No. 2020-08-20

__________________

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 2020

__________________

ANDREW FLIGHT, SUPERINTENDENT OF

WYTHE DEPARTMENT OF EDUCATION,

MARSHALL COUNTY SCHOOL BOARD, AND

PHYLLIS BEARD, PRINCIPAL OF

MARSHALL COUNTY HIGH SCHOOL,

Petitioners,

v.

JACK HART,

Respondent.

__________________

On Writ of Certiorari to the

United States Court of Appeals

for the Fourteenth Circuit

__________________

BRIEF FOR PETITIONERS

__________________

Team No. 2140

ATTORNEYS FOR PETITIONERS

i

QUESTIONS PRESENTED

I. Does the Second Amendment allow a state to prohibit the display of firearms in a virtual

classroom to protect students from the psychological effects of gun violence?

II. Does the First Amendment allow a school district to punish students for using online speech

to incite others to harass school administrators and otherwise cause disruptions in the school

setting?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................................................................................ i

TABLE OF AUTHORITIES .......................................................................................................... iv

OPINIONS BELOW ........................................................................................................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........................................1

STATEMENT OF THE CASE.........................................................................................................2

SUMMARY OF THE ARGUMENT ...............................................................................................5

ARGUMENT AND AUTHORITIES ..............................................................................................7

STANDARD OF REVIEW ............................................................................................................7

I. THE GFSA, WHICH REGULATES STUDENTS’ USE OF FIREARMS DURING

VIRTUAL CLASSES, DOES NOT VIOLATE THE SECOND AMENDMENT ................................7

A. The GFSA Satisfies the Intermediate Scrutiny Applied to “Sensitive

Places”.......................................................................................................................10

1. A classroom, even online and at home, is a “sensitive place” under

Heller I, where the school can limit the Second Amendment ............................ 11

a. Classrooms and schools’ special purpose as marketplaces of ideas

establish them as a “sensitive places”..........................................................12

b. The guidance from Tinker, Fraser, and Morse supports regulating

a student’s actions at home that disrupts virtual school events....................13

2. The GFSA satisfies intermediate scrutiny ..........................................................18

a. Intermediate scrutiny applies because the GFSA does not

substantially burden the Second Amendment’s core area of

protection, escaping strict scrutiny ...............................................................18

b. The GFSA satisfies intermediate scrutiny because it is substantially

related to an important governmental interest in keeping

classrooms, even virtual, safe .......................................................................20

B. Alternatively, the GFSA Satisfies Strict Scrutiny .....................................................21

iii

II. THE SCHOOL’S SOCIAL MEDIA POLICY, WHICH PROHIBITS ONLINE CONDUCT

CAUSING “DISORDER OR DISTURBANCES” IN A SCHOOL SETTING, DOES NOT

VIOLATE THE FIRST AMENDMENT ...................................................................................23

A. School Officials Reasonably Forecasted That Hart’s Online Activity

Would Cause a Substantial Disruption .....................................................................27

1. The Court should adopt the “reasonable foreseeability” standard and

permit public schools to discipline students for Internet speech that

could reasonably be expected to reach the school environment and

cause a disruption within it .................................................................................28

2. Respondent’s online activity satisfies the reasonable foreseeability

standard ...............................................................................................................31

B. A Sufficient “Nexus” Connected Hart’s Off-Campus Speech with the

Disruption at the School............................................................................................32

1. The Court can alternatively adopt the “sufficient nexus” standard

analysis and permit public schools to discipline students for Internet

speech that bears a sufficient causal nexus to disruptions that occur at

the school ............................................................................................................33

2. Based on a totality of the circumstances, there was sufficient evidence

to link Respondent’s call to action to the disruption that occurred at the

school ..................................................................................................................35

C. Alternatively, True Threats by a Student Are Not Protected by the First

Amendment ...............................................................................................................36

1. This Court should adopt the objective approach used by the majority

of circuit courts to determine the existence of a true threat ................................38

2. Under the objective approach, Hart’s calls to action were a “true

threat” because he knowingly communicated the call in a way that

would lead to a serious risk of interference at the school ...................................40

CONCLUSION ..............................................................................................................................40

APPENDICES:

APPENDIX “A”: Marshall County High School Social Media Policy ....................... A-1

iv

TABLE OF AUTHORITIES

Page(s)

UNITED STATES SUPREME COURT CASES:

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett,

564 U.S. 721 (2011) ...........................................................................................................21

Ashcroft v. ACLU,

542 U.S. 656 (2004) ...........................................................................................................22

Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26

v. Pico,

457 U.S. 853 (1982) ...........................................................................................................24

Bd. of Trs. of State Univ. of N.Y. v. Fox,

492 U.S. 480 (1989) ...........................................................................................................21

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

478 U.S. 675 (1986) ...................................................................................12, 15, 16, 24, 33

Bose Corp. v. Consumers Union,

466 U.S. 485 (1984) .............................................................................................................7

City of Ladue v. Gilleo,

512 U.S. 43 (1994) .............................................................................................................29

Cohen v. California,

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

District of Columbia v. Heller (Heller I),

554 U.S. 570 (2008) ................................................................................................... passim

Elonis v. United States,

135 S. Ct. 2001 (2015) .......................................................................................................38

Eu v. S.F. Cnty. Democratic Cent. Comm.,

489 U.S. 214 (1989) ...........................................................................................................22

Globe Newspaper Co. v. Superior Ct.,

457 U.S. 596 (1982) ...........................................................................................................21

Hazelwood Sch. Dist. v. Kuhlmeier,

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

v

Keyishian v. Bd. of Regents of Univ. of State of N.Y.,

385 U.S. 589 (1967) ...........................................................................................................12

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) ...........................................................................................................21

McDonald v. City of Chicago,

561 U.S. 742 (2009) .......................................................................................................8, 10

Morse v. Frederick,

551 U.S. 393 (2007) .....................................................................................................16, 17

New Jersey v. T.L.O.,

469 U.S. 325 (1985) ...........................................................................................................15

New York v. Feber,

458 U.S. 747 (1982) .....................................................................................................21, 22

Schenck v. United States,

249 U.S. 47 (1919) .............................................................................................................30

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

393 U.S. 503 (1969) .............................................................................12, 14, 15, 16, 24, 27

Turner Broad. Sys. v. FCC,

512 U.S. 622 (1994) .....................................................................................................20, 21

United States v. Playboy Entm’t Grp.,

529 U.S. 803 (2000) ...........................................................................................................22

United States v. Winstar Corp.,

518 U.S. 839 (1996) .............................................................................................................7

Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646 (1995) ...........................................................................................................14

Virginia v. Black,

538 U.S. 343 (2003) ...........................................................................................................36

Ward v. Rock Against Racism,

491 U.S. 781 (1989) .....................................................................................................20, 21

Watts v. United States,

394 U.S. 705 (1969) (per curiam) ......................................................................................37

vi

Williams-Yulee v. Fla. Bar,

575 U.S. 433 (2015) ...........................................................................................................23

UNITED STATES CIRCUIT COURT CASES:

Bland v. Roberts,

730 F.3d 368 (4th Cir. 2013) .............................................................................................29

Bonidy v. U.S. Postal Serv.,

790 F.3d 1121 (10th Cir. 2015) ..................................................................................10, 11

Boucher v. Sch. Bd. of Sch. Dist. of Greenfield,

134 F.3d 821 (7th Cir. 1998) ......................................................................................25, 34

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

647 F.3d 754 (8th Cir. 2011) .......................................................................................25, 28

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

306 F.3d 616 (8th Cir. 2002) .......................................................................................37, 38

Doninger v. Niehoff,

527 F.3d 41 (2d Cir. 2008).....................................................................................28, 33, 34

Drake v. Filko,

724 F.3d 426 (3d Cir. 2013)...........................................................................................8, 11

Ezell v. City of Chicago,

651 F.3d 684 (7th Cir. 2011) ...........................................................................................8, 9

GeorgiaCarry.Org, Inc. v. Georgia,

687 F.3d 1244 (11th Cir. 2012) .........................................................................................10

Gould v. Morgan,

907 F.3d 659 (1st Cir. 2018) ................................................................................................8

Heller v. District of Columbia (Heller II),

670 F.3d 1244 (D.C. Cir. 2011) .........................................................................................10

Jackson v. City & County of San Francisco,

746 F.3d 953 (9th Cir. 2014) ...............................................................................................9

J.S. ex rel. Snyder v. Blue Mountain Sch. Dist.,

650 F.3d 915 (3d Cir. 2011) (en banc) ......................................................25, 27, 33, 34, 36

vii

Kachalsky v. County of Westchester,

701 F.3d 81 (2d Cir. 2012).............................................................................................8, 11

Karp v. Becken,

477 F.2d 171 (9th Cir. 1973) .......................................................................................27, 28

Kowalski v. Berkeley Cmty. Schs.,

652 F.3d 565 (4th Cir. 2011) .....................................................................25, 26, 30, 32, 33

LaVine v. Blaine Sch. Dist.,

257 F.3d 981 (9th Cir. 2001) .................................................................................25, 27, 34

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

650 F.3d 205 (3d Cir. 2011)...............................................................................................30

Lovell v. Poway Unified Sch. Dist.,

90 F.3d 367 (9th Cir. 1996) ...............................................................................................38

Lowery v. Euverard,

497 F.3d 584 (6th Cir. 2007) .............................................................................................32

Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol,

Tobacco, Firearms & Explosives,

700 F.3d 185 (5th Cir. 2012) .........................................................................................8, 11

Peterson v. Martinez,

707 F.3d 1197 (10th Cir. 2013) ...........................................................................................8

Ponce v. Socorro Indep. Sch. Dist.,

508 F.3d 765 (5th Cir. 2007) .............................................................................................39

Porter v. Ascension Par. Sch. Bd.,

393 F.3d 608 (5th Cir. 2004) ...........................................................................29, 34, 37, 38

Schrader v. Holder,

704 F.3d 980 (D.C. Cir. 2013) ...................................................................................... 8, 11

S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist.,

696 F.3d 771 (8th Cir. 2012) .......................................................................................26, 28

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

607 F.2d 1043 (2d Cir. 1979).............................................................................................15

Tyler v. Hillsdale Cnty. Sheriff’s Dep’t,

837 F.3d 678 (6th Cir. 2016) (en banc) .............................................................................11

viii

United States v. Adams,

914 F.3d 602 (8th Cir. 2019) ...............................................................................................8

United States v. Cassel,

408 F.3d 622 (9th Cir. 2005) .............................................................................................38

United States v. Chester,

628 F.3d 673 (4th Cir. 2010) .........................................................................................9, 13

United States v. Chovan,

735 F.3d 1127 (9th Cir. 2013) .............................................................................8, 9, 11, 18

United States v. Class,

930 F.3d 460 (D.C. Cir. 2019) .....................................................................................10, 11

United States v. DeAndino,

958 F.2d 146 (6th Cir. 1992) .............................................................................................37

United States v. Dinwiddie,

76 F.3d 913 (8th Cir. 1996) ...............................................................................................38

United States v. Focia,

869 F.3d 1269 (11th Cir. 2017) ...........................................................................................8

United States v. Greeno,

679 F.3d 510 (6th Cir. 2012) ...............................................................................................8

United States v. Magleby,

420 F.3d 1136 (10th Cir. 2005) .........................................................................................38

United States v. Malik,

16 F.3d 45 (2d Cir. 1994)...................................................................................................37

United States v. Marzzarella,

614 F.3d 85 (3d Cir. 2010).....................................................................9, 13, 19, 20, 22, 23

United States v. Masciandaro,

638 F.3d 458 (4th Cir. 2011) .......................................................................................10, 11

United States v. Orozco-Santillan,

903 F.2d 1262 (9th Cir. 1990) ...........................................................................................37

United States v. Schneider,

910 F.2d 1569 (7th Cir. 1990) ...........................................................................................37

ix

United States v. Staten,

666 F.3d 154, 159 (4th Cir. 2011) .................................................................................8, 11

United States v. Turner,

720 F.3d 411 (2d Cir. 2013).........................................................................................38, 39

United States v. Welch,

745 F.2d 614, 619 (10th Cir. 1984) ...................................................................................37

Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist.,

494 F.3d 34 (2d Cir. 2007)...............................................................................25, 28, 33, 34

Wynar ex rel. Wynar v. Douglas Cnty. Sch. Dist.,

728 F.3d 1062 (9th Cir. 2013) .....................................................................................26, 27

UNITED STATES DISTRICT COURT CASES:

Killion v. Franklin Reg’l Dist.,

136 F. Supp. 2d 446 (W.D. Pa. 2001) ................................................................................34

Morris v. U.S. Army Corps of Eng’rs,

60 F. Supp. 3d 1120 (D. Idaho 2014) ................................................................................10

Shen v. Albany Unified Sch. Dist.,

No. 3:17-CV-02478-JD, 2017 WL 5890089

(N.D. Cal. Nov. 29, 2017) ............................................................................................29, 30

STATE SUPREME COURT:

DiGiacinto v. Rector & Visitors of George Mason Univ.,

704 S.E.2d 365 (Va. 2011)...........................................................................................10, 11

J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist.,

807 A.2d 847 (Pa. 2002) ..............................................................................................28, 29

People v. Chairez,

104 N.E.3d 1158 (Ill. 2018) ...............................................................................................10

x

CONSTITUTIONAL PROVISIONS:

U.S. Const. amend. I ..................................................................................................................1, 24

U.S. Const. amend. II ...................................................................................................................1, 7

STATUTORY PROVISIONS:

42 U.S.C. § 1983 ..............................................................................................................................4

Cal. Penal Code § 415 (West 1975) ...............................................................................................15

BOOKS:

Charles A. Beard & Mary R. Beard,

New Basic History of the United States (1968) .................................................................12

James C. Hanks,

School Bullying: How Long Is the Arm of the Law?

(2d ed. 2015) ......................................................................................................................25

Paul Horwitz,

First Amendment Institutions (2013) .................................................................................12

LEGAL PERIODICALS:

Watt Lesley Black, Jr. Ph.D.,

Omnipresent Student Speech and the Schoolhouse

Gate: Interpreting Tinker in the Digital Age,

59 St. Louis U. L.J. 531 (2015)..........................................................................................25

Joseph Blocher,

Institutions in the Marketplace of Ideas,

57 Duke L.J. 821 (2008) ....................................................................................................12

xi

Joseph Blocher,

The Right Not to Keep or Bear Arms,

64 Stan. L. Rev. 1 (2012) ...................................................................................................13

David L. Hudson, Jr.,

Unsettled Questions in Student Speech Law,

22 U. Pa. J. Const. L. 1113 (2020) .....................................................................................26

Michael Jimenez,

Young v. Hawaii: A Dangerous Precedent,

53 Loy. L.A. L. Rev. 827 (2020) .........................................................................................9

Philip Lee,

Expanding the Schoolhouse Gate: Public Schools

(K-12) and the Regulation of Cyberbullying,

2016 Utah L. Rev. 831 (2016) ...........................................................................................35

Gregory P. Magarian,

Speaking Truth to Firepower: How the First

Amendment Destabilizes the Second,

91 Tex. L. Rev. 49 (2012) ..................................................................................................14

Darrell A.H. Miller,

Constitutional Conflict and Sensitive Places,

28 Wm. & Mary Bill Rts. J. 459 (2019) ......................................................................11, 12

Elizabeth A. Shaver,

Denying Certiorari in Bell v. Itawamba County

School Board: A Missed Opportunity to Clarify

Students’ First Amendment Rights in the

Digital Age,

82 Brook. L. Rev. 1539 (2017) ..........................................................................................34

Bryan Starett,

Tinker’s Facebook Profile: A New Test for

Protecting Student Cyber Speech,

14 Va. J. L. & Tech. 212 (2009) ........................................................................................24

Mark Tushnet,

Heller and the Perils of Compromise,

13 Lewis & Clark L. Rev. 419 (2009) ...............................................................................13

William Van Alstyne,

The Second Amendment and the Personal Right

to Arms,

43 Duke L.J. 1236 (1994) ..................................................................................................13

xii

Eugene Volokh,

Implementing the Right to Keep and Bear Arms for

Self-Defense: An Analytical Framework and a

Research Agenda,

56 UCLA L. Rev. 1443 (2009) ..........................................................................................13

OTHER SOURCES:

Maya Rossin-Slater et al.,

Local Exposure to School Shooting and Youth

Antidepressant Use

(Stan. Inst. for Econ. Pol’y Rsch., Working Paper

No. 19-036, 2019) ..............................................................................................................17

1

OPINIONS BELOW

The opinion of the United States District Court for the District of Wythe is reported and

appears on pages 1–13 of the record. The opinion of the United States Court of Appeals for the

Fourteenth Circuit is also reported and appears on pages 14–20 of the record.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the First and Second Amendments to the United States Constitution.

Additionally, this case involves claims based on the Wythe Gun-Free School Act (“the GFSA”).

The provisions are as follows:

First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const.

amend. I.

Second Amendment:

“A well regulated Militia, being necessary to the security of a free State, the right of the

people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.

Wythe Gun-Free School Act:

There is zero tolerance for a student’s use of firearms: this includes firearms brought

onto school property, a school bus, or any location where any activity sponsored by

the school is presently being conducted including any virtual format. While classes

are conducted online, students may not have any weapons visible on camera.

Disciplinary action includes immediate suspension and potential expulsion.

R. at 4.

2

STATEMENT OF THE CASE

I. STATEMENT OF FACTS

Marshall County High School. Marshall County High School is a public school in

Marshall County School District. R. at 2. Because of a global health pandemic, Marshall County

High School students were required to attend classes online through a platform called Viid. R. at

2. All students were provided with laptops from the school if needed. R. at 2. To maintain

similarity to the classroom, students were required to have their cameras on and microphones

muted unless called on. R. at 2. Because of this online format, the State updated the State’s Gun-

Free School Act (“the GFSA”), which prohibits the possession of firearms on campus, to extend

to prohibit the use and visibility of weapons during online school. R. at 4.

Jack Hart. Jack Hart (“Hart”) is an eighteen-year-old senior at Marshall High School. R. at

2. He was on track to become the valedictorian of his class, but this honor was put in jeopardy on

March 31, 2020 when Hart and his father held and cleaned guns while Hart’s class watched on

Viid. R. at 3. During an Advanced Placement Literature pop quiz, Hart’s father appeared in the

background of Hart’s camera inspecting and cleaning a gun in their living room. R. at 2–3. After

the quiz, Hart saw his father, stood up, grabbed his own shotgun, and began to inspect the

shotgun on camera. R. at 3. For nearly thirty minutes, Hart and his father displayed their guns on

camera while other students were taking a pop quiz. R. at 3. At one point, Hart’s father was seen

looking down the barrel of the gun, then pointing it at a picture on the wall. R. at 3. During this

time, students and Hart’s teacher messaged Hart in the Viid chat box concerned why Hart and his

father were revealing guns on camera. R. at 3. Hart’s teacher, after messaging Hart multiple

times, called the police. R. at 3. Because of the shock and concern, Hart’s teacher ended the class

early. R. at 3. That afternoon, Hart was informed of his three-day suspension from school for

3

violating the GFSA. R. at 4. Shortly after, Hart’s father contacted a journalist and the next

morning The Marshall News ran a story titled “Glimpse of Gun on Viid During Virtual Class

Leads to Police Investigation and Student’s Suspension.” R. at 4. Marshall County High School’s

statement in the article revealed the reasoning behind many of the students’ fears and concerns

when Hart revealed a gun during class. R. at 4. Less than two months before, a former student

attempted on-campus shooting by a former student. R. at 4. The student posted on Instagram that

he planned to infiltrate the school’s Valentine’s dance and shoot his ex-girlfriend and her date—

two Marshall County High School Students. R. at 4. Police prevented the shooting, but the staff

and students were seriously impacted from this event. R. at 4.

Social Media Postings. Following Hart’s suspension, a student noticed Hart “liking”

postings on social media criticizing the school’s response and encouraging individuals to harass

the school.1 R. at 5. Specifically, on a Picagram social media group called “Second Amendment

Revolution,” Hart liked a post stating “F--- this school,” another encouraging members to “[c]all,

email, [and] blast this school for trying to ignore Second Amendment!!!” with a photo of the

school’s contact information, and another comment reading: “If students and teachers could be

f--ing armed, we wouldn’t have a mass shooting in schools problem to begin with.

#armtheschools.” R. at 5. Marshall High School received hundreds of emails, daily, criticizing

the school’s response to Hart holding a gun while in class. R. at 6. Because Marshall High

School’s Social Media Policy prohibits students from using social media to target the school—

including the use of foul and threatening language aimed at the school—on April 8, 2020, Hart’s

honor as potential valedictorian and ability to deliver a graduation speech was revoked. R. at 5.

1 Picagram is a social media picture sharing app where users can interact with photos and other

users by “liking” images and comments. These “likes” are visible to anyone who can see the

image or comment.

4

II. NATURE OF THE PROCEEDINGS

The District Court. In response to his suspension and stripping of valedictorian

consideration and revoking of ability to deliver a graduation speech, Hart filed a § 1983 claim

challenging the constitutionality of the GFSA and the school’s Social Media Policy in the United

States District Court for the District of Wythe. R. at 6. Hart claimed the GFSA violates his

Second Amendment right to bear arms in his home. R. at 6. Hart further claimed the Defendants

violated his rights to free speech under the First Amendment by suspending him for speech he

made online regarding the school. R. at 6. Defendants moved for summary judgment on both of

Plaintiff’s claims. R. at 1.

The district court granted summary judgment, holding that the GFSA was constitutional. R.

at 13. The district court applied intermediate scrutiny to the Second Amendment, stating that

“today’s homes hav[ing] been transformed into a school environment . . . [may] constitute

sensitive locations requiring only intermediate scrutiny.” R. at 9. The district court held the

GFSA satisfies intermediate scrutiny, finding its prohibitions against firearms in school-

sponsored virtual classes substantially related to the important government interest of protecting

minors. R. at 9. Additionally, the district court held that the school’s Social Media Policy was

constitutional. R. at 13. The district court found Hart’s speech “materially and substantially

disrupt[ed] the work and discipline of the school” and his expressive conduct had a “sufficient

nexus to the school.” R. at 12. Dismissing Hart’s arguments against conduct away from campus

falling within the school’s purview, the district court found that his online speech could

reasonably be expected to reach the school and cause a substantial disruption. R. at 13.

The Court of Appeals. Hart appealed, arguing that the district court erred in granting

summary judgment on both causes of action. R. at 14–15. The court of appeals held that

5

intermediate scrutiny was the proper standard to review the Second Amendment challenge and

that the GFSA survived that level of scrutiny. R. at 9. The court of appeals also held that the

school media policy complied with the First Amendment and allowed for regulation of off-

campus conduct that encouraged others to harass school administrators. R. at 18–19. The court of

appeals vacated the district court’s granting of summary judgment and remanded for further

proceedings. Id. Judge Pinckney filed a separate opinion, dissenting regarding the First

Amendment challenge. Id. Judge Pickney would have upheld the district court’s decision

analyzing the facts under the true threat doctrine. R. at 20.

SUMMARY OF THE ARGUMENT

I.

The Fourteenth Circuit erred in finding a Second Amendment violation. The GFSA is a

lawful regulation of Second Amendment rights in “sensitive places” as described in Heller.

Classrooms and Schools’ special purpose as marketplace for ideas require special protection to

ensure an educational institution can fulfill its core mission of preparing “pupils for citizenship in

the Republic.” To do so, school authorities must be given deference when regulating conduct

which would be substantially disruptive to the learning environment or conduct that would harm

other students present in the classroom. The virtual classroom is just as much of a “sensitive

place” as the brick-and-mortar school grounds as a school’s core function is performed both in

the real and virtual settings. This “sensitive place” only extends as far as the camera can see and

does not extend to the entirety of the house.

As a regulation of the Second Amendment in a “sensitive place,” the GFSA is subjected to

intermediate scrutiny. The GFSA does not substantially burden the Second Amendment’s core

area of protection as it does not outlaw possession of firearms as a whole, merely from being

6

visible on camera. This de minimis burden and minimal encroachment into protection of the

hearth and home removes the GFSA from any requirement of a heightened level of scrutiny.

Further, even if strict scrutiny is applied, the GFSA passes constitutional muster as there is a

compelling governmental interest in protecting minors from harm, even psychological, and the

GFSA is narrowly tailored to further said interest, only limiting possession of firearms in places

that might be visible to other students.

II.

The Fourteenth Circuit also erred in finding a First Amendment violation. Marshall County

High School’s policy, prohibiting social media activity which would cause a disruption in the

classroom, is a valid regulation under the First Amendment. Hart’s social media activity

encouraged and incited individuals to harass the school on his behalf. Because Hart’s online

activity was reasonably foreseeable to cause a substantial disruption to the school environment,

by affecting school staff and students, it was appropriate to discipline Hart. Additionally, the

response to Hart’s incitement—bombarding the school with hundreds of emails and comments—

shows there was a sufficient nexus between Hart’s social media activity and the disruption of

school. The fact that Hart’s incitement of harassment on social media did not occur while on

Marshall High School property does not change the effects his actions had on the school

environment.

Alternatively, Hart’s speech online constitutes a true threat, which is not protected by the

First Amendment. An ordinary, reasonable bystander familiar with the context of the

communication would interpret his speech as encouragement of a threat of unlawful activity,

namely, harassing the school. Marshall County High School was allowed, even empowered, by

7

the First Amendment to regulate his speech against the apprehension and actual result of his true

threat.

This Court should reverse the judgment of the Fourteenth Circuit.

ARGUMENT AND AUTHORITIES

Standard of Review. This summary judgment appeal is reviewed de novo. United States v.

Winstar Corp., 518 U.S. 839, 860 (1996). In cases concerning the First Amendment, appellate

judges must exercise independent judgment and determine whether the record establishes a

forbidden intrusion on the field of free expression protected by the Constitution. Bose Corp. v.

Consumers Union, 466 U.S. 485, 499 (1984). This process of case-by-case adjudication is of

“special importance” and requires de novo review. Id. at 503.

I. THE GFSA, WHICH REGULATES STUDENTS’ USE OF FIREARMS DURING VIRTUAL

CLASSES, DOES NOT VIOLATE THE SECOND AMENDMENT.

The GFSA’s regulations regarding use and display of firearms during online class sessions

do not violate the Second Amendment. The Second Amendment’s text provides: “A well

regulated Militia, being necessary to the security of a free State, the right of the people to keep

and bear Arms, shall not be infringed.” U.S. Const. amend. II (emphasis added). But that right to

bear arms “[is] not unlimited, just as the First Amendment’s right of speech [is] not.” District of

Columbia v. Heller (Heller I), 554 U.S. 570, 595 (2008).

This Court explained the Second Amendment’s protections in District of Columbia v.

Heller. Id. at 575. The Court examined a regulation within the District of Columbia which

prohibited possession or registration of handguns and required that residents keep lawfully

owned firearms unloaded and dissembled or bound by a trigger lock. Id. The Court held the

regulation an unconstitutional infringement on an individual’s “inherent right of self-defense . . .

8

central to the Second Amendment right” and that the regulation “would fail constitutional

muster” under any level of scrutiny. Id. at 628–29; see also McDonald v. City of Chicago, 561

U.S. 742, 748 (2009) (incorporating the Second Amendment to the States through the Fourteenth

Amendment). The Court clarified that “nothing in our opinion should be taken to cast doubt on

longstanding prohibitions on . . . laws forbidding the carrying of firearms in sensitive places such

as schools and government buildings . . . .” Heller I, 554 U.S. at 626–27.

Heller led many circuit courts2 to create a two-step analysis to evaluate the constitutionality

of a firearm regulation. Id. at 625–30. First, a court will determine “whether the challenged law

burdens conduct that falls within the scope of the Second Amendment guarantee.” Gould v.

Morgan, 907 F.3d 659, 668–69 (1st Cir. 2018). If it does, the court then determines which level

of scrutiny to apply and if the regulation survives that level of scrutiny. Id. at 669.

The first step of the two-prong test is not implicated in this case.3 The GFSA certainly

burdens a student’s possession of firearms by prohibiting the use or display of weapons on

camera during virtual school.” R. at 4. But the dispute arises as to what level of scrutiny must be

2 The federal appellate courts for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth,

Tenth, Eleventh, and District of Columbia Circuits have adopted the two-step analysis. See

United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); Drake v. Filko, 724 F.3d 426, 429

(3d Cir. 2013); Peterson v. Martinez, 707 F.3d 1197, 1208 (10th Cir. 2013); Schrader v. Holder,

704 F.3d 980, 988–89 (D.C. Cir. 2013); Kachalsky v. County of Westchester, 701 F.3d 81, 93 (2d

Cir. 2012); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives,

700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012);

United States v. Staten, 666 F.3d 154, 159 (4th Cir. 2011); Ezell v. City of Chicago, 651 F.3d

684, 702–03 (7th Cir. 2011); Gould v. Morgan, 907 F.3d 659, 668–69 (1st Cir. 2018); United

States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017). The Eighth Circuit has not used the two-

step analysis in a majority opinion, but it has been mentioned as a basis for concurrence in

judgment by a concurring judge. See United States v. Adams, 914 F.3d 602, 610 (8th Cir. 2019)

(Kelly, J., concurring in judgment).

3 “It cannot be seriously questioned that the school’s policy burdens conduct protected by the

Second Amendment.” R. at 15. Petitioners do not seriously question this conclusion by the

Fourteenth Circuit Court of Appeals.

9

applied. Chovan, 735 F.3d at 1137 (“In Heller, the Supreme Court did not specify what level of

scrutiny courts must apply to a statute challenged under the Second Amendment. The Heller

Court did, however, indicate that rational basis review is not appropriate.”) (citing Heller I, 554

U.S. at 628 n.27). As such, courts have applied both intermediate and strict scrutiny, but never

rational basis.

The determination of which scrutiny to apply is fact-dependent, but circuit courts have

looked to the First Amendment as a guide: “We agree with these courts’ determination that, just

as in the First Amendment context, the level of scrutiny in the Second Amendment context

should depend on ‘the nature of the conduct being regulated and the degree to which the

challenged law burdens the right.’” Chovan, 735 F.3d at 1137 (citing United States v. Chester,

628 F.3d 673, 682 (4th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 96–97 (3d Cir.

2010)). “More specifically, the level of scrutiny should depend on (1) ‘how close the law comes

to the core of the Second Amendment right,’ and (2) ‘the severity of the law’s burden on the

right.’” Id. (citing Ezell, 651 F.3d at 703). This has resulted in a “spectrum of alternative

approaches” where regulations with burdens that “amount[] to a destruction of the . . . right”

receive strict scrutiny, while regulations that “either do not come close to the core of the Second

Amendment right or do not impose a severe burden on the exercise of the right” receive

intermediate scrutiny. Michael Jimenez, Young v. Hawaii: A Dangerous Precedent, 53 Loy.

L.A. L. Rev. 827, 841 (2020) (citing Heller I, 554 U.S. at 629; Jackson v. City & County of San

Francisco, 746 F.3d 953, 964 (9th Cir. 2014)).

The inconsequential burden on Hart’s Second Amendment right, and the regulation of that

right in a sensitive place, requires intermediate scrutiny. The government’s interest in preventing

harm to children is substantially related to the restriction the GFSA imposes, thus satisfying

10

intermediate scrutiny. Alternatively, even if this Court applied strict scrutiny, the GFSA would

meet that standard as it is narrowly tailored to further its compelling government interest.4

A. The GFSA Satisfies the Intermediate Scrutiny Applied to “Sensitive Places.”

Heller I clarified that no doubt should be cast on longstanding prohibitions of possession of

firearms in sensitive places as those prohibitions are presumptively lawful. 554 U.S. at 626 &

n.26; see also McDonald, 561 U.S. at 786 (“We made it clear in Heller that our holding did not

cast doubt on such longstanding regulatory measures as . . . laws forbidding the carrying of

firearms in sensitive places . . . . We repeat those assurances here.”) (internal quotation marks

omitted). “A challenger may rebut this presumption only by ‘showing the regulation [has] more

than a de minimis effect upon his right’ to bear arms.” United States v. Class, 930 F.3d 460, 463

(D.C. Cir. 2019) (citing Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1253 (D.C.

Cir. 2011)). The sensitive-places exception has been slowly, but surely, developed by lower

courts.5 In challenges brought to a regulation involving a “sensitive place,” courts have either

4 The Fourteenth Circuit Court of Appeals found the government’s interest to be compelling, but

that “the regulation is not narrowly tailored to serve that interest.” R. at 17.

5 DiGiacinto v. Rector & Visitors of George Mason Univ., 704 S.E.2d 365, 370 (Va. 2011)

(finding university events sensitive places); United States v. Masciandaro, 638 F.3d 458, 460

(4th Cir. 2011) (finding national parks, even when closed, sensitive places); Bonidy v. U.S.

Postal Serv., 790 F.3d 1121, 1125 (10th Cir. 2015) (finding parking lots of rural post offices as

sensitive places); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1264 (11th Cir. 2012)

(“[T]he preexisting right codified in the Second Amendment does not include protection for a

right to carry a firearm in a place of worship against the owner’s wishes.”); Class, 930 F.3d at

464 (holding that the parking lot outside the United States Capitol building was “sufficiently

integrated with the Capitol for Heller’s sensitive place exception to apply”); Morris v. U.S. Army

Corps of Eng’rs, 60 F. Supp. 3d 1120, 1125 (D. Idaho 2014) (finding hydro-electric dams not a

sensitive place); People v. Chairez, 104 N.E.3d 1158, 1177 (Ill. 2018) (striking down prohibition

on “possessing a firearm within 1000 feet of a public park”).

11

applied intermediate scrutiny6 or dispensed with scrutiny analysis altogether by holding there is

no Second Amendment right in sensitive places.7 Nevertheless, the Court in Heller I made clear:

schools are sensitive places. See 554 U.S. 626–27. Because a school’s fundamental purpose is to

educate all students without distraction, whether virtually or in person, the GFSA receives

intermediate scrutiny or escapes scrutiny altogether.

1. A classroom, even online and at home, is a “sensitive place” under

Heller I, where the school can limit the Second Amendment.

The distinction of a classroom being online does not change the sensitivity of a school

under the Second Amendment, as its purpose remains to educate children without disruption.

Courts have yet to address whether a “virtual space” can be a “sensitive place,” but commentors

have opined to what exactly makes a place sensitive:

It cannot be solely a matter of congestion in the school. Presumably it is as legal to

prohibit a gun in a class of five people as a class of five hundred. Nor is it necessarily

that the school is on government property: a private school is just as much a school as

a public one. Further, as the Class case confirms, safety alone does not completely

justify carving out these sensitive places.

Darrell A.H. Miller, Constitutional Conflict and Sensitive Places, 28 Wm. & Mary Bill Rts. J.

459, 466 (2019). The geographic area of these institutions does not make them “sensitive

places.” Rather, the purpose for which they are so protected: the public goods and political

culture nurtured within then. Id. For those public goods and political culture to naturally and

fully blossom, schools, and specifically classrooms, must be protected from conduct “disruptive

6 See DiGiacinto, 704 S.E.2d at 370; Masciandaro, 638 F.3d at 473; Chovan, 735 F.3d at 1138;

Filko, 724 F.3d at 435;. Holder, 704 F.3d at 989; Kachalsky, 701 F.3d at 96–97; Nat’l Rifle Ass’n

of Am., Inc., 700 F.3d at 205; Staten, 666 F.3d at 159; but see Tyler v. Hillsdale Cnty. Sheriff’s

Dep’t, 837 F.3d 678, 691–92 (6th Cir. 2016) (en banc) (reversing panel’s decision to apply strict

scrutiny and applied intermediate scrutiny instead).

7 Bonidy, 790 F.3d at 1126; Class, 930 F.3d at 465.

12

of the educational process.” See generally Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675,

685–86 (1986) (recognizing a school’s authority to regulate conduct that would be disruptive of

the “work of the schools”).

a. Classrooms and schools’ special purpose as marketplaces of

ideas establish them as a “sensitive places.”

As this Court emphasized in Fraser, “‘[p]ublic education must prepare pupils for

citizenship in the Republic. . . . It must inculcate the habits and manners of civility as values in

themselves conducive to happiness and as indispensable to the practice of self-government in the

community and the nation.’” Id. at 681 (quoting Charles A. Beard & Mary R. Beard, New Basic

History of the United States 228 (1968)). This Court explained “[t]he classroom is peculiarly the

‘marketplace of ideas.’” Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 603

(1967). For that reason, a school has a certain deference in effectively protecting the “training

grounds for public discourse” and the place “where ideas begin.” Paul Horwitz, First Amendment

Institutions 107 (2013). “Where school and university regulations ‘improve, not limit, the free

flow of information and ideas’ then institutional deference is warranted.” Miller, supra, at 471

(quoting Joseph Blocher, Institutions in the Marketplace of Ideas, 57 Duke L.J. 821, 880 (2008)).

Therefore, schools may discipline student conduct that is contrary to “the school’s basic

education mission.” Fraser, 478 U.S. at 685. Schools must maintain order and discipline to

accomplish this mission. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509

(1969).

The GFSA satisfies that purpose of protecting the classroom from disruptions to the

educational process. The relevant part of the policy specifically mentions the core operation of a

school: “While classes are conducted online, students may not have any weapons visible on

camera.” R. at 4. That classroom is a “sensitive place,” even if it is being held virtually. The

13

“place” although intangible, only includes what can be shown on screen captured through the

live video feed. That is to say, the only place that the GFSA applies in this case would be what a

student’s video camera captures. A firearm stored right behind the computer monitor and off-

screen would not run afoul of the GFSA. Even a firearm being cleaned or inspected, out of the

camera’s sight, would not trigger application of the GFSA. But when a student, during class time

and within the camera’s view, holds a firearm, inspects it, and brandishes it, then that conduct

triggers the GFSA to protect the integrity of the classroom. Only when the firearm can have a

disruptive effect on the classroom by being visible to others during school functions, as it did in

this case, does the GFSA apply.

b. The guidance from Tinker, Fraser, and Morse supports

regulating a student’s actions at home that disrupts virtual

school events.

This Court, lower courts, and commentors have looked to First Amendment jurisprudence

for guidance in determining Second Amendment limits.8 “Justice Scalia [in Heller I] repeatedly

8 See Chester, 628 F.3d at 682 (considering First Amendment law as a broad model for

developing Second Amendment standards of review); United States v. Marzzarella, 614 F.3d 85,

89 n.4 (3d Cir. 2010) (“[T]he structure of First Amendment doctrine should inform our analysis

of the Second Amendment.”); Joseph Blocher, The Right Not to Keep or Bear Arms, 64 Stan. L.

Rev. 1, 22–23 (2012) (discussing the bases and appeal of doctrinal analogies from the First

Amendment to the Second); Mark Tushnet, Heller and the Perils of Compromise, 13 Lewis &

Clark L. Rev. 419, 421–23 (2009) (suggesting that First Amendment law might provide a general

template for Second Amendment review and emphasizing the prevalence of interest balancing in

First Amendment review); William Van Alstyne, The Second Amendment and the Personal

Right to Arms, 43 Duke L.J. 1236, 1254 (1994) (positing a “rule of reason” to constrain rights

under the First and Second Amendments); Eugene Volokh, Implementing the Right to Keep and

Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L.

Rev. 1443, 1449–61 (2009) (drawing on First Amendment doctrine in discussing different

dimensions of rights analysis that should inform the development of Second Amendment

doctrine). See n. 9, supra.

14

invokes the First Amendment9 to set terms for proper judicial analysis of Second Amendment

rights.” Gregory P. Magarian, Speaking Truth to Firepower: How the First Amendment

Destabilizes the Second, 91 Tex. L. Rev. 49, 60 (2012) (analyzing Justice Scalia’s analogies

between the First Amendment and Second Amendment used in Heller I, including historical

origins, rights protected, and process of judicial review). The Court’s reliance on First

Amendment principles when reviewing Second Amendment10 regulations leads to a wealth of

jurisprudence by which courts can rely on in conducting their analysis of regulations on the

Second Amendment.

Three seminal cases involving First Amendment rights in school settings are Tinker v. Des

Moines Independent Community School District, Bethel School District v. Fraser, and Morse v.

Frederick. All three involve a school’s regulation of First Amendment rights. The first, and most

well-known, case is Tinker v. Des Moines Independent Community School District. Tinker

involved a protest of the Vietnam War by a small group of students who wore black armbands to

school to represent their disapproval of the war. 393 U.S. at 504. The school district learned of

this protest and instituted a policy that would suspend anyone who wore the armbands on

9 Heller I, 554 U.S. at 582 (“Just as the First Amendment protects modern forms of

communications . . . the Second Amendment extends . . . to all instruments that constitute

bearable arms, even those that were not in existence at the time of the founding.”); id. at 595

(“Of course the right [to bear arms] was not unlimited, just as the First Amendment right of free

speech was not.”); id. at 635 (“The First Amendment contains the freedom-of-speech guarantee

that the people ratified, which included exceptions . . . but not for the expression of extremely

unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is

the very product of an interest-balancing by the people . . . .”).

10 The Court has also applied First Amendment principles and jurisprudence in school settings to

other constitutional rights, such as the Fourth Amendment. See Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646, 655–56 (1995) (“[W]hile children assuredly do not ‘shed their constitutional rights

. . . at the schoolhouse gate,’ . . . the nature of those rights is what is appropriate for children in

school. . . . Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are

different in public schools than elsewhere . . . .”) (quoting Tinker, 393 U.S. 506).

15

campus. Id. The Court established a disjunctive two-part test to determine whether the student’s

speech could be sanctioned by a public school district. Id. at 514. If the speech either (1) led to

conduct that did “materially and substantially disrupts the work and discipline of the school” or

(2) “might reasonably have led school authorities to forecast substantial disruption of or material

interference with school activities,” then regulation of said speech would be lawful. Id. at 513–

14. The Court ultimately determined that the student’s speech did not meet the substantial

disruption standard. Id. at 508. The Court was careful to note that Tinker did “not concern speech

or action that intrudes upon the work of the schools or the rights of other students.” Id.

Seventeen years after Tinker, this Court next addressed the limits of regulating conduct

during school functions in Bethel School District No. 403 v. Fraser. There, the Court dealt with a

school’s discipline of a high school student after a speech he gave at an assembly that was

“indecent, lewd, and offensive to the modesty and decency of many of the students and faculty in

attendance at the assembly.” 478 U.S. at 678–79. The Court reaffirmed that students do not

“shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” id.

at 680 (citing Tinker, 393 U.S. at 506), but that a student’s constitutional rights are not

“automatically coextensive with the rights of adults in other settings,” id. at 682 (citing New

Jersey v. T.L.O., 469 U.S. 325, 340–42 (1985)). The Court explained, “‘the First Amendment

gives a high school student the classroom right to wear Tinker’s armband, but not Cohen’s

Jacket.’”11 Id. (quoting Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1057

(2d Cir. 1979) (Newman, J., opinion concurring in result)). The Court upheld the suspension,

finding that unlike Tinker, “the penalties imposed in this case were unrelated to any political

11 “Cohen’s Jacket” refers to Cohen v. California, where the Court reversed the conviction of

Paul Robert Cohen, on First Amendment Grounds, for wearing a jacket bearing the words “Fuck

the Draft” outside a municipal court, in violation of California Penal Code § 415. 403 U.S. 15,

16–17 (1971).

16

viewpoint,” prevented speech that “could well be seriously damaging to its less mature

audience,” and that “the First Amendment does not prevent school officials from determining

that to permit [the petitioner’s conduct] would undermine the school’s basic educational

mission.” 478 U.S. at 683–85. The Court went even further, looking back at Tinker, disclaiming

“‘any purpose . . . to hold the Federal Constitution compels the teachers, parents, and elected

school officials to surrender control of the American public school system to public school

students.’” Id. at 686 (quoting Tinker, 393 U.S. at 526 (Black, J., dissenting)).

Finally, this Court considered the application of Tinker and Fraser outside of school

grounds in the 2009 case of Morse v. Frederick, 551 U.S. 393, 97–98 (2007). There, the Court

reviewed a suspension of a student for holding an inappropriate banner at a school sponsored

event off of school grounds. Id. Students were permitted by the principal to leave school early to

observe an Olympic Torch Relay that was to occur on a street in front of the high school. Id. at

397. Students stood on both sides of the street. As the torch relay, along with news cameras,

crossed the high school and students, a student unfurled a 14-foot banner bearing the phrase

“BONG HiTS [sic] 4 JESUS.” Id. He was suspended for refusing to put away the banner. Id. The

Court first rejected the student’s argument that it was not school speech case as “Frederick

cannot stand in the midst of his fellow students, during school hours, at a school-sanctioned

activity and claim he is not at school.” Id. at 400 (internal quotation marks and citations

removed). The Court next found the banner to directly contravene the governmental interest in

deterring illegal drug use and found it part of the principal’s responsibilities to prevent said

contravention: “It was reasonable for [Morse] to conclude that the banner promoted illegal drug

use . . . and that failing to act would send a powerful message to the students in her charge . . .

about how serious the school was about the dangers of illegal drug use.” Id. at 409. The Court

17

ultimately held that the First Amendment does not require schools “to tolerate at school events

student expression that contributes to those dangers.” Id.

Tinker, Fraser, and Morse define the extent of a school’s dominion over students’

constitutional rights. Tinker shows that students do not forfeit their rights at the “schoolhouse

gate” but that exercising those rights cannot substantially disrupt the school’s mission. Fraser

describes that a school does not surrender control of its events because the Federal Constitution

demands it and that offensive, even potentially damaging, conduct cannot hide behind

constitutional rights if it undermines a school’s basic and core mission. Finally, Morse illustrates

that a school’s regulation of conduct is not limited geographically but extends to off-campus

events sponsored by the school and empowers officials to protect governmental interests even

when not on physically school property.

Here, the GFSA lawfully regulates dangerous conduct within a school-sponsored event.

Hart and his father’s brandishing of firearms was a “substantial disruption” to a school activity,

namely the primary school activity of teaching in a classroom, garnishing alarmed reactions from

fellow students and teachers.12 That conduct could be potentially damaging to the young psyche,

as the Court found in Fraser, when the school had undergone an attempted school shooting less

than two months prior to this incident.13 See Maya Rossin-Slater et al., Local Exposure to School

Shooting and Youth Antidepressant Use (Stan. Inst. for Econ. Pol’y Rsch., Working Paper No.

19-036, 2019) (“[O]ur results demonstrate that local exposure to fatal school shootings leads to

12 Hart received the following messages from his teacher and fellow students while in class:

“Jack, is that a gun?!”; “Jack?”; “I’m calling the police”; “Dude, is that your gun? And what is

your Dad pointing his gun at?”; “Hey! You are in class with a gun?!? That is so not cool!” R. at

3.

13 The record indicates that there was an attempt by a former student to infiltrate the high

school’s Valentine’s dance to shoot his ex-girlfriend and her date. R. at 4. This attempt was

prevented. R. at 4.

18

significant and persistent increases in antidepressant use among American youth. . . . [I]f school

shootings increase the use of non-pharmacological treatment, the use of pharmacological

treatment with medications other than antidepressants, or the prevalence of untreated mental

illness, then the true effects of school shootings on youth mental health will be even larger.”).

Similar to Morse, the physical bounds of school are not relevant because Hart was in the view of

his fellow students, during school hours, in the most fundamental school activity: class. Like in

Morse, Principal Phyllis Beard was empowered to further the governmental interest of protecting

children in her care from school sponsored events, such as virtual class, even if it wasn’t directly

on campus. The end result is that this Court’s jurisprudence establishes Wythe and Marshal

County High School’s power to regulate the Second Amendment in its virtual classrooms, even

while the students are in their own homes.

2. The GFSA satisfies intermediate scrutiny.

Having determined school administrators can regulate gun use in the virtual classroom, the

GFSA receives intermediate scrutiny as a regulation of a “sensitive place” and because it does

not come close to “the core of the Second Amendment right” or impose a “severe burden on the

right.” Chovan, 735 F.3d at 1137. As the GFSA’s regulations are substantially related to an

important governmental interest, the GFSA satisfies intermediate scrutiny.

a. Intermediate scrutiny applies because the GFSA does not

substantially burden the Second Amendment’s core area of

protection, escaping strict scrutiny.

The level of scrutiny in the Second Amendment context depends on the nature of the

conduct being regulated and the degree to which the challenged law burdens the right. Id. at

1137. “Heller tells us that the core of the Second Amendment is ‘the right of law-abiding,

responsible citizens to use arms in defense of hearth and home.’” Id. (quoting Heller I, 554 U.S.

19

at 635). Even when a regulation implicates the “core of the Second Amendment,” the regulation

may still receive intermediate scrutiny if there is no severe burden imposed. See, e.g.,

Marzzarella, 614 F.3d at 85.

Even de minimis burdens on gun possession within the home are evaluated under

intermediate scrutiny. In United States v. Marzzarella, the Third Circuit dealt with Michael

Marzzarella’s conviction under a Pennsylvania regulation making it illegal to possess a handgun

with the serial number removed or obliterated. Id. at 88. Marzzarella contended that his

ownership of a handgun implicated “an enumerated fundamental constitutional right” to possess

a firearm. Id. at 96. The Third Circuit agreed that the “possession of the Titan pistol in his home

implicates his interest in the defense of hearth and home—the core protection of the Second

Amendment” but found the burden on Marzzarella’s “ability to defend himself [as] arguably de

minimis.” Id. at 94. Since the “burden imposed by the law does not severely limit the possession

of firearms,” the Third Circuit applied intermediate scrutiny, distinguishing this regulation from

the harsh regulation in Heller I. Id. at 97 (“[The regulation] does not come close to [the] level of

infringement [in Heller I]. It leaves a person free to possess any otherwise lawful firearm he

chooses—so long as it bears its original serial number.”). The Third Circuit also relied First

Amendment principles, equating the regulation in question to regulations of the time, place, and

manner in a First Amendment analysis in determining to apply intermediate scrutiny:

Because [the regulation] was neither designed to nor has the effect of prohibiting the

possession of any class of firearms, it is more accurately characterized as a regulation

of the manner in which persons may lawfully exercise their Second Amendment

rights. The distinction between limitations on the exercise of protected conduct and

regulation of the form in which that conduct occurs also appears in the First

Amendment context. Discrimination against particular messages in a public forum is

subject to the most exacting scrutiny. Regulations of the manner in which that speech

takes place, however, receive intermediate scrutiny, under the time, place, and

manner doctrine. Accordingly, we think [the regulation] also should merit

intermediate, rather than strict, scrutiny.

20

Id. The Third Circuit ultimately found the regulation satisfied intermediate scrutiny and

confirmed the conviction. Id. at 98, 100.

Similar to Marzzarella, the GFSA does not necessarily invoke the core of the Second

Amendment or impose unduly burdensome restrictions. Although it could arguably implicate the

core of the Second Amendment because the virtual classroom would take place within a

student’s home, as it did here, it does not outlaw having guns within any part of the home; it is

not an all-out ban on possession, merely a prohibition of having firearms in view of the camera

during class time. The policy states in relevant part: “While classes are conducted online,

students may not have any weapons visible on camera.” R. at 4. The policy does not prohibit

ownership as a whole, but rather dictates that no student have a firearm in view of the camera to

where other students might see it. This is a far-cry from the regulation in Heller I or even

Marzzarella which both, in one way or another, prohibit possession or ownership of a firearm.

The GFSA is much closer to a time, place, and manner regulation, receiving intermediate

scrutiny. Under the GFSA, Hart could have had a firearm on his lap, away from the view of the

camera, for the entirety of the school year, and never run afoul of the policy. This de minimis

regulation of firearms does not come close to that of Heller I or even Marzzarella. As such, the

GFSA should receive intermediate scrutiny.

b. The GFSA satisfies intermediate scrutiny because it is

substantially related to an important governmental interest in

keeping classrooms, even virtual, safe.

Intermediate scrutiny generally requires the asserted governmental end to be “more than

legitimate, either ‘significant,’ ‘substantial,’ or ‘important.’” Marzzarella, 614 F.3d at 98 (citing

Turner Broad. Sys. v. FCC, 512 U.S. 622, 662 (1994); Ward v. Rock Against Racism, 491 U.S.

781, 791 (1989)). The relationship between the regulation must be “reasonable, not perfect.” Id.

21

(citing Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556 (2001); Bd. of Trs. of State Univ. of

N.Y. v. Fox, 492 U.S. 480 (1989)). The regulation need not be the least restrictive means of

serving the interest but may not burden more than is reasonably necessary. Id. (citing Turner

Broad. Sys., 512 U.S. at 662, Ward, 491 U.S. at 800).

The government has a substantial, even compelling, interest in preventing harm to children.

New York v. Feber, 458 U.S. 747, 756–57 (1982) (“It is evident beyond the need for elaboration

that a State’s interest in safeguarding the physical and psychological well-being of a minor is

compelling.”) (emphasis added) (citing Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 607

(1982)). The Fourteenth Circuit Court of Appeals even concedes in its strict scrutiny analysis

that there is a legitimate government interest: “The government has a legitimate interest in

protecting school children from gun violence . . . .” R. at 17.

The restrictions imposed evidence a close fit between the interest, protecting minors from

gun violence and its psychological effects, and the prohibition of firearms in the virtual

classroom. A child cannot be exposed to a gun if there is not one in the camera’s view. It is also

not overly restrictive; the GFSA is only confined to times where there is class and to what can be

seen in the camera. As such, the GFSA survives intermediate scrutiny by protecting the

classroom context and students psyche, while still ensuring students’ Second Amendment rights

are safeguarded.

B. Alternatively, the GFSA Satisfies Strict Scrutiny.

Alternatively, if this Court determines strict scrutiny to be the appropriate standard, the

GFSA still passes constitutional muster. Strict scrutiny requires “the Government to prove that

the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.”

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011). Under strict

22

scrutiny review, the Court presumes the law is “invalid and the government bears the burden of

rebutting that presumption.” United States v. Playboy Entm’t Grp., 529 U.S. 803, 817 (2000).

The government’s interest in preventing needless exposure to gun violence or triggers of

gun violence is certainly compelling.14 See Feber, 458 U.S. at 756–57. The court of appeals,

however, found the regulation “not narrowly tailored to serve that interest,” describing the GFSA

as having implemented “a complete ban on firearm possession, not just for the student but for

anyone in his home . . . .” R. at 17–18. Narrow tailoring requires that the regulation “actually

advance the compelling interest it is designed to serve.” Eu v. S.F. Cnty. Democratic Cent.

Comm., 489 U.S. 214, 226 (1989). “The law must be the least-restrictive method of serving that

interest, and the burdening of a significant amount of protected conduct not implicating the

interest is evidence the regulation is insufficiently tailored.” Marzzarella, 614 F.3d at 100 (citing

Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)).

Although the Third Circuit court in Marzzarella decided to apply intermediate scrutiny, the

court still analyzed whether the regulation in question—prohibiting possession of a handgun with

the serial number removed or obliterated—would fail strict scrutiny. Id. Marzzarella argued the

regulation was overinclusive, and thus fails, narrow tailoring, as even if the original serial

number was removed from a handgun, there would still be ways to retrieve that number through

certain laboratory procedures. Id. The Third Circuit dismissed this argument, stating that the

ability to retrieve the serial number through “ex post circumstances” does not lessen the statutes

furtherance of the government’s compelling interests in tracing firearms and discouraging the

possession of firearms that are harder or impossible to trace. Id. “That these actions sometimes

14 As mentioned in Section I.A.1. above, the Fourteenth Circuit acknowledged the government

has a compelling interest in ensuring the safety of protecting school children from gun violence.

R. at 17.

23

fail does not make the statute any less properly designed to remedy the problem of untraceable

firearms. Accordingly, we find [the regulation] narrowly tailored.” Id.

Here, the GFSA is narrowly tailored as it actually advances the government’s compelling

interest and uses the least restrictive means, while not being over inclusive. The GFSA furthers

the protection of minors from undue psychological harm by preventing the on-screen display of

any firearm by the student during class time. It is the least restrictive means because it only

restricts those firearms from being in view on the camera, not from being possessed as a whole.

It is only when that Second Amendment right can cause psychological pain to other students in

the classroom context that the GFSA steps in to prevent that harm and disruption from

happening. It is also not over inclusive because it does not include other members of the

household.15 It only affects students who are present and in class, while visible on camera. As the

GFSA is narrowly tailored, and there is a compelling governmental interest, the regulation is

constitutional under the Second Amendment.

II. THE SCHOOL’S SOCIAL MEDIA POLICY, WHICH PROHIBITS ONLINE CONDUCT CAUSING

“DISORDER OR DISTURBANCES” IN A SCHOOL SETTING, DOES NOT VIOLATE THE FIRST

AMENDMENT.

Marshall High School’s Social Media police appropriately restricts students’ off-campus

speech that have, or can have, a tangible effect on the school’s day-to-day functions. It does not

violate the students’ First Amendment rights.

15 Although Hart’s father was seen in the background of the camera with a gun, there is no

evidence that Hart was suspended for his father’s possession. Even if it had been, the lack of

language in the GFSA extending the prohibition to anyone in the camera’s view would not

render the GFSA “fatally underinclusive” as to fail strict scrutiny. See Williams-Yulee v. Fla.

Bar, 575 U.S. 433, 449 (2015) (holding that a law fails strict scrutiny only when

underinclusiveness reveals that the law does not actually advance a compelling interest) (“It is

somewhat counterintuitive to argue that a law violates the First Amendment by abridging too

little speech.”).

24

The First Amendment provides that “Congress shall make no law . . . abridging the

freedom of speech.” U.S. Constitution amend. I. First Amendment protections apply to students

in public schools. Tinker, 393 U.S. at 506. This Court has recognized that “[t]he process of

educating our youth for citizenship . . . is not confined to books, the curriculum, and the civics

class.” Fraser, 478 U.S. at 683. Critical to the education of youth is the school’s responsibility

“to establish and apply their curriculum in such a way as to transmit community values . . . be

they social, moral, or political.” Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,

457 U.S. 853, 864 (1982). To protect that responsibility, this Court has recognized a school’s

ability to limit student speech in various contexts, including speech that causes or is reasonably

foreseeable to cause a disruption, Tinker, 393 U.S. at 738, is lewd, vulgar, or profane, Fraser,

478 U.S. at 685, can be reasonably inferred as school-sponsored, Hazelwood Sch. Dist. v.

Kuhlmeier, 484 U.S. 260, 272–73 (1988), or promotes illegal drug use, Morse, 551 U.S. at 407–

08.16 But the Court has recognized that there is “some uncertainty at the outer boundaries as to

when courts should apply school speech precedents.” Id. at 400 (citing Porter v. Ascension Par.

Sch. Bd., 393 F.3d 608, 615 n.22 (5th Cir. 2004)). Nonetheless, a bright-line, geographical

parameter that restricts school’s jurisdiction to edge of the playground is unworkable in the

digital age. See Bryan Starett, Tinker’s Facebook Profile: A New Test for Protecting Student

Cyber Speech, 14 Va. J. L. & Tech. 212, 225 (2009) (“The ubiquity of the Internet prevents a

traditional, geographically-based analysis of where student speech occurs. Indeed, with the click

of a mouse, any speech posted to the Internet from off-campus can instantaneously reach school

grounds.”).

16 See Section I.A.1.b supra for an in-depth description of Tinker, Fraser, and Morse.

25

This Court has yet to address a school’s jurisdiction to control electronic off-campus

speech, leaving school educators to “test and see” what level of regulation is permissible. See

Watt Lesley Black, Jr. Ph.D., Omnipresent Student Speech and the Schoolhouse Gate:

Interpreting Tinker in the Digital Age, 59 St. Louis U. L.J. 531, 532 (2015) (“But the Supreme

Court has yet to deal specifically with electronic student speech that originates off the school

campus. Therefore, school administrators continue to struggle to appropriately balance the

school’s interest in safety, order, and discipline against the First Amendment rights of

students.”). Lower courts have been left to decipher Tinker in a modern, information overload,

era.17 Despite varying approaches, most circuits have held that schools generally have the ability

to punish off-campus speech, as long as they show some sort of connection or nexus between

off-campus, online student speech and something that occurs at school. James C. Hanks, School

Bullying: How Long Is the Arm of the Law? 99–100 (2d ed. 2015) (“[C]ourts thus far are saying

‘Show me the nexus!’”). In other words, courts18 are applying the Tinker substantial disruption

17 See J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 951 (3d Cir. 2011) (en banc)

(“The line between ‘on-campus’ and ‘off-campus’ speech is not as clear as it once was.”)

(Fisher, J., dissenting). Many circuit courts have their own tests to determine whether a school

has jurisdiction over off-campus student speech under the First Amendment. See LaVine v.

Blaine Sch. Dist., 257 F.3d 981, 991–92 (9th Cir. 2001) (finding that school had jurisdiction

when student brought a poem that described a school shooting onto campus); Boucher v. Sch. Bd.

of Sch. Dist. of Greenfield, 134 F.3d 821, 829 (7th Cir. 1998) (holding that school has

jurisdiction when student had actual knowledge that speech would reach the campus);

Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34, 39 (2d Cir. 2007)

(deciding that “school discipline was permissible because it was reasonably foreseeable that”

speech would “come to attention of school authorities”); Kowalski v. Berkeley Cmty. Schs., 652

F.3d 565, 573 (4th Cir. 2011) (finding that school could regulate speech “reasonably be expected

to reach the school”).

18 See, e.g., D.J.M. v. Hannibal Pub. Sch. Dist., 647 F.3d 754, 766 (8th Cir. 2011) (applying

Tinker to off-campus student speech that was threatening if it was “reasonably foreseeable” that

the speech would cause a substantial disruption at school); Kowalski, 652 F.3d at 573 (“There is

surely a limit to the scope of a high school’s interest in the order, safety, and well-being of its

students when the speech at issue originates outside the schoolhouse gate. But we need not fully

define that limit here, as we are satisfied that the nexus of Kowalski’s speech to Musselman High

26

standard to students’ social media speech if there was either a reasonable foreseeability that the

student’s speech will have an impact on the school or there is a clear nexus between the student’s

social media and events at school.19 David L. Hudson, Jr., Unsettled Questions in Student Speech

Law, 22 U. Pa. J. Const. L. 1113, 1130 (2020).

Hart’s online speech here both shows a reasonable foreseeability that there will be some

sort of disruption and a substantial nexus to the disruption that occurred. When Hart liked a

social media posting of the school’s contact information, asking the community to “[c]all, email

[and] blast the school for trying to ignore the Second Amendment!!!” he communicated a clear

and unequivocal message to bombard and harass the school on his behalf. R. at 5. This speech

both reasonably forecasted a disruption of the school’s inner workings, as well as actually

coming to fruition with Marshall High School receiving hundreds of emails and online

comments a day regarding Harts suspension. R. at 6. A sufficient nexus connects Hart’s calls to

action with the disruption that occurred at the school, as his calls to action were actually

followed.20 As such, the First Amendment does not limit Marshall High School’s ability to

discipline this disruptive behavior.

School’s pedagogical interests was sufficiently strong to justify the action taken by school

officials in carrying out their role as the trustees of the student body’s well-being.”).

19 Courts have looked primarily at the Fourth Circuit’s “Sufficient-Nexus” test in Kowalski, 652

F.3d 565, and at the Eighth Circuit’s “Reasonable Foreseeability” test in S.J.W. ex rel. Wilson v.

Lee’s Summit R-7 Sch. Dist. 696 F.3d 771 (8th Cir. 2012). Some circuits apply both tests, such as

the Ninth Circuit in Wynar ex rel. Wynar v. Douglas County Sch. Dist., 728 F.3d 1062 (9th Cir.

2013).

20 For days after Hart’s “liking” of the posts in question, the school’s principal received an influx

of emails calling for his resignation and demanding the suspension be lifted. R. at 12. Other

school administrators and faculty received similar messages, as well as the school’s social media

account being “bombarded” with similar messages. R. at 12. The school also received messages

from alarmed parents and students regarding Hart’s specific online behavior. R. at 12.

27

Alternatively, Hart’s online speech constitutes an unprotected true threat. By advocating

that the community bombard the school on his behalf, “effectively bringing [the school] to its

knees,” R. at 20. Hart was advocating a true threat to harass and disparage the school officials.

Because his speech was a true threat, it receives no First Amendment protections and Hart could

properly be punished for it.

A. School Officials Reasonably Forecasted That Hart’s Online Activity Would

Cause a Substantial Disruption.

A school can regulate speech that either “materially and substantially disrupts the work and

discipline of the school” or “might reasonably have led school authorities to forecast substantial

disruption of or material interference with school activities.” Tinker, 393 U.S. at 513–14. School

officials can discipline students for conduct forecasted to cause “substantial disruption of or

material interference with school activities” if such forecast is reasonable. Id. at 514. “Although

the burden is on school authorities to meet Tinker’s requirements to abridge student First

Amendment rights, the School District need not prove with absolute certainty that substantial

disruption will occur.” Blue Mountain Sch. Dist., 650 F.3d at 928 (emphasis added); see also

Wynar, 728 F.3d at 1070 (“Tinker does not require school officials to wait until disruption

actually occurs before they may act . . . . ‘In fact, they have a duty to prevent the occurrence of

disturbances.’”) (quoting LaVine, 257 F.3d at 989).

The disturbance required to trigger jurisdiction under Tinker is not a high bar: “because of

the state’s interest in education, the level of disturbance required to justify official intervention is

relatively lower in a public school than it might be on a street corner.” Karp v. Becken, 477 F.2d

171, 175 (9th Cir. 1973). The analysis then becomes whether school officials acted reasonably,

both in forecasting potential disruptions and in their subsequent actions. “The temptation to be a

‘Monday morning quarterback’ should be resisted—focus should be upon whether the

28

apprehension of the school officials was unreasonable under the circumstances.” Id. at 176.

Because the primary inquiry is the reasonableness of the school, this Court should apply the

“reasonable foreseeability” standard to determine whether it was reasonably foreseeable that

Hart’s conduct would cause an interference within the school.

1. The Court should adopt the “reasonable foreseeability” standard and

permit public schools to discipline students for Internet speech that

could reasonably be expected to reach the school environment and

cause a disruption within it.

Rather than the categorical, geographic approach taken by the Fourteenth Circuit Court of

Appeals, 21 this Court should adopt the reasonable foreseeability standard applied by lower

courts.22 Hart’s speech was reasonably forecasted to cause a disruption with the ongoing of the

school.

The reasonable foreseeability standard asks if “it is reasonably foreseeable that the speech

would come to the attention of the [school] administration.” Wisniewski, 494 F.3d at 40. The

standard applies Tinker’s focus on preventing harm coming on-campus, even from off-campus

activity when there is a reasonably forecast that the off-campus speech would eventually make

its way on-campus. Applying Tinker in this manner allows the school to develop with the

advancement of technology and speech with it. “Tinker’s simple armband, worn silently and

brought into [the] classroom, has been replaced by . . . complex multi-media web site[s],

accessible to fellow students, teachers, and the world.” J.S. ex rel. H.S. v. Bethlehem Area Sch.

21 The Fourteenth Circuit Court of Appeals routinely relied on Hart not being physically on

campus as grounds to disavow any Tinker analysis. See, e.g., R. at 18 (“Hart was unquestionably

away from school property when he ‘liked’ the posts in question.”).

22 See, e.g., S.J.W., 696 F.3d at 778; D.J.M., 647 F.3d at 766; Doninger v. Niehoff, 527 F.3d 41,

48 (2d Cir. 2008); Wisniewski, 494 F.3d at 40.

29

Dist., 807 A.2d 847, 863–64 (Pa. 2002). This reasonable foreseeability threshold adapts Tinker to

the changing technological environment.

The reasonably foreseeability standard gives schools the discretion to regulate online

speech that directly pertains to their students. For example in Shen v. Albany Unified School

District, the Northern District of California determined whether a school could punish some of

its students for their interactions with “racist and derogatory” content posted to an Instagram

account, owned by several students at the school. No. 3:17-CV-02478-JD, 2017 WL 5890089, at

*1 (N.D. Cal. Nov. 29, 2017). The Instagram posts depicted, among other things, ten other high

school students, coupled with racist and offensive captions.23 The school disciplined the creator

of the account, but also those who either liked, commented, or took photographs that ended up

on the account, even if they did not directly post the images. Id. at *2. None of the interactions,

neither the posting, “liking,” or commenting, occurred on school grounds or during school hours.

Id.

The two students who merely “liked” some of the posts argued that was not speech under

the First Amendment. Id. at *5. The court found that a like on Instagram “broadcasts the user’s

expression of agreement, approval, or enjoyment of the post, which is clearly speech protected

by the First Amendment.” Id. (citing Bland v. Roberts, 730 F.3d 368, 386 (4th Cir. 2013), as

amended (Sept. 23, 2013) (recognizing that “liking” Facebook political campaign page is

substantive speech)); City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994) (displaying signs is

substantive speech even though it “may not afford the same opportunities for conveying complex

ideas as do other media”).

23 The district court listed certain examples taken from the Instagram account, one of which

includes a fellow student and the high school’s basketball coach, both of whom are African

American, with nooses drawn around their necks, captioned, “twinning is winning.” 2017 WL

5890089, at *2.

30

The district court, following its Ninth Circuit jurisprudence, applied both the substantial

nexus and reasonable foreseeability test. Id. at *6. In applying the reasonable foreseeability test,

the court found: (1) the activity was targeted to the school; (2) the posts, comments, and likes

were made by students about students; and (3), it was “precisely the targeted nature of the

content . . . that led . . . to the show[ing] of the account to others.” Id. at *7. “Moreover,

plaintiffs’ activity on Instagram appear to have been related to ongoing social tensions at school,

which again increased the likelihood their speech would reach and disturb the campus.” Id. The

court found that although “the disruption fell short of a full-scale riot,” the disruption the school

suffered was sufficient to warrant discipline of the students. Id. at *8 (citing Kowalski, 652 F.3d

at 574 (finding a school may act early to avoid continuing and more serious harm)).

The reasonable foreseeability test translates the purpose behind Tinker into the digital age.

Applying a strict, geographic boundary to a school’s jurisdiction would allow a student to cross

the “schoolhouse gate,” drive off school property, and post on the internet racist and derogatory

postings concerning the school, students, or faculty, without any repercussion. As Judge Jordan

of the Third Circuit Court of Appeals explained:

It is, after all, a given that “[t]he most stringent protection of free speech would not

protect a man in falsely shouting fire in a theatre and causing a panic” . . . and no one

supposes that the rule would be different if the man were standing outside the theater,

shouting in. Thus it is hard to see how words that may cause pandemonium in a

public school would be protected by the First Amendment simply because technology

now allows the timing and distribution of a shout to be controlled by someone beyond

the campus boundary.

Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 221 (3d Cir. 2011) (Jordan, J.,

concurring) (quoting Schenck v. United States, 249 U.S. 47, 52 (1919)). As such, this Court

should apply the reasonable foreseeability test to Hart’s off -campus speech.

31

2. Respondent’s online activity satisfies the reasonable foreseeability

standard.

Applying the reasonable foreseeability standard, it is clear that Hart’s incitement could

harm the school’s operations. Like the court recognized in Shen, the post here specifically

targeted the school. Hart “liked” a photo series which included a news article about his

suspension and a screenshot of the school’s contact information captioned “Call, email, blast this

school for trying to ignore the Second Amendment!!!” R. at 5 (emphasis added). Not only did

Hart “like” this picture, but also “liked” a subsequent photo of comments on the school’s

Picagram account, criticizing their suspension of Hart, captioned “Let’s continue to defend the

Second Amendment. Keep emailing and commenting. Let them know they can’t infringe on the

Constitution!” R. at 5. It was Hart’s “liking” of these pictures and other comments that led one

student to screenshot all the posts and comments that Hart had “liked.” R. at 5. These comments

clearly show Hart showing his support for bombarding the school on his behalf. Hart’s targeting

led to the substantial disruption envisioned in Tinker when:

Within days, news of Jack’s social media conduct had spread, and parents and

students voiced concern about Jack’s behavior, with some saying the conduct

triggered memories of the attempted shooting at the Valentine’s dance. Amid these

concerns, the school principal and other administrators continued to field hundreds of

daily emails and online comments from advocates of the Second Amendment.

R. at 6. As the forecast was not only reasonable, but also actually caused a disruption, the school

was well within its authority reprimand Hart.

By applying the reasonable foreseeability standard, this Court would be applying Tinker in

the digital age and empowering schools to retain control of their school by restricting conduct or

speech that would clearly cause a disruption. Hart, who became the poster-boy for Second

Amendment rights over night, encouraged staunch Second Amendment supports to “march” on

the school, demanding the school overturn his suspension. The school not only properly

32

reprimanded Hart for his actions, but they have a responsibility to do so: “School officials have

an affirmative duty to not only ameliorate the harmful effects of disruptions, but to prevent them

in the first place.” Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir. 2007). Marshall County High

School not only acted within their authority when reprimanding Hart, but fulfilled their

responsibility to teachers and students by preventing disruption and responding to the

incitements.

B. A Sufficient “Nexus” Connected Hart’s Off-Campus Speech with the

Disruption at the School.

Beyond the reasonably foreseeable standard, courts have alternatively applied a

“substantial nexus” standard, requiring there to be a close connection between the cyberspeech

and the disruption that occurred at school. The standard was first used in Kowalski by the Fourth

Circuit, where the court looked at a high school senior’s creation of a Myspace.com webpage

“largely dedicated to ridiculing a fellow student.” 652 F.3d at 567. The court, relying on Tinker,

required a “sufficient nexus” between the off-campus speech and the prohibition or restriction.

Id. at 577. The Fourth Circuit found the student’s speech was not protected by the First

Amendment, simply because she was at home:

Kowalski indeed pushed her computer’s keys in her home, but she knew that the

electronic response would be, as it in fact was, published beyond her home and could

reasonably be expected to reach the school or impact the school environment. . . .

There is surely a limit to the scope of a high school’s interest in the order, safety, and

well-being of its students when the speech at issue originates outside the schoolhouse

gate. But we need not fully define that limit here, as we are satisfied that the nexus of

Kowalski’s speech to Musselman High School’s pedagogical interests was

sufficiently strong to justify the action taken by the school officials in carrying out

their role as the trustees of the student body’s well-being.

Id. at 573. Relying on the sufficient connection between Kowalski’s speech and the disruption it

had on the school’s interests, the Fourth Circuit affirmed the suspension. Id. at 577.

33

To the extent the Court finds that there was no reasonable foreseeability, or that the

reasonable foreseeability standard is the incorrect standard, it should apply the sufficient nexus

standard and find that there was a sufficient connection between Hart’s speech and the disruption

that occurred at school. Under this standard, Hart’s speech had a sufficient nexus to the school

for the school to discipline him.

1. The Court can alternatively adopt the “sufficient nexus” standard

analysis and permit public schools to discipline students for Internet

speech that bears a sufficient causal nexus to disruptions that occur at

the school.

Courts have looked at a variety of factors to determine when there is such a “sufficient

nexus” between the conduct and the school. When considering whether the nexus was sufficient,

this Court should look at three factors: (1) the number of listeners; (2) whether the speech was

targeted at the school; and (3) whether the speech was brought into the school.

Prior to the internet era, this Court considered the number of listeners when determining

whether student’s speech could be disciplined. See Fraser, 478 U.S. at 681, 692 (noting the

assembly was “composed of 600 of his contemporaries”). Lower courts have applied this factor

in modern-age student speech cases originating off campus. Compare Wisniewski, 494 F.3d at

39–40 (focusing on “the extensive distribution of [the student speech] . . . [to] 15 recipients,

including some of [his] classmates, during a three-week circulation period”), with Blue Mountain

Sch. Dist., 650 F.3d at 929 (emphasizing that the student “took steps to make . . . [the speech]

‘private’ so that access was limited to her and her friends”).

Besides the size of the audience, lower courts have upheld off-campus regulation when the

speech was specifically targeted at the school. See Doninger, 527 F.3d at 50 (finding school

could discipline a student when her off-campus blog post “directly pertained to events at” the

school); Kowalski, 652 F.3d at 573 (upholding student discipline when the student’s speech

34

outside of school targeted his classmates); Wisniewski, 494 F.3d at 40 (approving school’s off-

campus regulation when the intended audience was comprised of students). Courts have also

considered to what extent other students can access the speech. Compare Doninger, 527 F.3d at

50 (finding the school’s regulation appropriate where the student’s “intent in writing it was

specifically ‘to encourage her fellow students to read and respond’”), with Blue Mountain Sch.

Dist., 650 F.3d at 929 (holding school’s regulation improper considering that the student, among

other reasons, “took steps to make the speech ‘private’”).

Regardless if the speech was specifically targeted to the school or the school’s audience,

courts have allowed regulation of off-campus speech if it actually reaches the school. See

Boucher, 134 F.3d at 829 (allowing regulation of student speech in “underground newspaper”

that was distributed on campus); LaVine, 257 F.3d at 984 (upholding suspension of student that

brought offensive poem written at home onto campus); Killion v. Franklin Reg’l Dist., 136 F.

Supp. 2d 446, 455 (W.D. Pa. 2001) (applying Tinker analysis even when speech was brought on

campus by unknown third party). But courts have been hesitant to uphold school regulation when

significant time has passed between creation of the speech and the speech brought onto campus.

Porter, 393 F.3d at 615 (holding that two-year gap between the creation of the speech and its

arrival on campus too attenuated to establish a nexus).

Although some commentators have opined24 that the “sufficient nexus” standard is

practically a modified “reasonable foreseeability standard,” there is enough of an area with no

overlap between the two standards to require different tests for different circumstances:

24 See Elizabeth A. Shaver, Denying Certiorari in Bell v. Itawamba County School Board: A

Missed Opportunity to Clarify Students’ First Amendment Rights in the Digital Age, 82 Brook.

L. Rev. 1539, 1595 (2017) (arguing that the Fourth Circuit actually adopted a reasonable

foreseeability standard in Kowalski).

35

However, the overlap is only partial. In some situations, where off-campus speech is

not aimed at a particular school, it may nonetheless be foreseeable that such speech

would reach the campus. For example, a student can create social media content not

aimed at a particular school, but be on a platform where the student has many

connections. In such a situation, it may well be reasonably foreseeable that this

content could spread to a large number of people and reach the school anyway.

Although this would also satisfy the “nexus” approach by creating a link through on-

campus access, the process of arriving at the outcome would be different. Therefore,

the “nexus” and “foreseeability” approaches can provide distinct methods of

determining whether or not Tinker applies to cyberbullying that originates off

campus.

Philip Lee, Expanding the Schoolhouse Gate: Public Schools (K-12) and the Regulation of

Cyberbullying, 2016 Utah L. Rev. 831, 856 (2016). The sufficient nexus standard is necessary to

allow schools to appropriately restrict disruptive speech off-campus from manifestly affecting

on-campus activities. The factors recognized by lower courts elaborate the substantial nexus

standard to a workable baseline that courts can use to determine when the Tinker standard is met,

even off campus.

2. Based on a totality of the circumstances, there was sufficient evidence

to link Respondent’s call to action to the disruption that occurred at

the school.

Applying the factors recognized by lower courts, the Court here should find there was a

sufficient nexus between Hart’s online activity and the school. First, Hart’s activity reached a

substantial amount of people. The first post—containing the school’s contact information and the

caption to “call, email, blast this school”—received 900 likes and fifty-three comments. R. at 5.

That means that Hart’s “like” reached at a minimum 899 people,25 not to mention the individuals

who saw his “like” and did not “like” it themselves. The group that posted the post was also

public group, meaning there was no attempt to keep the information posted private. R. at 5.

25 This accounts for the 899 other “likes” the photo received, besides Hart’s, and assumes that

those who “liked” could have commented as well.

36

Contra Blue Mountain Sch. Dist., 650 F.3d at 929 (considering that the student “took steps to

make the speech ‘private’”). Next, the “liked” posts themselves directly targeted the school. The

first post listed the school’s contact information with a call to action, and the second post was a

screenshot of the school’s social media page, bombarded with comments chastising Hart’s

suspension, with the caption again calling the populace to continue harassing the school. R. at 5.

Those posts clearly target the school by telling the community to continue to harass the school.

Finally, Hart’s “like” actually made it on campus when a student screenshotted the photos and

comments that Hart “liked” and sent those images to the school board. R. at 5. This resulted in

parents and students both voicing their concerns. R. at 6. Hart’s “like” was in no way contained

and could have reached an inordinate amount of people. He openly and clearly signaled his

encouragement of the calls to action made in the public Picagram group. That call was answered

when the school was overloaded, receiving hundreds of daily emails, complaints from parents

and students, and a disrupted environment.

The First Amendment does not protect Hart’s speech merely because it was not tied to a

physical spot on the school grounds; internet speech can never be tied to a particular location.

Under either test, Marshall County High School is within its rights to protect its pupils from

disruptions that would detract the school from its mission or intrude on the students’ own right to

a proper education. This Court should affirm a school’s the discretion to discipline a student’s

behavior in the virtual world when it causes a substantial disruption in the real world.

C. Alternatively, True Threats by a Student Are Not Protected by the First

Amendment.

In addition to the substantial disruption caused by Hart’s speech, as Judge Pinckney

recognized in his concurring and dissenting opinion, Hart’s speech constituted a “true threat.”

The First Amendment does not “ban a ‘true threat.’” Virginia v. Black, 538 U.S. 343, 359 (2003)

37

(quoting Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam)). Although this Court

created the “true threat” exception, it has not explicitly established how to determine whether a

statement is a true threat.

The “true threat” doctrine was first established in Watts v. United States. There, this Court

dealt with a federal statute that prohibited “knowingly and willfully . . . [making] any threat to

take the life of or to inflict bodily harm upon the President of the United States.” 394 U.S. at 709.

At a political rally, Robert Watts was protesting the draft and stated: “I am not going. If they ever

make me carry a rifle the first man I want to get in my sights is L.B.J.” Id. at 707. The Court did

not explicitly define a “threat,” but it did find that Watt’s statement was not a “true” threat

considering several factors, such as the context in which the alleged speech was made, whether

the alleged threat was made in public or in private, the speaker’s intent, whether the alleged

threat was conditional in nature, and the crowd’s reaction to the alleged threat. Id. at 707–08. The

Court ultimately found Watts’ speech to not be “the kind of political hyperbole . . . [that] fits” the

true threats doctrine. Watts, 394 U.S. at 708.

In the wake of Watts and its progeny, lower courts have had to grapple with the proper

approach to determine when speech is a “true threat.” A majority of circuits26 have applied an

objective approach, focusing on whether the speaker “intentionally or knowingly communicated

[the threat] to either the object of the threat or a third person.” Porter, 393 F.3d at 616 (citing

Black, 538 U.S. at 359) (original emphasis). The only requirement is that the speaker knowingly

made the statement, not that he intended to carry out the threat or that he was capable of it. Doe,

26 See Porter v. Ascension Par. Sch. Bd., 393 F.3d 608, 617 (5th Cir. 2004) (adopting an

objective approach); Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 624 (8th Cir. 2002)

(same); United States v. Malik, 16 F.3d 45, 48 (2d Cir. 1994) (same); United States v. Schneider,

910 F.2d 1569, 1570 (7th Cir. 1990) (same); United States v. Orozco-Santillan, 903 F.2d 1262,

1265 (9th Cir. 1990) (same); United States v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992)

(same); United States v. Welch, 745 F.2d 614, 619 (10th Cir. 1984) (same).

38

306 F.3d at 624. A minority of courts27 apply a subjective-intent approach, requiring the speaker

have a subjective intent to intimidate the target before the speech can be qualified as a “true

threat.”

This Court should adopt the objective approach, requiring a two-prong analysis. First, the

Court should require the “threat must be intentionally or knowingly communicated to either the

object of the threat or a third person.” Porter, 393 F.3d at 616; see Doe, 306 F.3d at 624. Second,

the Court should determine whether the audience of the threat could “reasonably conclude that it

expresses a determination or intent to injure presently or in the future.” United States v.

Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996); Lovell v. Poway Unified Sch. Dist., 90 F.3d 367,

369 (9th Cir. 1996). The two-prong analysis would ensure that a school can discipline threats

made at its institution, teachers, and students, without requiring the damage to actually occur

before being able to prevent it. Because the primary concern in true threat cases deals primarily

with the possibility28 of unlawfulness, the objective approach appropriately allows administrators

to curb dangerous incitements, such as Hart’s, before actual damage occurs.

1. This Court should adopt the objective approach used by the majority

of circuit courts to determine the existence of a true threat.

The “true threat” doctrine is properly analyzed under an objective approach, which

considers “whether an ordinary, reasonable recipient who is familiar with the context of the

[communication] would interpret it as a threat of injury.” United States v. Turner, 720 F.3d 411,

27 See United States v. Magleby, 420 F.3d 1136, 1139 (10th Cir. 2005) (adopting a subjective

approach); United States v. Cassel, 408 F.3d 622, 631 (9th Cir. 2005) (same).

28 See Elonis v. United States, 135 S. Ct. 2001, 2016 (2015) (“A threat may cause serious

emotional stress for the person threatened and those who care about that person, and a threat may

lead to a violent confrontation.”) (Alito, J., concurring and dissenting).

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420 (2d Cir. 2013). The objective approach protects against speech inciting unlawfulness, even if

the speaker never acts himself. Id.

In United States v. Turner, the Second Circuit applied the objective approach to statements

made by a talk show radio host, revealing the name, faces, and location of three United States

Circuit Judges he disapproved of and “deserve[d] to be killed.” 720 F.3d at 414. Turner was

charged under a no-threat statute, similar to the one in Watts, for “threaten[ing] to assault and

murder three United States judges with the intent to impede, intimidate, and interfere with such

judges while engaged in the performance of official duties and with intent to retaliate against

such judges on account of the performance of official duties.” Id. The Second Circuit found that

Turner “did not merely advocate law violation or express an abstract desire for the deaths of [the

Judges]. He posted photographs, work address and room numbers for each of the judges, along

with a map and photograph of the courthouse.” Id. at 423. The court then affirmed his

conviction, finding a reasonable person could find his actions as a true threat. Id. at 421–22.

By requiring an objective approach, instead of a subjective approach, the Court would

protect not only against an actual threat of unlawfulness that will happen, but also from the fear

the threat can cause. Not only would it prevent the fear that a threat can cause, but it would be a

more workable standard. A subjective approach would require protracted inquiry into whether

there was actual intent before the school can act. “School administrators must be permitted to

react quickly and decisively to address a threat of physical violence . . . without worrying that

they will have to face years of litigation second-guessing their judgment . . . .” Ponce v. Socorro

Indep. Sch. Dist., 508 F.3d 765, 772 (5th Cir. 2007). A subjective approach would leave school

administrators second guessing, while an objective approach allows the school to react at a

40

moment’s notice. As such, this Court should afford schools the deference they deserve when

fulfilling their mission and allow them to apply the objective approach to perceived true threats.

2. Under the objective approach, Hart’s calls to action were a “true

threat” because he knowingly communicated the call in a way that

would lead to a serious risk of interference at the school.

Hart’s speech in this case constitutes a “true threat” under the objective approach. An

ordinary, reasonable recipient who is familiar with the context of the communication would

interpret Hart’s “likes” as communications of threat of injury. As in Turner, Hart’s speech did

not merely “advocate law violation or express an abstract desire” for disruption at the school but

affirmed information encouraging others to harass the school. Third parties bombarded and

harassed the school with hundreds of emails a day. Marshall High School’s reprimand of this

true threat does not run afoul of the First Amendment as schools may prevent this kind of speech

that objectively could cause a substantial disruption in the school without establishing Hart’s

subjective intent to compel the result. Hart incited others to commit unlawful acts on his behalf,

and those calls were answered to the detriment of the school’s day-to-day operations.

CONCLUSION

This Court should REVERSE the judgment of the United States Court of Appeals for the

Fourteenth Circuit.

Respectfully submitted,

_______________________________

ATTORNEYS FOR PETITIONERS

APPENDIX TABLE OF CONTENTS

Page

APPENDIX “A”: Marshall County High School Social Media Policy ................................... A-1

A-1

APPENDIX “A”

Marshall County High School Social Media Policy

Students must at all times respect their school, teachers and other school officials, and fellow

students. Students may not use the internet to target the students or the school. This includes the

use of foul language, threatening language and inappropriate gestures aimed at the student body

or the school environment. There will be no tolerance for any negative information regarding the

school or the student body shared on the internet.