impact of that post is the same."

But ACLU lawyer Witold Walczak says that this argument would give schools the right to curb student speech for all kinds of reasons — cultural, political or even religious.

"You're essentially taking the diminished free speech rights that students have in school and pushing them out to their entire lives. They would not have full First Amendment free speech rights anywhere. And that would also interfere with parents' ability and right to direct their children's upbringing," he says.

Garre counters that online speech is the equivalent of a school message board, except that online messages can go to many more students, causing far more disruption at the school.

"Schools aren't looking to pick fights. Schools aren't looking to police speech taking place at students' homes," he says. Plus, "no matter where the speech happens to originate, schools have a burden to show that it substantially disrupted and invades the rights of other students."

The ACLU's Walczak, representing Brandi Levy, says he has personally represented students in a half-dozen of these cases and never lost.

"We've been dealing with these issues for 20 years, and it's time for the court to provide clarity," he says.

Walczak also maintains that in the internet age, the Tinker standard — allowing schools to punish kids for speech that could reasonably be forecast to be disruptive — is just too fuzzy. "Schools could censor speech calling out racism, sexism, a culture of bullying inside the schools," he says. "That is just way too much power for schools to have at the expense of students' free speech rights.

Were it not for the f-bombs that Brandi Levy let loose on social media that fateful weekend, her speech likely would not have caused such a furor at the school. And she doesn't think she did anything wrong in the first place.

"That's just how 14-year-old teenagers talk, how everyone talked," she says.

Just how the Supreme Court will react is unclear. The conservative court majority is pretty purist about First Amendment rights: It has struck down laws meant to limit campaign spending, laws that make lying about one's military medals a crime and laws that make selling violent video games to kids a crime.

On the other hand, when it comes to kids, the court's conservatives tend to be more authoritarian; at least one member of the conservative majority, Justice Clarence Thomas, has said that in his view, student speech isn't protected by the First Amendment at all.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.