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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,
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