The U.S. Court of Appeals for the First Circuit affirmed a public school’s punishment of students for speech posted on social media. It was unclear from the lower court proceedings whether the students had posted to social media while on campus or off campus. EFF had urged the court to draw a distinction between on- and off-campus social media speech, and to make clear that schools cannot reach into students’ private lives to punish them for speech that they utter outside of school, even if it’s online. Although the court declined to do that in light of a recent Supreme Court decision, the First Circuit’s ruling is limited to a narrow class of speech that schools have a heightened interest in policing: speech that infringes on the rights of others, such as “serious or severe bullying or harassment.”
The case, Doe v. Hopkinton Public Schools, involved a student, “Robert Roe,” who was bullied by teammates on his hockey team. The school punished a number of those teammates—and also the two plaintiffs in this case, students who made derogatory comments about Roe behind his back on the social media app Snapchat. The court found that the plaintiffs, by participating in the group chat about Roe, had “actively encouraged” other participants to directly bully Roe and so the plaintiffs’ comments constituted a violation of the Massachusetts state anti-bullying law.
Schools do, of course, have a significant interest in protecting their students from bullying and harassment by their peers. In a recent case, Mahanoy Area School District v. B.L., the Supreme Court held that schools have less leeway to police students’ speech when that speech occurs off campus, but that certain buckets of speech may warrant punishment no matter where it occurs:
- serious or severe bullying or harassment targeting particular individuals;
- threats aimed at teachers or other students;
- the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; or
- breaches of school security devices, including material maintained within school computers.
In light of Mahanoy and the important interest in preventing bullying, the First Circuit’s conclusion that Hopkinton Public Schools could punish students’ social media speech that contributed to bullying, even if some of the speech might have been posted while off campus, is not a surprise.
However, we are disappointed that the First Circuit did not take this opportunity to make explicit that schools cannot generally police the speech that students utter in their private lives outside of school, and that the exception for bullying is just that: a narrow and limited exception, per the Supreme Court in Mahanoy.
As to whether participating in a group chat or otherwise communicating with those who directly bully rises to the level of “active encouragement,” we are heartened that the court stated: “[T]here may be circumstances in which encouragement is so minimal or ambiguous, the chain of communication so attenuated, or knowledge of direct bullying so lacking, that a school's punishment of certain speech would be unreasonable.”
We hope that the First Circuit and other courts will clarify that, while schools may punish students who engage in bullying or harassment wherever it occurs, students are generally free to speak freely after school and on weekends, in their private lives, without having to fear that their schools may reach in and punish them for expressing themselves.
