Bell v. Itawamba Cnty. Sch. Bd., No. 12-60264 (5th Cir. Dec. 12, 2014)
Abstract: A U.S. Court of Appeals for the Fifth Circuit three-judge panel, in a 2-1 split, has ruled that a school board violated a student’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 v. Des Moines Independent Community School District, 393 U.S. 503 (1969), 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.
Facts/Issues: Taylor Bell, a student at Itawamba Agricultural High School (IAHS), filed suit in federal court against the Itawamba County School Board, 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 a student’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 v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), specifically held that school officials can regulate off-campus speech/expression that causes material or substantial disruption at school.
The court rejected the student’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 student had failed to show that a reasonable official would have believed the student’s 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.
Ruling/Rationale: The Fifth Circuit panel’s majority reversed the lower court’s grant of summary judgment in favor of the school board on the first amendment claim and rendered judgment in favor of the student, Bell. It remanded the case to the district court, ordering that court to award Bell nominal damages, court costs, appropriate attorneys’ fees, and an injunction ordering the School Board to expunge all references to the incident at issue from Bell’s school records. However, the majority affirmed the lower court’s judgment in all other respects.
The majority addressed in turn the three arguments made by the board to justify its discipline of Bell. It began the analysis with the board’s argument that it was justified in taking disciplinary action against Bell for his off-campus, online speech under Tinker’s substantial distribution standard. First, the panel rejected the district court’s conclusion that U.S. Supreme Court student speech precedent expressly allows school officials to regulate off-campus speech that causes material or substantial disruption at school.
Directly refuting the district court, the majority said, “[c]ontrary to the district court’s conclusions, the Supreme Court’s ‘student-speech’ cases, including Tinker, do not address students’ speech that occurs off campus and not at a school-approved event.” It found that the language in Tinker, which was relied upon by the district court to permit regulation of off-campus speech, merely indicated that balancing the protection of free speech rights with the regulation of student conduct “extends to all facets of on-campus student speech and not just that occurring within the classroom walls.” In a footnote directed at the dissent, the majority declined the opportunity to rule in advance of the Supreme Court addressing the issue of whether the Internet and all its associated “technological developments” have “vitiated the distinction between on-and-off-campus student speech, thus expanding the authority of school officials to regulate a student’s speech when he or she is at home during non-school hours.”
Even assuming that Tinker’s substantial disruption standard applies to off-campus speech, the majority concluded that it could not provide justification in the present case for the board’s disciplining Bell. It found that the evidence presented on the motion for summary judgment failed to establish that substantial disruption ever occurred or that the evidence “demonstrate[d] any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” It found that the coaches’ testimony that they had altered their teaching styles to “avoid accusations of sexual harassment” did not demonstrate a “material and substantial disruption of school work or discipline that would justify the restriction of student speech under Tinker.”
The majority also indicated that the facts did not support a finding that a disruption could be reasonably forecast. It rejected the board’s attempt to rely on its policy that categorizes certain speech as a “severe or substantial disruption without any reasonable factual predicate that such speech would likely lead to substantial disruption of school work or discipline” in order to prove reasonable forecast.
The majority next addressed the school board’s argument that Bell’s off-campus, online posting of his rap song was not protected First Amendment speech based on the Fifth Circuit’s holding in Ponce v. Socorro Independent School District, 508 F.3d 765 (5th Cir. 2007). Specifically, “Ponce … narrowly extends Morse in holding that the Tinker analysis does not apply to speech brought to campus that ‘gravely and uniquely threatens violence, including massive deaths, to the school population as a whole.’” It rejected the board’s attempt to link Bell’s rap song to Ponce. First, the majority pointed out that “Ponce did not involve student speech occurring entirely off campus; rather, the student in Ponce brought his threatening diary to campus and showed its contents to a classmate.” Next, it stressed, even more importantly, that in Ponce “the student’s notebook graphically detailed the group’s plan to commit a[C]olumbine shooting attack at the student’s school, as well as other area schools,” while in the present case Bell’s song contains violent imagery typical of the hyperbolic rap genre that is aimed at specific persons, rather than bearing the stamp of . . . mass, systematic school-shootings.”
In sum, the majority concluded that Bell’s song fell well short of the “terroristic threat to the safety and security of the students and the campus that the school officials encountered in Ponce.” As a result, it declined to extend Ponce’s holding by concluding that the stylized artistic violence in Bell’s rap song was not the functional equivalent of “the extremely threatening notebook created and brought to school by the student in [Ponce].”
Finally, the majority addressed the school board’s argument that Bell’s rap song fell within the “true threat” exception to the First Amendment. It concluded that the argument was without merit. It said “…as evidenced by the reactions of the listeners themselves, there was no reasonable or objective ground for the coaches to fear that Bell personally would harm them.” After review of a number of factors that Supreme Court precedent had identified as instructive in determining what constitutes a “true threat,” the majority concluded that “it is clear that the rap song that Bell recorded in a professional studio and subsequently posted on the Internet in protest of what he perceived as an injustice occurring at his high school did not constitute a ‘true threat.’”
The majority also placed great significance on the fact that Bell’s rap was broadcast publicly over the Internet and not conveyed privately or directly to the coaches. It explained:
The case law shows that it makes a big difference whether the purportedly threatening speech is contained in a private communication-or a face-to-face confrontation, a telephone call, a dead fish wrapped in newspaper-or is made during the course of public discourse. The reason for this distinction is obvious: Private speech is aimed only at its target.
It found that the overall context of the song revealed that a reasonable listener would view Bell as having employed “purely rhetorical use of violent language” in his lyrics in an effort to “(i) raise awareness of an important issue of public concern, and (ii) attract the attention of listeners and record labels in furtherance of his musical ambitions.”
The majority also indicated out that the “purported ‘threats’ contained in the song are conditional in nature, as demonstrated by both the lyrics themselves and the school officials’ interpretation of them.” Finally, it found that the reactions of listeners “undermine the notion that a reasonable listener would view the song as a threat.” The majority, therefore, concluded “that the violent language contained in the lyrics was clearly rhetorical in nature, and we therefore reject the argument that Bell’s song constituted a “true threat” of violence.”
In closing, the majority reiterated that it was not deciding whether the Tinker standard can be applied to off-campus, online speech, but instead stated that, “even assuming arguendo the School Board could invoke Tinker in this case, it would not afford the School Board a defense for its violation of Bell’s First Amendment rights because the evidence does not support a finding, as would be required by Tinker, that Bell’s song either substantially disrupted the school’s work or discipline or that the school officials reasonably could have forecasted such a disruption.”
The dissent, unlike the majority, did not view Bell’s musical efforts as artistic or a hyperbolic use of violent rhetoric to make social comment. Instead, the dissent concluded that the lyrics in the song constituted threats of violence against the coaches not worthy of First Amendment protection. It contended that the board’s decision to discipline Bell should be upheld under the “true threat” analysis. The dissent concluded that the board had satisfied both prongs of the true threat test: (1) whether the speaker “intentionally or knowingly communicated the statement in question to someone” including “a third party”; and (2) “whether a reasonable person would interpret the purported threat as a serious expression of an intent to cause a present or future harm.”
According to the dissent: “After listening to the statements in the rap recording, the school board determined unanimously ‘that [Bell] did threaten, harass, and intimidate school employees’. Therefore, the rap recording was understood, both subjectively by one of the coaches and objectively by the school board, to be a threat.” It argued that the fact that the threat were woven into a rap recording immaterial because “Bell’s words could reasonably be considered to place two members of the school’s faculty in danger.”
Throughout the opinion, the dissent decried the majority’s failure to defer to board’s expertise in matters of student discipline. It stated the question in determining if the board’s actions were justified is “whether an objectively reasonable person could interpret the speech as a true threat.”
The dissent concluded:
Finally, this court should be even more reluctant to overrule the judgment of school officials in the light of the above-described, widespread gun violence throughout our Nation. Combining Bell’s intentional communication of the rap recording toward students and administrators with the school board’s objective determination that Bell threatened, harassed, and intimidated two teachers, there is no genuine dispute that Bell’s threats satisfy the true-threat test and, therefore, are unprotected speech.
The dissent also contended that Bell’s discipline could be upheld under the Tinker standard. It argued that the “on-campus/off-campus” distinction regarding student speech is no longer relevant because of the Internet and associated technological developments. However, it said, “Bell’s intent for the speech to reach members of the community (admitted by Bell at the disciplinary-committee hearing and recognized by the majority ), evidenced by his posting the recording publicly to Facebook and YouTube, makes Bell’s speech the functional equivalent of on-campus speech.”
The dissent also found support for Tinker’s application to off-campus speech in Porter. It contended that the “majority’s assertions that [the Fifth Circuit] has not previously applied Tinker to off-campus speech is an egregious misrepresentation of [Fifth Circuit] precedent.” The dissent argued that because Bell targeted his recording to students and administrators his speech was inevitably brought on campus by mobile electronic devices, e.g. cell phones, and, therefore, Tinker applies.
The dissent stated: “Because the school district’s written policy embraces the Tinker analysis, this question boils down to whether the school board acted reasonably in determining the rap recording was a substantial disruption because it threatened, harassed, and intimidated two teachers.” It concluded that there was no genuine dispute of material fact and, therefore, the school board acted reasonably.
Again the dissent questioned the majority’s understanding of Tinker, saying, “Under the majority’s understanding of Tinker, a student could say anything so long as he set it to melody or rhyme.” It also criticized the “majority’s attempt to limit the school board’s policy as applying only to activities physically occurring on school grounds” because such an assertion “runs counter to the policy’s express language and purpose.”
The dissent found Bell’s claims that “his rap recording is merely hyperbole and, therefore, protected speech; and, as a corollary, the school board acted “unreasonably” meritless. It argued that whether Bell’s lyrics were “threatening, harassing, or intimidating is immaterial” because “[u]nder Tinker, a school may take action so long as the speech is reasonably forecast to cause a material and substantial disruption.”
In closing, the dissent charged:
The majority’s logic is flawed; although potentially representative of how some would interpret the recording, simply because one segment of the population views speech one way does not make another understanding objectively unreasonable. This red herring by the majority undermines its position—the only issue of consequence is whether the school board acted reasonably in viewing Bell’s speech as threatening, intimidating, or harassing, not which interpretation is “more reasonable.
Bell v. Itawamba Cnty. Sch. Bd., No. 12-60264 (5th Cir. Dec. 12, 2014)
[Editor’s Note: In March 2012, Legal Clips summarized the district court’s opinion in Bell holding that school officials did not violate a student’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 v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), specifically held that school officials can regulate off-campus speech/expression that causes material or substantial disruption at school.
In December 2014, Legal Clips summarized the commentary from Scotusblog on oral argument in Elonis v. United States, which addressed whether a Pennsylvania man’s conviction for making threats on Facebook should stand when he claims he was just ‘venting’ about his personal problems and did not actually mean to threaten his ex-wife and an FBI agent.”
The federal government argued that the test should be an objective one that looks at whether an average person (in legal parlance, a “reasonable person”) would interpret the statement as reflecting a serious intent to harm someone. While Elonis argued that the test should be a subjective one: did he personally intend to threaten anyone?]