Fifth Circuit, sitting en banc, rules Mississippi district did not violate student’s First Amendment rights by disciplining him for off-campus online posting of rap video containing threatening language directed at two teacher/coaches
Bell v. Itawamba Cnty. Sch. Bd., No. 12-60264 (5th Cir. Aug. 20, 2015) (en banc)
Abstract: The U.S. Court of Appeals for the Fifth Circuit, sitting en banc (all active judges participating), has ruled that a Mississippi district did not violate a student’s First Amendment free speech rights when school officials disciplined the student for a video he created and posted online off-campus that contained threatening language directed at two teachers/coaches. The majority’s opinion (there were a number of concurring and dissenting opinions) held that the substantial disruption standard enunciated in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969), was controlling even though the student speech in question took place off-campus. Because it determined that the speech was subject to regulation by school officials under Tinker, the majority declined to reach the issue of whether the student could be disciplined based on his speech constituting a “true threat.”
Facts/Issues: Taylor Bell, a student at Itawamba Agricultural High School (IAHS), filed suit in federal court against the Itawamba County School Board (ICSB), Superintendent Teresa McNeece and Principal Trae Wiygul, alleging that the defendants disciplined him in violation of his First Amendment free speech rights. Bell was suspended and sent to an alternative school for five weeks after he posted on Facebook a rap song he had composed and recorded accusing two IAHS coaches of flirting with and maintaining inappropriate contact with female students.
The suit contended that Bell’s song “was produced off school property, without using school resources, never played or performed at the school, not performed at a school sponsored event, and never accessed by students on school property.” Bell claims that four days after he posted the song on Facebook, he was taken out of class to meet with the school principal, the superintendent and the school board attorney, all of whom accused him of “making false allegations and threats.”
A school district disciplinary committee found that his song amounted to harassment and intimidation of school teachers and possible threats against teachers. The committee recommended a seven-day suspension and five weeks at Itawamba Alternative School. On appeal, the school board upheld the punishment and affirmed that Taylor Bell “threatened, harassed, and intimidated school employees” with the publication of his song.
The suit made three federal claims: (1) that Bell was disciplined for engaging in constitutionally protected speech; (2) that the discipline violated the parenting rights of his mother, Dora Bell, as guaranteed by the Fourteenth Amendment Due Process Clause; and (3) that Bell’s speech was entitled to heightened protection as it addressed a matter of public concern. The complaint also alleged violation of Mississippi law. Having determined that there were no factual issues, the court resolved Bell’s claims by summary judgment.
The district court ruled that school officials did not violate Bell’s free speech when they disciplined him for posting a “rap” song he composed and performed off-campus, and posted on his Facebook page. The court concluded that Tinker specifically held that school officials can regulate off-campus speech/expression that causes material or substantial disruption at school.
The court rejected Bell’s argument that because his speech was regarding a matter of public concern, it was entitled to heightened protection. It found that he had failed to demonstrate as a matter of law that student speech is entitled to such heightened protection in lieu of the Tinker standard. The court also concluded that had it not found for school officials on the First Amendment speech claim, it would have granted them qualified immunity because the Bell had failed to show that a reasonable official would have believed his song to be clearly protected First Amendment speech.
The court, likewise, dismissed the parent’s Fourteenth Amendment due process claim that the school’s disciplinary measures infringed on her liberty interest to make decisions regarding the care, custody and control of her child. The parent had not shown, ruled the court, that the disciplinary measures taken by school officials were not tied to the school’s compelling interest of maintaining school order. The parent appealed the district court’s ruling.
A U.S. Court of Appeals for the Fifth Circuit three-judge panel, in a 2-1 split, ruled that ICSB violated Bell’s free speech rights by disciplining him for off-campus speech. The panel determined that the speech in question, i.e., a rap song accusing two male coaches of misconduct with female students, which was posted online on Facebook and YouTube, was not speech that occurred on school property or during a school-sponsored event off-campus. It concluded that the federal district court had incorrectly applied Tinker because the evidence did not “support the conclusion that a material and substantial disruption at school actually occurred or reasonably could have been forecasted.”
The panel pointed out that the U.S. Supreme Court’s “student-speech” jurisprudence does not address the question of student speech that occurs off-campus and not at a school approved event. Even in the absence of Supreme Court precedence, it found that it was neither necessary nor appropriate for the panel to anticipate such a decision. It also rejected the school board’s attempt to characterize the student’s speech as undeserving of First Amendment protection under Fifth Circuit precedent or because it constituted a true threat.
The Fifth Circuit subsequently granted ICSB’s motion for rehearing en banc and vacated the panel’s decision.
Ruling/Rationale: A majority of the Fifth Circuit’s judges, sitting en banc, affirmed the district court decision. The majority began with a brief review the U.S. Supreme Court’s and the Fifth Circuit’s student speech jurisprudence. In addition to Tinker, it touched on Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), and Morse v. Frederick, 551 U.S. 393 (2007). Noting that Fraser, Kuhlmeier, and Morse are exceptions to Tinker that do not require school officials to prove the occurrence of an actual disruption or one that reasonably could have been forecast in order restrict student speech, the majority pointed out that the Fifth Circuit’s decision in Ponce v. Socorro Independent School District, 508 F.3d 765 (5th Cir. 2007), “extended the Morse exception to certain threats of school violence.”
The majority then addressed the student’s argument that “Tinker does not apply to off-campus speech, such as his rap recording; and, even if it does, Tinker’s ‘substantial disruption’ test is not satisfied.” It pointed out that at the time Tinker was decided “the Internet, cellphones, smartphones, and digital social media did not exist.” It added that technology gives students “the ability to disseminate instantaneously and communicate widely from any location via the Internet.” Acknowledging “such communications might be protected speech under the First Amendment,” the majority conceded that “off-campus threats, harassment, and intimidation directed at teachers create a tension between a student’s free speech rights and a school official’s duty to maintain discipline and protect the school community.”
Given “these competing interests and increasing concerns regarding school violence,” the majority found it “necessary to establish the extent to which off-campus student speech may be restricted without offending the First Amendment.” It found the student’s position that “Tinker does not apply to speech which originated, and was disseminated, off-campus, without the use of school resources” untenable. It concluded the student’s position “fails to account for evolving technological developments, and conflicts not only with our [Fifth] circuit’s precedent, but with that of every other circuit to have decided this issue.”
The majority found that of the six federal circuits that have addressed whether Tinker applies to off-campus speech, five, including the Fifth Circuit, have held it does. While the Fifth Circuit case, Shanley v. Ne. Indep. Sch. Dist., Bexar Cnty., Tex., 462 F.2d 960 (5th Cir. 1972), ultimately held that the off-campus student speech enjoyed First Amendment protection, the court had applied Tinker. It pointed out that the other four circuits “have held that, under certain circumstances, Tinker applies to speech which originated, and was disseminated, off-campus.” based on Fifth Circuit precedent and caselaw from four other circuits in agreement, the majority determined “Tinker applies to off-campus speech in certain situations.”
The majority then delved into the question of under what circumstances school officials may restrict off-campus student speech. Relying on the summary judgment record, it eschewed adopting a specific rule. Instead, the majority concluded that the student’s “admittedly intentionally directing at the school community his rap recording containing threats to, and harassment and intimidation of, two teachers permits Tinker’s application in this instance.”
In order to answer the question of what circumstances, the majority analyzed the Fifth Circuit’s decision in Porter v. Ascension Parish Sch. Bd., 393 F.3d 608 (5th Cir. 2004). In Porter, the Fifth Circuit applied Tinker to the school’s regulations, but our court held the speech, a drawing created off-campus, “was protected because the student never intended for the drawing to reach the school, describing its introduction to the school community as ‘accidental and unintentional.’” The Fifth Circuit stated:
[I]ts holding was “not in conflict with this body of case law” regarding the First Amendment and off-campus student speech because the drawing’s being composed off-campus and remain[ing] off-campus for two years until it was unintentionally taken to school by his younger brother takes the present case outside the scope of these precedents.
The majority found the relevance of Porter is the “speaker’s intention that his speech reach the school community, buttressed by his actions in bringing about that consequence.” It concluded that intention “supports applying Tinker’s school-speech standard to that speech.”
Finding that “the pervasive and omnipresent nature of the Internet has obfuscated the on-campus/off-campus distinction,” the majority held: “Tinker governs our analysis, as in this instance, when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimidate a teacher, even when such speech originated, and was disseminated, off-campus without the use of school resources.”
Turning to the present case, the majority said the facts were clear that the student “produced and disseminated the rap recording knowing students, and hoping administrators, would listen to it.” It found that “regardless of whether [the student’s] statements in the rap recording qualify as ‘true threats’, … , they constitute threats, harassment, and intimidation, as a layperson would understand the terms.” It, therefore, concluded that “there is no genuine dispute of material fact that Bell threatened, harassed, and intimidated the coaches by intentionally directing his rap recording at the school community, thereby subjecting his speech to Tinker.”
Finally, the majority applied Tinker’s substantial disruption standard to the facts of the case. Specifically, whether the student’s recording either caused an actual disruption or reasonably could be forecast to cause one. It concluded that “there is no genuine dispute of material fact that the school board’s finding the rap recording threatened, harassed, and intimidated the two coaches was objectively reasonable.” It then considered whether “the school board’s disciplinary action against Bell, based on its finding he threatened, harassed, and intimidated two coaches, satisfies Tinker.”
The majority said, “Arguably, a student’s threatening, harassing, and intimidating a teacher inherently portends a substantial disruption, making feasible a per se rule in that regard.” However, it did not reach that question and, instead, found that school officials could have reasonably forecast that the student’s conduct could cause a substantial disruption. Citing the holding in A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009): “While school officials must offer facts to support their proscription of student speech, this is not a difficult burden, and their decisions will govern if they are within the range where reasonable minds will differ,” it emphasized that “school authorities are not required expressly to forecast a ‘substantial or material disruption’; rather, courts determine the possibility of a reasonable forecast based on the facts in the record.”
Applying Cash’s precedent to the summary judgment record and relying on other reasons, the majority found “a substantial disruption reasonably could have been forecast as a matter of law.” It pointed out that “the manner in which [the student] voiced his concern— with threatening, intimidating, and harassing language—must be taken seriously by school officials, and reasonably could be forecast by them to cause a substantial disruption.” It also noted “the speech pertained directly to events occurring at school, identified the two teachers by name, and was understood by one to threaten his safety and by neutral, third parties as threatening.”
In addition, the majority found that Bell “admitted he intended the speech to be public and to reach members of the school community, which is further evidenced by his posting the recording to Facebook and YouTube.” Further, it found “the school-district’s policy demonstrates an awareness of Tinker’s substantial-disruption standard, and the policy’s violation can be used as evidence supporting the reasonable forecast of a future substantial disruption.”
In regard to the school board’s response to the video, the majority opined, “The reasonableness of, and amount of care given to, this decision is reinforced by the school board’s finding, differently from the disciplinary committee’s, that [the student’s] statements also constituted threats.” It concluded that “with near-constant student access to social networking sites on and off campus, when offensive and malicious speech is directed at school officials and disseminated online to the student body, it is reasonable to anticipate an impact on the classroom environment.”
In closing, the majority said, “In considering [the student’s] First Amendment claim, and our having affirmed summary judgment for the school board under Tinker, it is unnecessary to decide whether Bell’s speech also constitutes a “true threat” under Watts v. United States, 394 U.S. 705 (1969).”
In addition to the majority opinion, there were three concurring and two dissenting opinions filed. The first concurrence recognized the relevance of the Tinker, but believed courts should not rigidly adhere that standard in cases involving threats to kill teachers. It called on courts to take technological and societal changes into account.
The first concurrence said, “Judges should also view student speech in the further context of public education today—at a time when many schools suffer from poor performance, when disciplinary problems are at their highest, and when schools are, in many ways, at their most ineffective point. “ It then suggested the following rule:
Student speech is unprotected by the First Amendment and is subject to school discipline when that speech contains an actual threat to kill or physically harm personnel and/or students of the school; which actual threat is connected to the school environment; and which actual threat is communicated to the school, or its students, or its personnel.
The second concurrence emphasized that “nothing in the majority opinion makes Tinker applicable off campus to non-threatening political or religious speech, even though some school administrators might consider such speech offensive, harassing, or disruptive.” It believed the majority had avoided creating a precedent that would allow under Tinker “the suppression of student speech (even political speech) based on its consequences rather than its content,” which “would empower schools to regulate students’ expressive activity no matter where it takes place, when it occurs, or what subject matter it involves—so long as it causes a substantial disruption at school.”
The second concurrence concluded that “the majority opinion avoids such “ominous implications” and does not subject a broad swath of off-campus student expression to Tinker.” It expressed agreement with the majority “[b]ecause this cautious approach does not place public school officials in loco parentis or confer upon them a broad power to discipline non-threatening off-campus speech.”
The third concurrence criticized the dissent saying that “[i]dentifying some aspect of [the student’s] song that addresses a matter of public concern therefore is not enough to elevate it above the Tinker framework unless Tinker does not apply to this type of off-campus speech.” It stated: “For the reasons discussed in the majority opinion, along with the views expressed by every other circuit that has taken a position on this issue, I agree that it does, at least when the speech is threatening, harassing, and intimidating as it is here.”
The first dissent, which was written by the judge who had authored the vacated panel opinion, found the majority opinion in error on three grounds:
(1) [The student] is entitled to summary judgment because his off-campus rap song was specially protected speech on a matter of public concern;
(2) the School Board was not authorized by Tinker to censor students’ off-campus online speech;
(3) even assuming arguendo that Tinker granted the School Board power to censor such speech, the School Board was not entitled to summary judgment under Tinker, because the evidence, viewed in the light most favorable to the non-movant, Bell, does not support the conclusion that Bell’s speech caused a substantial disruption of school activities or justified a reasonable forecast of such a disruption by school officials.
This dissent detailed four main errors in reasoning by the majority. First, it found the majority opinion failed to acknowledge that the student’s rap song constituted speech on a “matter of public concern.” Second, the majority by expanding the scope of schools’ authority to regulate students’ off-campus speech disregarded Supreme Court precedent establishing that minors are entitled to “significant” First Amendment protection. Third, “by holding that the Tinker framework applies to off-campus speech like Bell’s, the majority opinion simply ignores that Tinker’s holding and its sui generis ‘substantial-disruption’ framework are expressly grounded in ‘the special characteristics of the school environment.’” Fourth, the majority opinion erred in its application of the Tinker framework because “the summary-judgment evidence simply does not support the conclusion, as required by Tinker, that Bell’s song substantially disrupted school activities or that school officials reasonably could have forecasted that it would do so.”
The other dissent began by stating: “[T]he majority opinion also errs in its very application of the Tinker framework. As detailed in the panel majority’s opinion, the summary-judgment evidence simply does not support the conclusion, as required by Tinker, that Bell’s song substantially disrupted school activities or that school officials reasonably could have forecasted that it would do so.” It said it was “unaware of a circuit or state supreme court going as far as the majority in this case and holding that threatening, harassing, or intimidating online speech that occurred purely off campus may be prohibited or punished.”
The dissent concluded the student’s “speech does not fit within the currently established, narrow categories of unprotected speech, and I would wait for the Supreme Court to act before exempting a new category of speech from First Amendment protection.” It also argued that the student’s speech “does not fall within the First Amendment exception we have previously recognized for student speech that threatens violence bearing the stamp of a well-known pattern of recent historic activity: mass, systematic school-shootings in the style that has become painfully familiar in the United States.”
Bell v. Itawamba Cnty. Sch. Bd., No. 12-60264 (5th Cir. Aug. 20, 2015) (en banc)
[Editor’s Note: In May 2015, Legal Clips summarized an article in the Student Law Press Center reporting on oral argument in Bell v. ICSB. Bell’s attorney Scott Colom framed the issued as: “The question in this case is whether government is so powerful that it can reach into the parents’ home, into a student’s computer and punish the student as if it were the parent.”
Colom ran into sharp questioning from Judge Rhesa Hawkins Barksdale, the dissenting vote in the December panel opinion, who argued that technology removes any distinction between on-campus and off-campus speech and that schools should have equivalent punitive authority over both. When Colom said giving schools punitive authority over off-campus student speech could even allow them to suspend a student who used sharp language criticizing an elected school superintendent at a political rally, Barksdale shot back. “That’s not what we’re dealing with,” Barksdale said. “We’re dealing with threats, harassment and intimidation.”
The school district’s attorney, Benjamin E. Griffith, argued that Bell’s constitutional challenge could be invalidated either by extending Tinker to reach potentially disruptive speech that is “intended to reach the school” or by finding that Bell’s speech constituted a “true threat,” which the Supreme Court has deemed to be categorically outside the First Amendment even in the off-campus adult world.
Several judges visibly struggled to come up with a legal standard that protects student political commentary and whistle-blowing speech from school retaliation. “Everything you say these days has the potential of reaching the Internet, so where’s the line?” asked Judge Jennifer Walker Elrod.]