When Off-Campus Speech Is On-Campus Bullying

In its 2021 opinion Mahoney Area Sch. Dist. v. B.L., the Supreme Court ruled that the school in that case could not suspend that particular student for off-campus speech. It left open the possibility that other schools could discipline other students in other circumstances. The federal court to look at one of those other circumstances is the Ninth Circuit. The court recently upheld the expulsion of two students who participated in a private Instagram account which they targeted specific classmates with profane and racist messages, including some semi-threatening language and violent images.

The school also had disciplined four students who followed the account, but the trial court had held that the discipline was not appropriate because they had not created any substantial disruption. The school apparently did not appeal that decision.

The trial court had upheld the suspension of the student who authored most of the messages and another student who also posted at least one racist message. The most active student student argued that it was a private Instagram group and that he never intended for his targeted classmates to see the posts. The court was not impressed, noting the uproar that resulted when one of the group told one of the targeted students about the posts. As the panel explained, “Given the ease with which electronic communications may be copied or shown to other persons, it was plainly foreseeable that Epple’s posts would ultimately hit their targets, with resulting significant impacts to those individual students and to the school as a whole. . . . [H]aving constructed, so to speak, a ticking bomb of vicious targeted abuse that could be readily detonated by anyone following the account, Epple can hardly be surprised that his school did not look the other way when that shrapnel began to hit its targets at the school.”

Given the facts that the posts targeted specific fellow students and caused an uproar when they became public, the appellate court affirmed the school’s decision to discipline the two students who had actually posted messages to the group. Their free speech did not extend to bullying and semi-threatening messages. The school had a responsibility to protect its other students from bullying, and it was within its rights to meet that obligation by expelling the two students.