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administration and collided with other students’ rights.

The Supreme Court established in Tinker that public school officials are allowed to discipline students for their speech if that speech (1) substantially disrupts or could be forecasted to substantially disrupt school activities; or (2) collides with the rights of other students to “be secure and let alone.” 393 U.S. at 506. In determining the scope of disruption meriting school regulation under Tinker, lower courts have considered whether student expression materially

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interfered with the administration of school routine or whether it substantially threatened the psychological well-being of the students. See e.g., Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir. 2008); Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1178 (9th Cir. 2006), vacated as moot, 549 U.S. 1262 (2007).

1. Hart’s amplification of social media posts that advocated bombarding the school administration with calls and emails were reasonably forecasted to substantially disrupt school activities.

This Court’s First Amendment doctrine permits school administrators to regulate student speech that materially interferes with school operations through extensive class-time interruption or requiring extraordinary administrative action to restore order. Tinker, 393 U.S. at 513. And lower courts have repeatedly applied this standard. See e.g., Doninger, 527 F.3d at 51. Marshall County High School can point to a “well-founded expectation of disruption…based on past incidents arising out of similar speech [by which a restriction] may pass constitutional muster.” Saxe v. State College Area School Dist., 240 F.3d 200, 212 (3d Cir. 2001).

In Doninger, the Second Circuit upheld the disqualification of a student from class elections as a result of a lewd and misleading blog post in which she called school administrators “douchebags” and asked students to contact the administrators to “piss them off more.” Id. at 51. The court noted that the student used “at best misleading and at worst false” information regarding the cancellation of a school event, caused students to be “all riled up and … a sit-in threatened,” and forced school administrators to answer “a deluge of calls and e-mails.” Id. Reasoning that the student’s conduct materially frustrated the proper operation of school administration and undermined the values expected of class officers, the court approved the school regulation. Id. at 52. See also Taylor v. Roswell Independent School Dist., 713 F.3d 25, 39 (10th Cir. 2013) (upholding school regulation on distribution of anti-abortion materials by students where school

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officials reasonably forecasted substantial disruption based on some disruption that security guards had already witnessed); Boucher v. School Bd. of School Dist. of Greenfield, 134 F.3d 821, 827 (7th Cir. 1998) (holding that a school did not violate the First Amendment when it disciplined a student for distributing an article that gave tips for hacking into the school’s computers because the school had to call in outside experts to inspect the computer system).

On the other hand, where student speech does not—or cannot be reasonably forecasted to—cause significant disruption to school operation, regulation of that speech by a public school would violate the student’s First Amendment rights. See e.g., Sypniewski, 307 F.3d at 257. As the Supreme Court noted in Tinker, an “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” 393 U.S. at 508. Under this standard, lower courts have rejected schools’ disciplinary actions as a violation of the First Amendment where the students’ behavior caused little disruption and where school administrators could not have, with the facts on hand at the time, reasonably forecasted that the student’s speech would cause significant disruption. See e.g., J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915, 940 (3d Cir. 2011). For example, in J.S., the Third Circuit panel noted that J.S.’s speech caused only minor inconveniences to school officials, including two school administrators re-arranging their schedules, two teachers handling student gossip during class-time, and a few students congregating in the hallway. J.S. v. Blue Mountain Sch. Dist., 593 F.3d 286, 293-294 (3d Cir. 2010). But none of these disturbances amounted to a substantial disruption of the school environment. J.S., 650 F.3d at 940.

This case is distinguishable from J.S. as Hart’s speech did create a substantial disruption of the school environment. Hart’s public support for the Picagram posts materially interfered with the operations of Marshall County High School because the disruption it caused took up an

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extraordinary amount of the principal’s time as well as that of other school administrators. Unlike in J.S. where there were only minor disturbance to the school’s routine, here the school principal and other administrators were forced to field hundreds of angry calls and emails for days on end. This situation is much closer to the circumstances in Doninger, where the student’s blog forced administrators to answer an influx of questions from irate parents and students. Additionally, unlike in Sypniewski, where disciplined speech had historically been permitted and therefore could not reasonably have been expected to cause disruption, Hart’s speech came soon after another student’s recent social media post threatening gun violence at the school’s Valentine’s Day dance. See 307 F.3d at 254. Thus, both Hart and school officials could have reasonably forecasted that his expression of support for gun use in schools would cause substantial disruption to the school environment. Because Hart’s online advocacy both could have been expected to—and actually did—cause significant disruption to the high school’s operation, the school’s disciplinary action was permissible under this Court’s Tinker test.

2. Even if Hart’s speech could not have been reasonably forecasted to cause significant disruption, liking a social media post advocating for use of guns in schools collides with the rights of other students to “be secure” in the school environment.

Under Tinker’s second prong, schools need not tolerate student speech—like Hart’s advocating for the use of guns in schools—that collides with the rights of other students to be “secure and let alone.” 393 U.S. at 508. Although few circuits have addressed this prong in depth, courts have established that speech capable of psychologically injuring other students may be permissibly subject to regulation by schools. See e.g., Doe v. Valencia College, 903 F.3d 1220, 1230 (11th Cir. 2018) (holding that a school’s suspension of a student for sending harassing messages to another student did not violate the First Amendment because the messages infringed upon the second student’s “rights to be secure and to be let alone” by causing her emotional

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distress); Harper, 445 F.3d at 1178, 1179, vacated as moot, 549 U.S. 1262 (2007) (finding that “speech capable of causing psychological injury” may impinge on the rights of other students). For example, in Wynar, the Ninth Circuit held that violent speech directed towards other students could cause sufficient psychological harm under Tinker and upheld a school’s expulsion of a student who had sent instant messages from his home computer that threatened violence towards his classmates. 728 F.3d at 1071-1072. The court found that those threats of violence easily met the standard of infringing upon other students’ rights to feel secure. Id. However, student speech does not need to rise to the level of physical threats of violence to members of the school community to cause the kind of psychological distress necessary to regulate the speech under Tinker for colliding with the rights of others.

Other courts have upheld school regulations where student speech was offensive to other students in a context of high tensions over that type of speech. See Barr v. Lafon, 538 F.3d 554, 567-568 (6th Cir. 2008); West v. Derby Unified School District No. 260, 206 F.3d 1358, 1366 (10th Cir. 2000). In Barr v. Lafon, the Sixth Circuit upheld disciplinary action against a student who wore a clothing with the Confederate flag on it to school. 538 F.3d at 567. The court clarified that the second Tinker prong is not fulfilled merely when student speech offends other students but rather requires a context of heightened tension over the matter at issue in the student’s speech. Id. at 568. There, the school’s disciplinary action was warranted because the student wore the Confederate flag in a school context where racial tensions were high, involving a history of physical altercations between students. Id. Likewise, in West v. Derby Unified School District No. 260, the Tenth Circuit upheld a student’s suspension after the student drew a Confederate flag where the school had a history of racial tensions between Black and white students. 206 F.3d at 1362.

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Taken together, these cases demonstrate that Hart’s advocacy of guns in schools by “liking” a comment with the hashtag #armtheschools fulfills Tinker’s second prong. While the comment that Hart “liked” was not explicitly violent in nature, it did advocate for carrying a deadly weapon in the school environment. As such it could be reasonably construed by many to be violent in nature and therefore cause psychological harm to other students. But even if this Court finds that Hart’s speech was not violent in nature, it was clearly offensive to other students in a context of heightened tensions over gun violence in the school. In this way, Hart’s speech was similar to the students’ clothing in Barr and West. The clear and recent history of a threat of gun violence at a school dance should have alerted Hart to the fact that his speech would cause psychological harm to other students. And while courts have not ruled that actual harm must come from the speech in order for schools to regulate it, it is illuminating that students and parents did evidently suffer psychological harm because of his social media activity. Marshall County High School need not tolerate student speech that makes their students feel unsafe attending school, and therefore Hart’s speech was subject to discipline under the second Tinker prong.

CONCLUSION

For the foregoing reasons, the Petitioners respectfully request that this Court reinstate the district court’s granting of summary judgment for the Petitioners.