'Frightened To Death': Cheerleader Speech Case Gives Supreme Court Pause At issue is whether schools may punish students for speech that occurs online and off-campus but may affect school order. The case is the biggest test of student speech rights since 1969.

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'Frightened To Death': Cheerleader Speech Case Gives Supreme Court Pause

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AUDIE CORNISH, HOST:

At the U.S. Supreme Court today, it was "Mean Girls" meets the First Amendment. At issue - potentially the biggest test of students' speech rights in more than half a century. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The high court's landmark student speech case dates back to 1969 and the height of the Vietnam War. Mary Beth Tinker and four other students went to court after they were suspended for wearing black armbands to school to protest the war. The Supreme Court ruled for the first time that kids do have First Amendment free speech rights at school unless school officials reasonably forecast it will cause disruptions. The speech in today's case involves speech, well, considerably less serious.

The case was brought by a 14-year-old high school cheerleader named Brandi Levy, who failed to win a promotion from the junior varsity cheer team to the varsity.

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BRANDI LEVY: I was really upset and frustrated at everything.

TOTENBERG: So that weekend, she posted a photo of herself and a friend flipping the bird to the camera, along with a message that - and here I'm going to clean this up for the radio - said, F the school, F softball, F cheer, F everything. Brandi's post hit school like a little bomb. The school deemed the post disruptive to cheerleader morale and suspended her from the team for the rest of the year.

The ACLU took her case to court, claiming that her free speech rights have been violated. And today, the Supreme Court faced a question that did not exist in 1969. Can schools punish students for their online-but-off-campus speech? Justice Breyer got to the heart of the matter quickly, wondering whether online swearing off-campus should qualify for school punishment.

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STEPHEN BREYER: And if swearing off-campus did - I mean, my goodness, every school in the country would be doing nothing but punishing.

TOTENBERG: Justice Sotomayor.

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SONIA SOTOMAYOR: I'm told by my law clerks that a certain large percentage of the population - how much you curse is a badge of honor. Kids basically talk to their classmates. Most of their exchanges have to do with their perceptions of the authoritarian nature - their teachers and others.

TOTENBERG: Justice Kavanaugh, who coaches his daughter's sports teams, seemed to understand Brandi's frustration, acknowledging that even Michael Jordan had sore feelings 30 years after not making the varsity team in high school. As to this case, said Kavanaugh...

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BRETT KAVANAUGH: It didn't seem like the punishment was tailored to the offense. But how does that fit into the First Amendment doctrine, or does it fit in at all?

TOTENBERG: The argument showed just how hard that question is. Here, for instance, is Justice Kagan putting a series of hypotheticals to one of the lawyers supporting the school district. Which of these, she asks, are punishable school speech?

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ELENA KAGAN: Let's just assume that all of these caused substantial disruption, OK? Student emails his classmates the answer to the geometry homework every day after school.

UNIDENTIFIED LAWYER: School speech.

KAGAN: Student emails that they should refuse to do any work for English class until the teacher changes the syllabus to include more authors of color.

UNIDENTIFIED LAWYER: School speech.

TOTENBERG: In other words, he said, all of these messages sent from off-campus are punishable school speech. But the ACLU's David Cole, representing Brandi, said that once schools can discipline students for off-campus speech, that would dramatically expand the disciplinary reach of schools set out by the court in the Tinker case in 1969.

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DAVID COLE: Expanding Tinker would transform a limited exception into a 24/7 rule that would help end the First Amendment's bedrock principle and would require students to effectively carry the schoolhouse on their backs in terms of speech rights everywhere they go.

TOTENBERG: Still, the justices asked, what about cases of harassment? After all, some 47 states require enforcement of anti-bullying laws. Justice Kagan, for instance, posited an off-campus website set up by a high school boys to rank their female classmates' appearances and sexual availability. She and other justices probed repeatedly for a workable standard to adopt, a rule that would guide schools as to how to handle these tricky questions. The ACLU's Cole said students speech should be protected off-campus.

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COLE: Outside of school, the priority is not to give the school discretion to regulate kids' speech.

TOTENBERG: But the school's lawyer, Lisa Blatt, countered that that standard would be a nightmare. It would, she said, mean open season on schools and produce chaos in the lower courts.

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LISA BLATT: I guarantee you the courts are going to freak out.

TOTENBERG: In fact, from conservative to liberal, the justices seemed to be looking to do as little damage as possible. Said Justice Breyer...

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BREYER: I'm frightened to death of writing a standard.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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