By Frank LoMonte at Student Press Law Center
Students’ off-campus online speech should receive heightened First Amendment protection and cannot be equated with in-school speech, the Student Press Law Center told the U.S. Supreme Court in a brief filed Monday urging the Court to hear the case of a Mississippi student rapper punished for a profane song posted to YouTube.
The SPLC, joined by the Foundation for Individual Rights in Education, Inc., filed a friend-of-the-court brief supporting Taylor Bell’s petition for review of an August 2015 ruling from the Fifth Circuit U.S. Court of Appeal. Bell was suspended for the spring term of his senior year in 2011 after composing, performing and distributing a rap song describing in graphic detail how he believed two coaches at his Fulton, Miss., high school were sexually harassing female students. Although Bell created the song wholly off-campus and never showed it to anyone during school, the 16 judges of the en banc Fifth Circuit – reversing a 2-1 ruling in Bell’s favor – ruled that the song was legally the equivalent of in-school speech and subject to the same degree of regulation.
“Taylor Bell might have chosen an ineffective method of making his concerns heard, but there is a difference between what is optimally polite judgment and what should get you thrown out of school when you are speaking on your personal, off-campus time. The Supreme Court has always said that speech addressing issues of public concern is entitled to the highest degree of protection, and now we are about to see if the Court really means it,” said attorney Frank D. LoMonte, executive director of the Student Press Law Center.
In the brief, the SPLC argues that the appeals court erred in giving schools the same authority over off-campus speech on social media that applies to speech during school time under the Supreme Court’s 1969 ruling, Tinker v. Des Moines Independent Community School District. In theTinker case, the Court gave schools the authority to ban or punish speech that “materially” or “substantially” interferes with school operations regardless of whether any disruptive intent was foreseen or intended – which the brief argues is insufficiently protective of speech on students’ personal time.
“The Fifth Circuit’s standard – which appears to require only that speech be about the school and not a wrongful intent to cause a disruptive reaction – is untenable and dangerous, placing students under the chilling cloud of school punishment just for blowing the whistle on their schools’ shortcomings. If this Court does not correct the Fifth Circuit’s rationale, and place a sensible limit on the reach of Tinker authority, this Court will be clearing the way for school officials to silence students who speak up about concerns the officials may disagree with or that may reflect poorly on the school,” the SPLC brief argues, noting how often school censorship authority is misused to cover up student dissatisfaction about their schools’ shortcomings.
The brief emphasizes the special danger posed when schools are empowered to punish speech on social media, because speakers in that medium are especially prone to use slang and shorthand, and to traffic in irony and inside jokes that may mislead adult authority figures unfamiliar with the context and cultural cues.
The brief was prepared with the assistance of SPLC attorney volunteer Scott L. Sternberg of the New Orleans office of Baldwin Haspel Burke & Mayer, LLC, who said, “Since the 1969Tinker case, public school administrators have been chipping away at students’ rights to freedom of expression. With each victory and defeat, advocates have anticipated the looming battle regarding off-campus Internet speech and its potential for further unwarranted student censorship. If the Fifth Circuit’s ruling stands in Taylor Bell’s case, we will be inviting censorship of political, social and whistleblowing speech, and sensitive administrators will place a chilling effect on the most important and accessible medium of expression for students today: social media. The SPLC and FIRE believe that the line must be drawn here. An American public school should not be allowed to punish a student for his off-campus speech. In our filing today, we have urged the Court to grant certiorari and state, emphatically, ‘No further.’”
The Court has never taken a case involving school authority over student speech that is distributed online, despite several opportunities to entertain the issue. LoMonte said the Bell case presents an especially opportune moment because the case involves criticism of the way government employees perform their jobs, and because the speaker is an African-American rapper – the type of student who will be at heightened risk of life-altering “school to prison pipeline” discipline if schools are allowed to regulate how teens communicate on their personal time. Bell’s case has attracted the attention of rap artists nationally because of the risk that lyrics using figuratively violent imagery, as Bell did, may be mistaken for true threats; a group of prominent rappers including T. I., Big Boi and Killer Mike filed a brief Monday supporting Bell’s petition.