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Can a school discipline students for any off-campus speech, including speech on social media?

The Supreme Court of the United States heard arguments in April in the Mahanoy Area School District v. B.L. case (audio is here).

The Mahanoy case is about a 14-year-old high school cheerleader, who failed to make the cheerleading varsity teams of her school and vented her frustration on social media in no uncertain terms. She posted on Snapchat a photo of her and a friend both “flipping the bird” with the text, “fuck school fuck softball fuck cheer fuck everything” superimposed on the photo. The snap post was made on a weekend, the picture had not been taken on school’s premises, and did not mention or name the high school.

The cheerleading squad to which the teenager belonged had the following for policy:

Please have respect for your school, coaches, teachers, and other cheerleaders and teams. Remember, you are representing your school when at games, fundraisers, and other events. Good sportsmanship will be enforced, this includes foul language and inappropriate gestures…. There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.

The teenager was suspended from the squad for a year because she had been “disrespectful” when posting the Snap message.

She sued the school district claiming a violation of her First Amendment rights. The United States District Court for the Middle District of Pennsylvania granted summary judgment in her favor, ruling that the school had violated her First Amendment rights. The Third Circuit agreed and affirmed, holding that Tinker does not apply to off-campus speech.

The School District then filed a certiorari petition to the Supreme Court, which was granted. This is an important case as the Court will decide whether a school can discipline students for any off-campus speech, including speech on social media.

The Tinker 1969 case: should it apply today for social media speech?

The question presented to the Supreme Court is whether its “Tinker v. Des Moines Independent Community School District case, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.”

Indeed, the Court held in is 1969 Tinker case that “[s]chool officials do not possess absolute authority over their students.” For the Court, students or teachers did not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

However, Tinker provided a narrow exception that student conduct, “in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others” is not protected by the First Amendment.

In Tinker, petitioners were teenagers who had planned to wear black armbands at school to protest the Vietnam war. The school had then adopted a policy banning wearing armbands at school. Petitioners had nevertheless worn armbands and had been suspended. The students who gave their name to this famous case, Mary Beth Tinker and John Tinker, filed an amici curiae brief in the Mahanoy case in support of Respondents (the teenager and her parents).

Law professors Bambauer, Bhagwat and Volokh’s Amici Curiae Brief

Law professors Bambauer, Bhagwat and Volokh filed an amici curiae brief in support of Respondents, explaining that they were concerned that extending Tinker “to all off-campus student speech… expected to reach campus… would empower schools to punish students for expressing unpopular or controversial viewpoints.”

They argued that, while student speech outside school activities should generally be fully protected by the First Amendment, the “schoolhouse gate” is no longer only physical, but is also virtual. This argument is acutely understood in 2021 after more than a year where students were taught online, attending classes from home because of the pandemic.

As all students‘s online speech is expected to reach campus, expanding Tinker to online speech “would be an enormous expansion of schools’ power to censor the speech of their students.” They propose to apply Tinker to student speech outside the school only in certain cases, such as when students say “cruel personal things to or about each other, especially online,” that is, bullying or harassment. Disruptive speech in a school-sponsored forum could be disciplined as well.

Arguments of the Petitioners

During the arguments, Petitioners’ counsel mentioned that for state law or policies in all fifty states, including statutory law in twenty-six states , “the standard for bullying is severe, persistent harassment that interferes, actually prevents that child from getting an education.” For instance, New York law defines “harassment” and “bullying” as “creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying,” that would, inter alia, “unreasonably and substantially interfere with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being” or “reasonably cause or would reasonably be expected to cause a student to fear for his or her physical safety.”

Petitioners argue schools can regulate off campus speech if it is directed at the school and the audience is the school.

During the oral argument, Justice Thomas asked Petitioners’ counsel whether the place where a student posts a social media post, at school or at home, does make a difference for applying Tinker. Counsel stated that it does not make a difference.

Justice Breyer said that the teenager’s speech, while inelegant, had not caused a material and substantial disruption, and quipped that, if swearing off campus did cause such disruption, “every school in the country would be doing nothing but punishing.”

Justice Alito said that he had no idea of the meaning of speech “targeting the school.” Justice Sotomayor asked Petitioner’s attorney whether a student could be punished for cursing at her home or on the way to school (no was the answer). Justice Sotomayor added that she had been told by her clerks “among certain populations, a certain large percentage of the population, how much you curse is a badge of honor,” asking how the line would be drawn if such language would target the school.

Arguments of the Respondents

Counsel for Respondents argued “expanding Tinker would transform a limited exception into a 24/7 rule that would upend the First Amendment’s bedrock principle and would require students to effectively carry the schoolhouse on their backs in terms of speech rights everywhere they go.” If that would be the case, that “kids won’t have free speech, period.”

He further argued that “the blunt instrument of Tinker” is not needed to address off-campus behavior issues because the First Amendment allows regulating threats, bullying, harassment, and cheating, if the response to these issues is consistent with the First Amendment.

If the speaker is “under the supervision of the school” the school can prevent the student to swear or even publish an article about teen pregnancy, but if the student is at home, the school cannot regulate the student’s speech. Counsel for Respondent further argued that Tinker means that the school can silence a speaker if the speech is going to lead to disruption. However, Tinker cannot be applied to out-of-school speech just because listeners in school might be disrupted by this speech.

Justice Sotomayor asked him whether a school would be powerless to regulate out-of-school speech directed at a student being told “you are so ugly, why are you even alive.” Such speech is not a true threat, it is not harassment if they are just speaking. Counsel for Respondents answered that the school could regulate that conduct “if it satisfies a First Amendment, permissible definition of bullying,” adding that they thought that permissible definition of bullying, under the First Amendment could be “severe or pervasive interpersonal aggression that interferes with access to education.” However, if a school code would prevent any speech that would cause emotional harm, then it would not be consistent with the First Amendment. Judge Sotomayor was not convinced, stating that saying “You are so ugly, why are you around” is not aggressive.

Both Justice Kagan and Justice Barrett asked about regulating cheating, Justice Kagan giving as example a student emailing answers to geometry homework from home. Counsel for Respondents answered that cheating is conduct, not speech , and thus could be regulated, as Giboney v. Empire Storage and Ice Co. allows prohibiting speech integral to prohibited conduct (this was a case about picket lines).

The case is important as the Court will decide whether a student can be disciplined for any off-campus speech, including speech on social media. It is doubtful that the Court will hold that schools have such rights, as doing so would allow schools to have a right to punish students for expressing their opinions, as long as the intended public is the school. A decision should be announced soon.

Image courtesy of Flickr user Pete, Public Domain.

We all root for a single conceptual separability test

On 2 May 2016, the U.S. Supreme Court agreed to answer this question: “[w]hat is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act”? The answer is likely to impact the U.S. fashion industry, as it may make copyright protection of designs easier or more difficult.

Clothes cannot be protected by copyright in the U.S. because they are un-copyrightable useful works, but some of their features or elements may be protected if they can be identified separately and exist independently of the utilitarian aspect of the garment. However, the circuit courts are using different tests to decide whether a particular feature can be conceptually separated from the useful article and thus protected by copyright.

Now, an ongoing dispute between two cheerleader uniform companies over whether the designs adorning uniforms can be protected by copyright will allow the Supreme Court to unify the conceptual separability test and provide clearer guidelines to designers seeking to protect at least some features of the clothes they create.

Varsity Brands (Varsity) designs, manufactures and sells cheerleading uniforms. It registered its copyright in five two-dimensional designs featuring various combinations of color blocks and stripes, some forming chevrons. In 2010, competitor Star Athletica (Star) published a catalog of cheerleading uniforms which Varsity believed to be infringing of its designs. Varsity filed a copyright infringement suit in the Western District Court of Tennessee against Star, which moved for summary judgment, claiming that the pictorial, graphical or sculptural elements of Varsity’s designs were not physically or conceptually separable from the utilitarian functions of the cheerleading uniforms.

Indeed, while §102(a)(5) of the Copyright Act expressively protects pictorial, graphic and sculptural works, useful articles are not protected by copyright. §101 of the Copyright Act defines a useful article as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” However, §101 of the Copyright Act also states that a useful article may be protected if it “incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

On 1 March 2014, the Western District Court of Tennessee entered summary judgment in favor of Star, finding that the aesthetic features of the uniforms had merged with their functional features and were thus not conceptually separated from the utilitarian uniforms. Varsity appealed to the Sixth Circuit, which reversed the judgment. Star then filed a petition for certiorari to the Supreme Court, which was granted.

Physical separability

In order to find out whether a particular design which is part of a useful article can nevertheless be protected by copyright, courts determine if the design is separable, whether physically or conceptually, from the utilitarian aspects of the article or sculptural work.
§ 924.2(A) of the Copyright Office Compendium defines physical-separability as meaning “that the useful article contains pictorial, graphic, or sculptural features that can be physically separated from the article by ordinary means while leaving the utilitarian aspects of the article completely intact.” This stems from the 1954 Mazer v. Stein Supreme Court case, where a statuette which served as a lamp base was held to be copyrightable.

Conceptual separability

However, it is often not possible to physically separate a design from the utilitarian article, and thus courts also use a conceptual separability test. However, there is not just one separability test. Petitioner’s brief to the Supreme Court notes that there are nine conceptual separability tests, and that the Ninth Circuit rejected all of them in our case to create a tenth one.

For instance, the Second Circuit uses the Kieselstein-Cord test and checks whether the artistic features are “primary” and the utilitarian features “subsidiary.” The Seventh Circuit uses the aesthetic influence test, first applied in Pivot Point v. Charlene Products, Inc., where conceptual separability exists if the elements at stake “reflect the independent, artistic judgment of the designer.”
Law professors weighted in on the issue as well. For instance, Professor Paul Goldstein proposed a test to find out whether “a pictorial, graphic or sculptural feature incorporated in the design of a useful article is conceptually separable if it can stand on its own as work of art traditionally conceived, and if the useful article in which it is embodied would be equally useful without it.” Professor David Nimmer proposed the marketability test, where “conceptual severability exists when there is any substantial likelihood that even if the article had no utilitarian use, it would still be marketable to some significant segment of the community simply because of its aesthetic qualities.”

Varsity had unsuccessfully argued in front of the federal district court that because it sketches uniform designs independently of functional influences, the designs are conceptually separable from the utilitarian features of the uniforms, and thus protected by copyright under the Seventh Circuit’s aesthetic influence test. Instead, the district court found the Second Circuit Jovani Fashion Inc. v. Fiesta Fashions case persuasive, where the court had found the designs of prom dresses not protectable by copyright, because the decorative choices made to create the dresses had merged with their function of covering the body in an attractive way. The Second Circuit noted that the “design elements are used precisely to enhance the functionality of the dress as clothing for a special occasion.” Similarly, the District Court found in Varsity, citing Jovani, that a cheerleading uniform, just like a prom dress, is “a garment specifically meant to cover the body in an attractive way for a special occasion” and concluded that “a cheerleading uniform loses its utilitarian function as a cheerleading uniform when it lacks all design and is merely a blank canvas.”

The Sixth Circuit conceptual separability test

The Sixth Circuit created a five-part test to find whether a particular design is copyrightable. First, the court must find out whether a design is a pictorial, graphic or sculptural work. Such was the case here. Then then court must find out if the design is the design of a useful article. Such was the case here as well. Thirdly, the court must find out “[w]hat are the utilitarian aspects of the useful article.” The Sixth Circuit found that the function of the designs was to decorate the uniforms, noting that it is “well established” that fabric designs are protected by copyright. The fourth part of the test asks whether the viewer of a design can identify the pictorial, graphic or sculptural features separately from the utilitarian aspects of the useful article. The Sixth Circuit answered affirmatively, noting that “[t]he top and skirt are still easily identified as cheerleading uniforms without any stripes, chevrons, zigzags or color-blocking.” Finally, the fifth part of the test asks whether the design features exist independently of the utilitarian aspects of the useful article. The Sixth Circuit answered affirmatively, as the designs of the uniform are “wholly unnecessary to the performance of the garment’s ability to cover the body, permit free movement and wick moisture.”

The Sixth Circuit concluded that because the graphic features of Varsity’s designs can be identified separately and are capable of existing independently of the utilitarian asserts of the uniforms, they can be protected by copyright. It gave as an example the famous Mondrian dress created by Yves Saint Laurent, and noted that “the graphic features of Varsity’ cheerleading-uniforms designs are more like fabric design than dress design.”

Toward a single conceptual separability test

It is likely that the Supreme Court will coin its own conceptual separability test, which will then have to be used by all the courts. The fashion industry has much at stake in this case, as such a test may help designers to claim copyright protection for clothes and other useful works, such as handbags or shoes, or could make claiming copyright protection even more difficult.

This article was first published on the TTLF Newsletter on Transatlantic Antitrust and IPR Developments published by the Stanford-Vienna Transatlantic Technology Law Forum.

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