In the recent decision entitled Doe v. Hopkinton Public Schools, the U.S. Court of Appeals for the First Circuit rejected students’ contention that posting abusive and embarrassing video of another student online was protected speech. The student members of the high school hockey team sued the Hopkinton (Mass.) school district, the superintendent of schools, and the high school principal, and argued they were wrongfully disciplined by the high school. Some students photographed and video-recorded a fellow member of the team and his family on many occasions, without his permission, and then shared images and demeaning comments to a small group on the Snapchat social media application.

The offensive Snapchats included expletive-laced comments and reactions regarding the teammate’s appearance, voice, anatomy and family members. A complaint was made to the school pursuant to the Massachusetts Bullying Prevention and Intervention statute, Mass. Gen. Laws. Ch 71, §§ 37H and 37O. An investigation determined that the victim had suffered numerous acts of bullying as defined both by law and the district’s Anti-Bullying Policy. Moreover, the victim experienced being excluded, embarrassed, and feeling bullied by the unauthorized sharing of his and his family’s images on social media. The investigation further determined that the hockey team members were aware of, encouraged, joined, and participated in the bullying. These activities occurred in the locker room, at school, and on bus rides to away hockey games and later shared via the internet. The involved students, including those who did not confront the victim in person but simply joined in offensive online commenting, were suspended from school.

Several of the disciplined students filed a lawsuit in U.S. District Court in Boston alleging that the school district had violated their rights to freedom of speech and freedom of association (including the right to associate in the Snapchat group and share offensive material) under state and federal law. U.S. District Court Judge William G. Young rejected the claims and dismissed the students’ case against the Hopkinton defendants.

On appeal to the First Circuit Court of Appeals, the students contended that sending and discussing “private messages” among friends over the Snapchat platform was a constitutionally-protected activity and that the school district unlawfully interfered with their rights. The First Circuit rejected that bullying behaviors were protected by the First Amendment to the U.S. Constitution. The Court accepted the conclusions by the school district that the offensive speech and Snapchat participation violated school policy and state law and were causally connected to other hockey players’ active bullying of the victim. The court noted that “Children often bully as a group. The children who stand on a sidewalk and cheer as one of their friends shakes down a smaller student for his lunch money may not be as culpable, but they are not entirely blameless.” The decision held that it was reasonable for the school to conclude that the messages and the students’ participation in the Snapchat group “fostered an environment that emboldened the bullies and encouraged others in the invasion of the [victim’s] rights. The evidence showed that they were well aware of the effects of that conduct” on their teammate. The Court determined that the speech and conduct at issue in a school environment “are not protected by the First Amendment.”

The Doe v. Hopkinton Public School  case emphatically rejects the “rights” of students to participate in school bullying. It provides further guidance and protection to schools and districts as they carry out legal obligations to investigate and discipline students for bullying behaviors.