The Docket: "Mean Girls" Meets The Supreme Court : The NPR Politics Podcast The Docket is a new ongoing series from The NPR Politics Podcast where we examine the major legal questions of our time. Where does a law come from, and how does it impact daily life?

This year the Supreme Court will decide whether or not a student cussing out her school on Snapchat is free speech. The decision could have wide-reaching implications for students across the country.

This episode: legal affairs correspondent Nina Totenberg and congressional correspondent Susan Davis.

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The Docket: "Mean Girls" Meets The Supreme Court

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(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

SUSAN DAVIS, HOST:

Hey there. It's the NPR POLITICS PODCAST. I'm Susan Davis. I cover Congress.

NINA TOTENBERG, HOST:

And I'm Nina Totenberg. I cover the Supreme Court.

DAVIS: And this is our brand-new series on the podcast we're calling The Docket, where we look at the big legal questions of the day and break down how they're shaping our world. Tomorrow, the Supreme Court hears arguments in a case regarding the First Amendment rights of students when it comes to what they can say on social media. So, Nina, why don't you lay out the facts and the basic question in the case?

TOTENBERG: Well, Sue, I call this case "Mean Girls" meet the Supreme Court.

DAVIS: (Laughter).

TOTENBERG: It was brought by a 14-year-old high school cheerleader named Brandi Levy in Mahanoy, Pa. She was a freshman on the junior varsity team, and she failed to get a spot on the varsity team for the following year, the same week that she didn't get a spot that she wanted on the softball team. So that weekend when she was off campus, she took a photo of herself and a friend flipping the bird to the camera.

(SOUNDBITE OF ARCHIVED RECORDING)

BRANDI LEVY: I was really upset and frustrated at everything, and I just made the post and posted it.

TOTENBERG: She typed the words at the center of this dispute - and here I'm cleaning it up for our audience...

DAVIS: Please do.

TOTENBERG: ...F the school. F softball. F cheer. F everything.

(SOUNDBITE OF ARCHIVED RECORDING)

LEVY: I posted it on my Snapchat, so I was expecting everyone to see it, but I didn't think that I was going to get in trouble because it was only my friends that seen it. And I didn't think I was going to get in trouble because I didn't specifically target anyone or anything.

TOTENBERG: Now, her friends on Snapchat numbered about 250. And, of course, her cheerleader teammates saw it, including the daughter of the cheerleading team coach, who showed the photo to her mother. Brandi was suspended from the cheerleading team for 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, saying that the school had no right to discipline her for off-campus speech.

(SOUNDBITE OF ARCHIVED RECORDING)

LEVY: I feel that it's important because I think that schools shouldn't be able to punish students for what they say off campus as long as it's not, like, harassing, threatening, bullying.

TOTENBERG: A federal appeals court agreed, ruling that the school could only suspend her for a speech on campus or at school activities.

DAVIS: Now, when I was a high school student, I remember learning about free speech cases before the Supreme Court when it came to students. So this is hardly the first test of what students can say, right?

TOTENBERG: Correct. The landmark case goes back to the Vietnam War era.

(SOUNDBITE OF SONG, "I-FEEL-LIKE-I'M-FIXIN'-TO-DIE RAG (TAKE 1)")

COUNTRY JOE AND THE FISH: (Singing) One, two, three. What are we fighting for? Don't ask me, I don't give a damn. Next stop is Vietnam...

MARY BETH TINKER: By 1965, when the Vietnam War was building up, there had been about 1,000 U.S. soldiers killed that Christmas.

TOTENBERG: Mary Beth Tinker was 13 years old in 1965, and TV broadcasts, especially Walter Cronkite, had a profound impact on her.

(SOUNDBITE OF ARCHIVED RECORDING)

TINKER: Every night on the news, there would be a body count by Walter Cronkite.

(SOUNDBITE OF ARCHIVED RECORDING)

WALTER CRONKITE: August 3, 1965...

(SOUNDBITE OF ARCHIVED RECORDING)

TINKER: And it was very upsetting for us kids.

TOTENBERG: Five students, including Mary Beth Tinker, decided to protest the war by wearing black armbands to their school in Des Moines, Iowa, and they were suspended.

(SOUNDBITE OF ARCHIVED RECORDING)

TINKER: I was a very shy girl, and so I wasn't some rebel protester, but I really believed in the messages that we had learned in church, which is that peace and love were very important. And so when some of the older kids started talking about speaking up about the war and the images, the horrible images that we were seeing on TV of the war, I thought maybe I should try to speak up, too.

TOTENBERG: The ACLU took the case to court. And in 1969, the Supreme Court ruled for the first time that students, quote, "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," close quote.

(SOUNDBITE OF ARCHIVED RECORDING)

TINKER: I was so happy and surprised because I really didn't think that, you know, a court of judges, very important people would say that kids have rights. So my message for young people is that it's a good way of life to speak up, to stand up for a better world.

TOTENBERG: The court said that in order to suspend the students, the school would have to reasonably forecast that the speech or expression would cause substantial disruption or material interference with school activities.

DAVIS: So now we entered the digital age of the Internet and social media and cyber bullying and schools are trying to walk this line between what is protected by the decision of the court in that Tinker case and what is not. And the courts haven't been very clear on this line, have they, Nina?

TOTENBERG: Yes and no. Since the Tinker case, courts and schools have really struggled to determine when it's OK to discipline kids for speech and when it's not. And the Internet, of course, has magnified that problem exponentially. In this case, both sides agree that schools are within their rights when they deal with, say, harassment and bullying and threats, those kinds of things. But Brandi Levy's case is the only one, the only one in which an appeals court has ruled categorically that a student's off-campus speech is not subject to school discipline, even if the speech creates a substantial disruption on campus. So ultimately, in this case, the Supreme Court is being asked to clarify the rules for disciplining student speech in the Internet age. And that, Sue, is no easy task.

DAVIS: All right. Let's take a quick break. And when we get back, we're going to be joined by a special guest, a constitutional scholar who was at the Supreme Court during the Tinker case.

(SOUNDBITE OF MUSIC)

DAVIS: And we're back. And we're looking both backward and forward at this question of free speech rights for students and how they might be changing in the digital era. And to do that, Nina, you have brought in a very special guest, so I will let you do the honor of introducing him.

TOTENBERG: Yes, indeed, I have. He is constitutional scholar, former Solicitor General Walter Dellinger.

Glad to have you here, Walter.

WALTER DELLINGER: It's good to be here on this podcast.

DAVIS: We're so happy to have you.

TOTENBERG: And, Walter, the reason I asked you to join us is that you were there in 1969. The year that the Tinker case was decided, you clerked for the foremost and one might say the most First Amendment absolutist Justice Hugo Black, except that he was one of the two dissenters in this case.

DELLINGER: That's right, Nina. But that's not inconsistent in the following sense. If you believe that speech is absolutely protected, you must necessarily have a narrow definition of what constitutes speech. So once you spill over into symbolic speech, like for Black that would be flag burning, draft card burning. For him, if that was speech, it was absolute. And you could burn down the White House, and it would be protected. So he wanted to exclude things like symbolic speech from the purview of what constituted speech. And - but that was not the only reason that, you know, this was a seven to two decision upholding the right of Mary Beth Tinker to wear her black armband. Justices Black and Harlan dissenting, and perhaps the alignment surprised some people.

TOTENBERG: Yes, (laughter) I think it probably did. You know, most people think that judges vote there - when it's really important and controversial, they vote with the side that they agree with on the controversy. But that wasn't the case here.

DELLINGER: No, not at all. The opinion in favor of our anti-war protester was written by Justice Fortas, who was essentially a member of President Johnson's war cabinet, and inappropriately so in the opinion of almost everybody that knew about it. He had a direct phone line to the White House in his chambers in addition to his other telephone. It was very much involved in the war. He'd gotten a lot of criticism because he had a thought flag burning was not protected speech. But on the other hand, Justice Black, who dissented, was a vociferous opponent of the war, not in public, but in private. He thought World War II is the only good war the United States has ever fought.

TOTENBERG: (Laughter) So they essentially flipped positions from their heart. And their legal positions became the opposite of their heart.

DAVIS: Walter, can I ask you if you think that the type of speech matters? Because the distinction to me is that when we talk about the Tinker case, it was about political speech, which seems different to me than sort of the angry speech of a teenager on a social media platform. They just seem different to me in how you would judge them from potentially a legal standpoint.

DELLINGER: Well, I think what is - and that's a very good insight. And there should be substantial protection for students who are engaging in political speech. When you're talking about school matters, then it becomes a matter of school discipline and regular, you know, regular order or in this particular case, team cohesion. And perhaps not as thoroughly protected.

Now, I think what's important to keep in mind about the case is that Tinker is now seen as a fairly conservative rendering of the First Amendment. It's true that, you know, the school board lost its argument that you could simply do whatever you want to it. The students had no speech, free speech rights. But school boards are now clinging to Tinker because it does allow them to discipline students for anything that is that they reasonably believed to be disruptive of the of the school. And free speech advocates are arguing that for what they call off-campus speech should be given greater First Amendment protections in that.

DAVIS: I'd love to have you both weigh in on the makeup of the court today, because we know from other free speech cases that Justice Thomas has indicated he'd like to overturn Tinker, that he thinks kids don't have free speech rights at school. But what about the other justices or who are the justices in this case that we should be watching closely for the questions they ask or how they may vote?

TOTENBERG: You know, to me, this is really the interesting question, because this court is a very absolutist court in terms of the First Amendment. It's struck down all kinds of laws enacted by Congress and state legislatures regulating campaign contributions, regulating whether you can be punished under the criminal law for lying about your medals, your military medals and all kinds of things. But it's also, I suspect, a pretty authoritarian court when it comes to kids. And I'm curious what Walter thinks.

DELLINGER: Nina, I think you're absolutely right that the court, a number of the justices are, in a sense, cross pressured on this. There are justices that have an authoritarian instinct, a regular order instinct, but they also have been free speech absolutists. Now, this court has been very strong on the First Amendment rights of corporations. And so the question is going to be, the children have as much First Amendment rights as corporations do. And maybe what a protesting student ought to do is incorporate ourselves and this and before this court, I think she might have a better chance.

DAVIS: In the hierarchy of Supreme Court free speech cases, how do you all see this one? Because I would think that if the court were to rule that cheerleaders like Brandi can't say F cheer on their social media, that could have a pretty profound impact on how schools discipline kids and their use of social media. And most kids are on social media.

DELLINGER: I think that's right. If schools could discipline students for what they say on social media, that's not narrowly penned as it could be in this case, to the actual functioning of an activity like the basketball team, that's really a radical authority for schools to regulate the speech of their students. I think it would be a substantial erosion of the notion that students have free speech rights.

TOTENBERG: You know, the ACLU argues on her behalf that it would actually even limit parental rights because it says school, you can go in and you can discipline Sue Davis, who's 13, who said something about religion that you, the school think was disruptive to school order. And that's their point. You can't give schools that much authority. That's their argument anyway.

And the counter argument is, come on, you're in school. You're - you said F cheer, F everything, F the school, F softball. You knew and you flipped the bird in a photograph. You knew perfectly well what you were doing and that is not acceptable behavior. In terms of at least this extracurricular activity, you weren't barred from all of extracurricular activities. You weren't barred, you weren't told you can't come to school for several days, but you lost something that was important to you.

DELLINGER: Well, Susan makes - raised a very good point, because it would be to me a very different case if the student said F the war in Afghanistan and was disciplined by losing a right to be on the cheerleading squad instead of what we actually have with this case is F cheer. And they said, well, if that's your attitude toward the cheerleading squad, we don't want you on the squad. Now, I think there are going to be justices like Elena Kagan that, unlike the courts below, really focus on the aspect of what happened. And it was the coach that relieved her from her position on the team because of her expressed attitude toward the team, and that sometimes it will be wise for a court to hold back and decide this on a case with facts that more clearly present the broader issue.

DAVIS: Walter, thank you so much for coming on the podcast. We really appreciate it.

TOTENBERG: Thank you, Walter.

DELLINGER: You're welcome. I didn't say when you - well, I was going to say, well, I'm so glad I participated this because, you know, there are not enough podcasts. And I miss them.

(LAUGHTER)

DAVIS: And this has been our first of an ongoing new series on the podcast called The Docket, where we're going to break down the big legal questions of the day. And we'll be back late tomorrow night following President Biden's first address to Congress.

I'm Susan Davis. I cover Congress.

TOTENBERG: I'm Nina Totenberg. I cover the Supreme Court.

DAVIS: And thank you for listening to the NPR POLITICS PODCAST.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

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