"It's a Free Country, I Can Say What I Want!"… But Can You?

The First Amendment's right to free speech is one of the cornerstones of our Constitutional system; however, while the rights it protects are vital, the First Amendment is also used as a "get out of jail free card" for bad behavior, namely, bullying.

In April, the Supreme Court heard an argument in a school speech case, Mahanoy Area School District v. B.L. Factually, the case has nothing to do with bullying. B.L. was a sophomore at Mahanoy Area High School in Schuylkill County, Pennsylvania, who tried out for the varsity cheerleading team (and would spend another year on the JV team). After learning she did not make the varsity team, B.L. posted a "Snapchat" story with the caption "f[***] school f[***] softball f[***] cheer f[***] everything." Fellow students and cheerleaders saw the story and shared it with the cheerleading coaches. The coaches decided the story violated school and team rules, and suspended B.L. from the JV cheerleading team for a year. B.L. sued, arguing the suspension violated her First Amendment Rights.

The U.S. District Court for the Middle District of Pennsylvania and the Third Circuit Court of Appeals found in favor of B.L. The Third Circuits' ruling was fairly broad; the court held that since the story was posted off-campus, the school could not regulate the speech pursuant to the famous case Tinker v. Des Moines Independent Community School Dist. (which allows schools to regulate student speech that "materially and substantially interfere[s]" with the school's operations). The school appealed to the Supreme Court, presenting the question "[d]oes the First Amendment prohibit public school officials from regulating off-campus student speech?"

The case's oral argument took an interesting, but ultimately predictable turn. The justices questioning the argument did not indicate they thought the Third Circuit was wrong in its holding as applied to B.L.'s case; however, there was concern about the breadth of the holding and the negative implications it may have on a school's ability to regulate off-campus bullying. In fact, even B.L.'s attorney stated: "a prohibition on bullying that mirrors the prohibition on harassment by being limited to severe or pervasive interpersonal aggression that interferes with access to education could well satisfy the First Amendment." However, questioning and hypotheticals by the justices established that this definitional standard would be difficult to implement in practice.

Our Firm talks about bullying a lot and for good reason. Bullying is pervasive in the legal profession, the corporate world, academia, and athletics. While it is likely the Court's opinion in B.L.'s case will be narrow and not establish broadly applicable legal principals, there is a chance the Supreme Court will take this case as an opportunity to explain whether, and how, the government can regulate bullying without running afoul of the First Amendment.

In a very different yet related case, Malone v. Angle, a former college football coach is suing the University of Tennessee-Chattanooga after being fired for posting a controversial tweet. On January 5, 2021, Chris Malone, apparently frustrated with the Democratic victories in Georgia's elections tweeted: "Congratulations to the state GA and Fat Albert @staceyabrams because you have truly shown America the true works of cheating in an election, again!!! Enjoy the buffet Big Girl!! You earned it!!! Hope the money is good, still not governor!" Malone deleted the tweet thirty-minutes later; however, on January 7, the head football coach forced Malone to resign. On April 27, Malone filed a lawsuit in the Eastern District of Tennessee arguing his forced resignation violated the First Amendment.

Malone is the antithesis of B.L. While any person, even a high school student, should have the freedom to vent frustration without fear of governmental punishment, the minute the frustration becomes targeted and pejorative of a specific person, punishment should be a possibility. In other words, Malone is a classic bully€”out of frustration about events outside of his control, he lashed out on a specific person with highly offensive language. Bullies should not be able to evade repercussions from their employer, merely because they work for a state actor. Neither should school-aged bullies evade punishment by a school simply because they swing their blows off the school's campus, or via the internet.

Of course, this issue is not limited to public school students and employees. In August of 2016, the American Bar Association adopted a new model ethics rule for lawyers, Rule 8.4(g). The model rule says it is professional misconduct for a lawyer to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." Since then, the Rule has sparked some controversy because the rule's critics argue, inter alia, Rule 8.4(g) violates the First Amendment. Setting aside the intellectually dishonest parade of horribles that Rule 8.4(g)'s critics claim will result from a prohibition on a lawyer's ability to harass or discriminate in connection with the practice of law (these include fear of a chilling effect on speech on controversial issues at bar-sponsored events and CLEs), the pushback against Rule 8.4(g) is simply another example of how the First Amendment can be weaponized to justify bullying.

While freedom of speech is vital to our society, the First Amendment should not allow bad actors to evade the natural repercussions of their harassing ways.