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Another Disappointing Circuit Court Ruling on Off-Campus High School Speech

By September 2, 2015

Last month, the U.S. Court of Appeals for the Fifth Circuit became the most recent of the federal circuit courts to expand the power of secondary schools to punish students for their off-campus Internet speech. In an en banc decision in Bell v. Itawamba County School Board, the Fifth Circuit took a significant bite out of students’ First Amendment rights outside the schoolhouse gates. The decision sets a disappointing precedent that will not only impact students in elementary, junior high, and high school, but could very well leak onto college campuses.

The case began in 2011 after Taylor Bell, a high school senior in Itawamba County, Mississippi, posted a rap song he had written and recorded to his Facebook page and later to YouTube, outside of school hours and away from school grounds. The recording raised allegations of sexual misconduct by two coaches at Bell’s high school. The lyrics, written and performed by Bell, included profanity and several lines that the school board (and ultimately the court) deemed to be “threatening, harassing, and intimidating language.” For example:

Heard you textin number 25 / you want to get it on / white dude, guess you got a thing for them yellow bones / looking down girls shirts / drool running down your mouth / you fucking with the wrong one / going to get a pistol down your mouth / Boww[.]

The day after the recording was posted to Facebook, one of the coaches learned of it, listened to the song on a student’s smartphone, and informed the school principal, who in turn informed the superintendent. Bell was suspended for seven days and later placed in an alternative school for the remainder of the grading period. The school board upheld the discipline, ruling that Bell “threatened, harassed, and intimidated school employees” in violation of school district policy.

Bell sued, claiming violation of his First Amendment rights. The federal district court granted summary judgment to the school board, but was reversed by a divided Fifth Circuit panel that held the discipline did indeed violate Bell’s free speech rights. That decision was vacated earlier this year when the Fifth Circuit granted en banc review (i.e., a rehearing by all judges on the circuit’s bench).

The en banc majority opinion, written by Judge Rhesa Hawkins Barksdale, ruled in favor of the school board, applying the U.S. Supreme Court’s decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). The Tinker decision famously held that student First Amendment rights do not end at the “schoolhouse gate” and defined the circumstances under which a K—12 public school may punish student speech. In Tinker, the Supreme Court held that punishment could be issued where speech materially and substantially disrupts school operations or where administrators reasonably forecast such a disruption.

The Bell majority’s holding extends Tinker to a student’s off-campus social media posts. It states that a school may—consistent with the First Amendment—punish off-campus speech directed at the school community and “reasonably understood by school officials to be threatening, harassing, and intimidating to a teacher” if it meets the Tinker substantial disruption standard.

In coming to its decision, the appellate court raised several points that, by its reasoning, warranted extending Tinker to the facts at hand. The court reasoned that the advent of Internet communications, social media, and smartphones has blurred the boundaries between in-school and out-of-school communications. It also focused on “the recent rise in incidents of violence against school communities.” School administrators, according to the court, require clarity in their ability to react preemptively to avoid violence.

The majority then concluded that administrators could have reasonably predicted Bell’s recording would cause a substantial disruption in school, based on the fact that Bell specifically identified the two coaches, mentioned actions that could result in serious injury or death, and intended for his speech to reach the school community (indeed, Bell stated he wanted to raise awareness about the alleged sexual misconduct). The court seemed to take as a given that a reference to violence in relation to a specific teacher was enough to reasonably forecast a substantial disruption: “It … goes without saying that threatening, harassing, and intimidating a teacher impedes, if not destroys, the ability to teach; it impedes, if not destroys, the ability to educate.”

There are several major problems that will make the decision difficult to cabin, despite cautions issued in the concurrences. Though the majority claimed to decide the case narrowly on the facts before it rather than announcing a sweeping new rule of law, several of the four dissents expressed understandable skepticism that the ruling can or will be so limited going forward.

While the majority raises the issue of school violence, it does not explain why a lowered First Amendment standard is necessary in order to empower school authorities to act preemptively. The First Amendment does not, after all, protect “true threats,” whether made by adults or K—12 students. The court found it unnecessary to address whether the rap lyrics at issue were true threats because “regardless … they constitute threats, harassment, and intimidation, as a layperson would understand the terms.” It goes unexplained, however, why a layperson’s understanding of these words should trump the precise legal standard fashioned by the U.S. Supreme Court for true threats just because off-campus speech by students is at issue.

As Judge Edward Prado’s dissent points out, it is highly doubtful Bell’s speech would meet the constitutional true threat standard: “[I]n the context of expressive rap music protesting the sexual misconduct of faculty members, no reasonable juror could conclude that Bell’s rap lyrics constituted a ‘true threat.’” The majority instead appears to adopt the view that, if the off-campus speech has to do with a school, administrators should be able to apply a lower “threat” standard than would be permissible if the student referenced anyone or anything else. This should be concerning to any student, like Bell, whose artistic expression (or any expression) references his or her school. If what you have to say could be interpreted by a “layperson” to constitute threats, harassment, or intimidation, you’d better keep it under wraps until you graduate from high school (and possibly college).

The flexibility the Bell court has now provided administrators in defining punishable speech should add to students’ concern. The court deferred to the school board’s conclusion that it could punish language that “threatened, harassed, and intimidated school employees.” Not only is this a vague standard, defined by a layperson’s understanding of the words, but it comes directly from the school district’s policy. How will the next court distinguish Bell’s holding from Facebook posts that allegedly violate a school policy against “harassing, offensive, or bullying” language, as those words are understood by a reasonable administrator? One could argue that such a policy does not raise the same school violence concerns as Bell, but another could argue that it does, especially given the attention paid in recent years to student cyberbullying.

Finally, the court’s holding underlines the fundamental difficulty in extending Tinker to off-campus speech: It is difficult if not impossible to break down the barrier of Tinker’s schoolhouse gate without creating a policy of 24/7 school authority over student speech. Some federal circuit courts extending Tinker off-campus have attempted to impose boundaries by requiring a nexus between student speech and its foreseeable impact on campus. The Bell court appears to impose a similar requirement by noting that the student intended his song to be heard by the school community. This problem with this approach, however, is that in practice, it will almost always favor school intervention. Just as the Bell court justified the regulation of off-campus conduct by citing the ubiquitous nature of social media, other courts will find a nexus to the school on the same grounds. It is nearly impossible for a student to engage in Internet speech without potentially reaching schoolmates, their parents, and ultimately administrators.

The Bell decision is another case broadening school authority to encroach on student speech where it would otherwise enjoy full First Amendment protection. Of the circuit courts to address off-campus Internet speech in the secondary school context, only the Third Circuit, in J.S. v. Blue Mountain School District, 650 F.3d 915 (3d Cir. 2011), has declined to hold that Tinker applies, finding it unnecessary to reach the issue at the time.

College students should be watching this trend closely. Particularly where references to violence or harassment are concerned, college administrators can and do cite the same pedagogical and logistical justifications as high school administrators in their efforts to prevent disruption on campus. Moreover, while advocates such as FIRE have argued that the Tinker standard should not be used to regulate or punish the off-campus, online speech of adult college students, some courts have shown a disturbing willingness to conflate speech standards applied to K—12 and college students. Bell’s application to a college student’s Facebook or Twitter posts, therefore, is not outside the realm of possibility.

FIRE will continue to monitor this worrisome trend in off-campus expression and stands ready to defend student speech against further encroachment.

Photo: Taylor Bell and his attorneys, Wilbur Colom, left, and Scott Colom. Credit: Frank LoMonte, Student Press Law Center.