Navigating the First Amendment in the Digital Age: U.S. Supreme Court Tackles Social Media Blocking Cases

Navigating the First Amendment in the Digital Age: U.S. Supreme Court Tackles Social Media Blocking Cases

In the ever-evolving landscape of the digital age, the U.S. Supreme Court recently delved into the complexities of First Amendment issues surrounding public officials’ use of social media. Two cases brought before the Court raised crucial questions about the boundaries of free speech and the authority of public officials in the realm of online communication.

The heart of the matter in both cases revolved around public officials, one notably involving school board members, who had taken to blocking constituents on their personal social media pages. As the blocked individuals initiated legal challenges, the central inquiry focused on whether these officials were acting within the scope of their authority. This crucial distinction is essential, as acting within the scope would implicate viewpoint discrimination, a practice explicitly prohibited by the First Amendment.

A fundamental challenge emerged during the arguments: the delicate task of differentiating between state action and private action in the context of social media. The digital realm blurs the lines, presenting a unique challenge for public officials and employees.

The difficulty lies in devising a clear test that effectively distinguishes between state and private action in the social media sphere. Public officials may have established their social media presence before assuming public office, posting personal, non-governmental content alongside occasional updates relevant to their public duties. This multi-faceted use of social media raises the question of where the line is drawn between personal expression and official capacity.

An attorney representing the school board members emphasized a critical point—the social media pages in question belonged to the individual board members, not the school district. However, the Justices appeared skeptical of this argument. Justice Roberts challenged the physicality of a Facebook page, likening it to a mere “gathering of protons,” while Justice Thomas questioned whether a social media page truly belongs to the individual or the platform hosting it.

The Supreme Court is set to deliver a decision by June 2024. The outcome of these cases will significantly shape the landscape of free speech in the digital age and set important precedents for the use of social media by public officials and employees. We will be sure to update our clients when a decision is issued.





























































































































































































































































































































































































































































































Ohio Court Rejects Parent and Student Challenge to Bathroom Policy Accommodating Transgender Students

Ohio Court Rejects Parent and Student Challenge to Bathroom Policy Accommodating Transgender Students

A school district in Ohio adopted a policy that allowed transgender students to use the bathroom that matches their gender identity. A group of middle school parents and students opposed to the policy filed a federal lawsuit in 2022. Their primary argument was that the policy infringed on their free exercise of religion, but other arguments were also put forth, such as an alleged Fourteenth Amendment violation for interfering with the parents’ right to raise their children as they see fit.

The U.S. District Court for the Southern District of Ohio dismissed the lawsuit on August 7, 2023. The court found that the religious infringement claims failed because the school district’s policy was neutral and did not impose a substantial burden on their religious practice. The court found that there was no allegation that the school district adopted this policy to suppress religious beliefs. The court also noted that the policy was adopted to prevent what the school district believed to be discrimination on the basis of sex, not to suppress religious beliefs.

As for the Fourteenth Amendment claim, the Court found that parents have a right to control where their children go to school but they do not have a right to dictate how a public school educates their children or how it operates its facilities. In other words, prescribing the use of student bathrooms is a school decision to make, not a parent decision to make.

What does this mean for your district?

This decision means that the school district’s policy of allowing transgender students to use the bathroom that matches their gender identity can stay in place. The plaintiffs have the right to file an appeal. Ennis Britton will continue to monitor this case as it progresses further on appeal.










































































































































































































































































































































































































































































Ohio Supreme Court Asked to Review Guidance Counselor’s Right to Retain Outside Attorney During Arbitration

Ohio Supreme Court Asked to Review Guidance Counselor’s Right to Retain Outside Attorney During Arbitration

On January 1, 2022,An Ohio guidance counselor who opted out of the union has asked the Ohio Supreme Court to overturn a decision of the 11th District Court of Appeals which found she did not have a right to use her own attorney during an arbitration hearing.

Revised Code 4117.04 requires public employers to extend and recognize the right of a designated union representative to serve as the exclusive representative of the bargaining unit included in a CBA. In the event that an employee wishes to obtain their own attorney at their own expense, unions will typically have procedures for the employee to waive their right to protection and representation under the CBA. If a district allows private representation in meetings such as predisciplinary hearings, they may face an unfair labor practice charge.

The employee contends that denying her choice of legal counsel infringes on the First and Fifth Amendments of the United States Constitution. The lower court held that the employee’s constitutional rights were not violated because the arbitration process was established in a collective bargaining agreement between the school district and the union. The court found that the employee herself was not legally entitled to initiate the grievance and arbitration process so her rights to free speech and due process were not violated. By requesting that the union submit the grievance to arbitration, as required by the collective bargaining agreement, the employee “ceded her standing to adjust the grievance.”

The Ohio Supreme Court is not required to take this case. If it decides not to hear the appeal, then the 11th District Court’s decision will remain prevailing law. We will monitor it for further developments.

How this affects your district? The employee in this case is represented by the Buckeye Institute, which has been involved in collective bargaining litigation since the U.S. Supreme Court issued its decision in Janus declaring that fair share fees were unconstitutional. Ennis Britton has seen an increase in the number of employees who request to use their own legal counsel rather than the representation provided by public sector unions. This can put a school district in the middle of a fight between its employee and the union representing bargaining unit members, which may even result in the filing of an ULP charge against the District with the State Employment Relations Board. Districts should contact legal counsel before proceeding with any meeting which is attended by an employee’s non-union attorney.  


































Decision on State Board of Education Resolution on Transgender Protections Delayed

Decision on State Board of Education Resolution on Transgender Protections Delayed

 A “Resolution to Support Parents, Schools, and Districts in Rejecting Harmful, Coercive, and Burdensome Gender Identity Policies” was proposed at the September meeting of the State Board of Education. It was placed on the State Board agenda for its Oct. 11th and 12th meeting dates.

This resolution declares the board’s “unequivocal opposition to the proposed regulatory changes released by the U.S. Department of Education on June 23, 2022.” Specifically, the proposed changes would prohibit schools that receive federal funds from adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity. The resolution opposes these changes and declares support for a lawsuit seeking to invalidate rules concerning the continued receipt of federal nutritional assistance adopted by the Department of Agriculture, which was joined by the Ohio Attorney General and 21 other state attorneys general.

The resolution directs the Superintendent of Public Instruction to mail a copy of the resolution to every public school district as well as elementary and secondary schools and preschools receiving federal funds, with a cover letter from the Ohio Department of Education stating the agency opposes Title IX regulatory changes, considers the United States Department of Education guidance documents without legal force and nonbinding, and urges districts not to amend policies and procedures based on USDOE guidance documents.

The final paragraph declares that the State Board rejects harmful, coercive and burdensome gender identity policies, procedures and regulations.

This resolution garnered a lot of state and national attention. The State Board heard four hours of public testimony before deliberating on the resolution. In the end, the State Board voted 12-7 to send the resolution to an executive committee for further consideration.

What this means for your district? The resolution was not passed so the State Board’s action in October to send the resolution to an executive committee for further consideration has no impact on your school district. If passed, the resolution as written would not be binding on local school districts. In the event the resolution passes, school districts should consult with legal counsel before taking any action in accordance with the resolution because doing so may subject your district to liability for failing to comply with federal law.











Can schools discipline students for offensive social media posts? The U.S. Supreme Court will decide in B.L. v. Mahanoy Area School District

Written by: Liz Hudson

The U.S. Supreme Court recently agreed to hear a First Amendment case about student social media use related to extracurricular activities. In June, 2020, the Third Circuit Court of Appeals affirmed a lower court’s ruling in favor of a student who was removed from the cheer team after making offensive social media posts.  

Frustrated with her lack of advancement on the cheer squad, the freshman student posted to Snapchat “F*** school f*** softball f*** cheer f*** everything” to her 250 followers.When peers on the cheer team reported the message to a coach, the student was removed from the team, but later told she could try out again the following year. Her parents filed suit in a federal court on her behalf arguing that MAHS violated her First Amendment rights. 

The school district contends that U.S. Supreme Court precedent justified its disciplinary action, especially a school’s prerogative to discipline students’ use of vulgar or plainly offensive speech established in Fraser.1 School policy elevated expectations of behavior for student athletes, preventing them from tarnishing the school’s image. Furthermore, cheer team rules discouraged “foul language” and required students to act with respect for the school, coaches, and others on the team. Negative internet posts about cheer were also prohibited.  

The Third Circuit decided for the student because the Snapchat post was off-campus speech, and, thus, Fraser did not apply. It refused to give schools discretion to regulate vulgar speech in extracurricular activities while outside of school. The court also extended previous precedent — ultimately concluding that Tinker, which allows schools to discipline disruptive speech, “does not apply to off-campus speech.” The court determined that students’ vulgar social media posts about school or school activities fall outside parameters of school discipline. Though the court recognized possible discipline for violent posts, it punted that question to another day.  

On January 8, 2021, The U.S. Supreme Court agreed to hear the case. The question certified by the Court was: 

“Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.”  

Legal arguments have yet to be filed, and oral arguments have not been scheduled. Look for updates from Ennis Britton as this case progresses. 

What does this mean for your district? 

Schools struggle to determine appropriate student social media regulation, and courts have offered conflicting First Amendment guidance. While the Third Circuit decision is not binding for schools in Ohio, the Supreme Court decision will be, and Ohio schools will have to abide by it when it is issued. In the meantime, Ohio schools should consider using restraint when disciplining students for social media posts outside of school, even those that could potentially disrupt the education environment or extracurricular activities.