The First Circuit Court of Appeals Holds That “Off Campus” Cyberbullying by Students can be a Basis for Discipline without Violating the First Amendment or the Massachusetts Student Speech Statute

This past June the Supreme Court issued a landmark decision regarding student speech rights in the digital age. In Mahanoy Area Sch. District v. B.L., No. 20-255 (2021), the Court applied the half-century-old decision in Tinker v. Des Moines Indep. Community Sch. District, 393 US 503 (1969), which governs student speech rights under the First Amendment, to student speech that occurs “off campus”/remotely by using modern electronic technology/social media. The Court held that schools have “less leeway” to regulate such speech than they do regarding speech that takes place in the school or during school programs. The Court therefore ruled that the school district had violated a student’s rights under Tinker when it suspended her for a post on Snapchat which took place at a remote location, did not target any specific students or school staff, and was limited to a vulgarity-laced rant about the school’s cheerleading program. In its opinion, however, the Mahanoy Court left “for future cases” the determination as to “where, when, and how … the speaker’s off-campus location will make the critical difference” and suggested several areas in which discipline for off-campus speech by students may still be appropriate under the First Amendment. These include speech that involves “serious or severe bullying or harassment targeting particular individuals”.

The United State Court of Appeals for the First Circuit has now issued the first federal appellate decision in the country applying Mahanoy to “off campus” speech. On November 19, 2021, the court decided Doe v. Hopkinton Public Schools, No. 20-1950 (1st Cir. 2021), a case in which attorney John Foskett of Valerio Dominello & Hillman LLC worked with the National Association of School Boards to file an amicus brief.

In Doe, several members of a Snapchat group and the school’s hockey team had demeaned another student in Snapchat posts and at team events, causing the student to refuse to try out for another sport, to withdraw from a chosen class, and ultimately to transfer from the school. Suspensions ensued based on violation of the Massachusetts Anti-Bullying law, G.L. c. 71, §37O. Two students who had only been involved in the “off campus” Snapchat posts filed suit claiming a violation of their speech rights under the First Amendment and under the Massachusetts Student Speech statute, G.L. c. 71, § 82. The district court rejected their claims and, in its decision on appeal, the Court of Appeals has affirmed the judgment and has upheld the discipline.

Applying Mahanoy’s interpretation of Tinker, the Doe court ruled that “schools have a special interest in regulating speech that involves ‘the invasion of the rights of others’” and that “[t]his pedagogical interest remains even in off-campus circumstances.” The court distinguished the “general statement of discontent” in Mahanoy, finding it “qualitatively different from bullying that targets and invades the rights of an individual student.” The court next rejected the students’ argument that their minimal role of merely posting on the Snapchat site immunized their conduct. Pointing out that bullying is often a group activity, the court held that the school “reasonably concluded” that the plaintiffs’ activity “emboldened the bullies and encouraged others in the invasion of [the target’s] rights”. It ruled that “speech that actively encourages … direct or face-to-face bullying conduct is not constitutionally protected” and that “[t]he test under Tinker is objective, focusing on the reasonableness of the school’s response, not the intent of the student.”

The plaintiffs also claimed that their speech was protected under G.L. c. 71, § 82 because that statute uses language suggesting that only speech that “disrupts” the school may be regulated, which is similar to language that was used in Tinker. The court disagreed. It pointed out that the Massachusetts statute was enacted well before adoption of the bullying statute in § 37O and that the latter contains additional language that also was used in Tinker, proscribing conduct that “‘infringes on the rights of the victim at school’”. The court refused to interpret § 82 in a way such that it would “conflict directly with” § 37O or that would render the bullying law “meaningless.”

Doe is significant because it is the first federal appellate decision in the country that addresses “off campus” speech by students in light of the Supreme Court’s Mahanoy ruling. Importantly, it confirms that at least some such “off campus” speech can be the basis for student discipline without violating the First Amendment. As suggested in Mahanoy, whether that speech in a given situation may be regulated will depend to a great extent on the specific facts – such as whether it sufficiently constitutes a “threat of harm”, “harassment”, or “infringes on the rights” of another student. Administrators should consult with school district counsel when these issues arise.

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This update is provided for informational purposes only and should not be considered legal advice.