It’s not as bad a feeling in your gut as when a Supreme Court opinion begins with “Justice Alito delivered the opinion of the Court,” but it’s damn close when there’s a dissent by “JUSTICE ALITO, with whom JUSTICE THOMAS joins.” And he’s right, as is the case in L.M. v. Town of Middleborough.

The Supreme Court denied certiorari, leaving the First Circuit’s decision intact. The facts of the case are undisputed, and it raises a basic First Amendment free speech issue for a public school student that should have been easily resolved by application of the seminal Tinker v. Des Moines Independent Community School District, holding that “public school officials may not restrict a student’s freedom of speech unless his behavior ‘materially disrupts classwork
or involves substantial disorder or invasion of the rights of others.’”

In Tinker, students wore black armbands in protest of the war in Vietnam. The Court distinguished the school district’s fear that this protest would possibly disrupt school operations from actual interference.

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.

The First Circuit in L.M. held otherwise.

This case presents an issue of great importance for our Nation’s youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive. In this case, a middle school permitted and indeed encouraged student expression endorsing the view that there are many genders. But when L. M., a seventh grader, wore a t-shirt that said “There Are Only Two Genders,” he was barred from attending class. And when he protested this censorship by blocking out the words “Only Two” and substituting “CENSORED,” the school prohibited that shirt as well.

The shirt was worn in reaction to the district’s taking an ideological position with regard to gender identity.

Inside and outside the classroom, NMS promotes the view that gender is a fluid construct and that a person’s self-defined identity—not biological sex—determines whether that person is male, female, or something else. NMS also encourages students to embrace and express this viewpoint, including during the school’s “PRIDE Spirit Week.”

L.M. disputed this view, holding the belief that “‘basic biology’ has led him to believe that ‘there are only two sexes, male and female, and that a person’s gender . . . is inextricably tied to sex.’”

First Circuit found that this case was distinguishable from Tinker.

The court acknowledged that L. M.’s shirts—like the black armbands in Tinker—expressed his views “passively, silently, and without mentioning any specific students.” 103 F. 4th, at 860. But the court saw a material difference between L. M.’s speech and that of the students in Tinker. According to the First Circuit, L. M.’s expression—unlike the speech in Tinker—“demean[ed] characteristics of personal identity, such as race, sex, religion, or sexual orientation” that “other students at the school share.”

Accordingly, the circuit fashioned a two-prong test.

[S]chool officials may bar passive and silently expressed messages by students at school that target no specific student if: (1) the expression is reasonably interpreted to demean one of those characteristics of personal identity, given the common understanding that such characteristics are unalterable or otherwise deeply rooted and that demeaning them strike[s] a person at the core of his being; and (2) the demeaning message is reasonably forecasted to poison the educational atmosphere due to its serious negative psychological impact on students with the demeaned characteristic and thereby lead to symptoms of a sick school—symptoms therefore of substantial disruption.”

Despite the rhetorical rationalization embedded in the new rule that would permit a school to prohibit controversial speech that “strikes a person at the core of his(?) being,” was the elevation of “personal identity” as uniquely personally offensive materially different than protesting a war where other students may have had a brother come home in a box?

Controversial speech is offensive by its nature, which is the reason why it mandates protection. If it offended no one, no protection would be needed. That’s the point.

“[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972). Otherwise, the government could purge entire topics from the public discourse. And as our cases recognize, these freedom-of-speech harms become “all the more blatant” when the government “targets not subject matter, but particular views taken by speakers on a subject.”

The unspoken distinction here is that protests against the Vietnam war in Tinker were in furtherance of a liberal cause. Here, L.M.’s t-shirt message was antagonistic to the progressive ideology of fluid gender identity. Is free speech under the First Amendment only protective of expression when it supports one side, but not the other? Are only “popular” controversial expressions permitted, but not unpopular?

Unsurprisingly, the viewpoint-neutrality rule also applies to student speech. Students do not relinquish their First Amendment rights at school, see Tinker, 393 U. S., at 506, and by extension, a school cannot censor a student’s speech merely because it is controversial, see Mahanoy, 594 U. S., at 190. As Tinker itself made clear, the viewpoint neutrality rule plays an important role in safeguarding students’ First Amendment right to express an “unpopular viewpoint” at school.

Interestingly, Justice Clarence Thomas joined Justice Alito’s dissent, not because he’s an ardent supporter of Tinker. He’s not, and believes it should be overruled. Rather, his position is that until Tinker is overruled and schools possess the power to silence students at will, circuit courts should be held to the Tinker rule. That Justice Thomas happens to have the same t-shirt in his drawer at home has nothing to do with it.