Two High School Hockey Players’ First Amendment Defense to Cyberbullying Iced by the First Circuit Court of Appeals

Jan 14, 2022

By Professor Robert J Romano, JD, LLM, St John’s University, Senior Writer

In June 2021, the U.S. Supreme Court, in the matter of Mahanoy Area School District vs. B.L.[1], issued a ruling regarding a high school student’s First Amendment right to free speech in this, the digital age. In its decision, the U.S. Supreme Court held that a public high school infringed the First Amendment rights of one of its students when it disciplined her for profane, off-campus language. Apparently, the student, a cheerleader, was removed from the cheerleading squad after posting a Snapchat[2] that school officials regarded as “negative, disrespectful, and demeaning”, even though the posting occurred during weekend hours and not on school premises.[3] That Snapchat post, to put the matter into context, was a photo of said cheerleader and her friend giving the middle finger, accompanied by text which read ‘fuck school fuck softball fuck cheer fuck everything’ superimposed over the photo.[4]

The U. S. Supreme Court, in applying the 1969 case of Tinker vs. Des Moines Indep. Community Sch. District,[5] held that when a student’s speech occurs ‘off campus’ and is done by using modern electronic technology or social media, schools have ‘less leeway’ to regulate such speech than they do when that speech takes place during school hours or at an afterschool sponsored program.[6] Specifically, the U.S. Supreme Court determined since the ‘speech’ happened on social media, from an off-campus location, did not target any specific students or school staff, and was limited to a single, vulgarity-laced rant about the school’s cheerleading program, that the Mahanoy Area School District violated the student’s First Amendment rights.[7] Interestingly, however, the Court left ‘for future cases’ the determination as to “where, when, and how … the speaker’s off-campus location will make the critical difference”[8] and suggested several areas in which discipline for off-campus speech by students may still be appropriate under the First Amendment. The Court even advised that these areas could include, but were not limited to, speech that involves “serious or severe bullying or harassment targeting particular individuals.”[9]

This now brings us to the matter of Doe v. Hopkinton Public Schools,[10] wherein, on November 19, 2021, the U.S. Court of Appeals for the First Circuit issued a federal appellate decision which extended the holding in Mahanoy to ‘off campus’ speech. Per the facts as laid out by the Court in the Doe matter, eight members of the school’s hockey team, again using the social media platform Snapchat, humiliated and demeaned one of their teammates. That humiliated and demeaned teammate filed a complaint with his school alleging that those team members violated the School’s anti-bullying policy by taking photos and video recordings of him in the locker room without his consent and that those video recordings were circulated amongst other students.

Upon receiving the student’s complaint, the School’s administration initiated an investigation wherein it concluded that “there was a preponderance of the evidence which showed that the eight students bullied and harassed the other player” and that such conduct “caused emotional harm to, created a hostile environment for him during school-sponsored events and activities and infringed on his rights at school.”[11] As a result of these findings and in accordance with Massachusetts Anti-Bullying law,[12] all eight team members who engaged in the bullying acts were suspended from the hockey team for the remainder of the season.[13] In addition, two of the players, Ben Bloggs and John Doe, the plaintiffs/appellants in Doe v. Hopkinton Public Schools matter, were given five and three day school suspensions. After being suspended from both the hockey team and school, Ben Bloggs and John Doe decided to use the courts as a way to continue bullying their teammate by filing a federal lawsuit claiming that the Hopkinton Public School District and its administrators violated their right to free speech as guaranteed under the First Amendment and Massachusetts Student Speech statute.[14] 

In order to prevail on a right to speech claim, plaintiffs, in this case Bloggs and Doe, have to prove that (a) they were engaged in constitutionally protected conduct, (b) they were subjected to adverse actions by the school, and (c) the protected conduct was a substantial or motivating factor in the adverse actions.[15]

Here, Bloggs and Doe argue that any and all speech involving their teammate is protected by the First Amendment since they only engaged in minimal, ‘non-offending’ conduct and therefore, the School’s administrators couldn’t have reasonably concluded that their participation in the group was connected to the direct bullying of their teammate.[16]

The U.S. Supreme Court has long held that public schools have a special interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”[17] The Supreme Court has also been clearthat schools have a significant interest in regulating “serious or severe bullying or harassment” that invades the rights of others.[18] This, coupled with the fact that Courts have traditionally deferred to “school administrators’ decisions regarding student speech, led to the Appeals Court finding that free speech rights of Bloggs and Doe were not violated and that the School’s administrators were justified in determining that the conduct involved “(a) caused emotional harm to their teammate, (b) created a hostile environment for him during school-sponsored events and activities and (c) infringed on his rights at school.”[19]

The Appeals Court, in rejecting Bloggs’ and Doe’s minimal, non-offending role argument, found that the School’s administrators, after a thorough investigation, “reasonably concluded” that they, Bloggs’ and Doe’s, acts “emboldened the bullies and encouraged others in the invasion of [the target’s] rights”.[20] The Court found that “speech that actively encourages … direct or face-to-face bullying conduct is not constitutionally protected” and that “the test is objective, focusing on the reasonableness of the school’s response, not the intent of the student.”[21] Therefore, the Appeals Court held that conduct or speech that actively and pervasively encourages bullying by others or fosters an environment in which bullying is acceptable and actually occurs – as in this case –is not protected under the First Amendment.[22]

The Appeals Court also concluded that Bloggs’ and Doe’s speech was not protected under the Massachusetts Student Speech statute because the State’s Anti-Bullying law contains specific language proscribing conduct that “infringes on the rights of the victim at school.”[23] The Court determined that to interpret the Student Speech Statute in any way would conflict directly with the Anti-Bullying Law, rendering it meaningless.[24]

The U.S. Court of Appeals for the First Circuit’s ruling is significant since it confirms that there are some occasions where a student’s ‘off-campus’ speech can be the basis for disciplinary action which will not be considered a violation of that student’s First Amendment rights. As suggested by the Mahanoy Court, whether that speech may be regulated depends on the specific facts of the case – such as whether itconstitutes a“threat of harm, harassment, or if it infringes on the rights of another student.”[25] Therefore, based upon this ruling, an individual may not be able to stop someone’s ‘off-campus’ bullying – but the Courts can.

[1] Mahanoy Area School District vs. B.L, 141 S. Ct. 2038 (2021).

[2] Snapchat is a social media smartphone app that allows users to post images that are accessible only for short periods of time—ranging from one second to 24 hours—and are self-deleting.

[3] Mahanoy, S. Ct. 2038 (2021).

[4] Id. and

[5] Tinker vs. Des Moines Indep. Community Sch. District, 393 U.S. 503 (1969).

[6] Mahanoy Area School District vs. B.L, 141 S. Ct. 2038 (2021).

[7] Id.

[8] Id.

[9] Id.

[10] Doe v. Hopkinton Public Schools, No. 20-1950 (1st Cir. 2021).

[11] Id.

[12] Mass. General Statute G.L. c. 71, §37O.

[13] Doe v. Hopkinton Public Schools, No20-1950 (1st Cir. 2021).

[14] Mass. General Statute G.L. c. 71, § 82.

[15] D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 43 (1st Cir. 2012).

[16] Doe v. Hopkinton Public Schools, No. 20-1950 (1st Cir. 2021).

[17] Tinker, 393 U.S. at 513.

[18] Mahanoy, 141 U.S. at 2045.

[19] Doe v. Hopkinton Public Schools, No20-1950 (1st Cir. 2021).

[20] Id.

[21] Id.

[22] Id.

[23] Id.


[25] Mahanoy, 141 U.S. at 2045.

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