Thursday, December 18, 2014

Taylor Bell Knows How to Get His Message Out and The Fifth Circuit Agrees

Taylor Bell, a high school student in Mississippi, had heard that some of the male coaches at his school had been sexually harassing female students.  Taylor said he did not bring the issue to the administration because it had been warned before and done nothing.  Taylor decided to take matters into his own hands.  He wrote a rap song about the issue--which I will not reproduce here due to its length--performed it, and posted it to youtube.  The song named coaches, recounted allegations, and made a number of provocative allusions. In a monologue preceding the actual rap, he explained his motivations:

A lot of people been asking me lately you know what was my
reasoning behind creating P.S. Koaches. It's . . . something that's
been going on . . . for a long time [] that I just felt like I needed to
address. I'm an artist . . . I speak real life experience. . . . The way
I look at it, one day, I'm going to have a child. If something like
this was going on with my child . . . it'd be 4:30. . . . That's just
how it is . . .

He later added that he wanted people, including school officials, to "more clearly understand exactly what [he] was saying" in the song.  The next day disciplinary proceedings commenced against him at school.  He was suspended and sent to alternative school.  According to the district, "Taylor Bell did threaten, harass and intimidate school employees in violation of School Board policy and Mississippi State Law."

The district court upheld the suspension reasoning that Tinker v. Des Moines applied to off campus behavior, and his amounted to a material and substantial disruption.  Last week, in Bell v. Itawamba County School Board, the Fifth Circuit reversed:

Tinker could not afford the School Board a defense in this case because the summary-judgment evidence and materials do not support the conclusion that a material and substantial
disruption at school actually occurred or reasonably could have been forecasted.

Contrary 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. The Court has not decided whether, or, if so, under what circumstances, a public school may regulate students' online, off-campus speech, and it is not necessary or appropriate for us to anticipate such a decision here. Even if Tinker were applicable to the instant case, the evidence does not support the conclusion, as required by Tinker, that Bell's Internet-posted song substantially disrupted the school's work and discipline or that school officials reasonably could have forecasted that it would do so. Moreover, we reject the School Board's alternative argument that the plainly rhetorical use of violent language contained in Bell's song falls within this court's narrow holding in Ponce v. Socorro Independent School District, 508 F.3d 765 (5th Cir. 2007), that student speech threatening a Columbine-style mass school shooting was not protected by the First Amendment. Furthermore, in light of the rap's factual context, its lyrics' conditional nature, and the reactions of its listeners, we likewise reject the argument that Bell's rap song was excepted from First Amendment protections because it constituted a a true threat.

It is disturbing, but unsurprising, that the district court would have upheld this punishment in the first instance. Credit goes to the attorneys and the Fifth Circuit for taking this case serious.  But even more credit goes to Mr. Bell's tact.  He was careful from the outset to frame the intent of his message and wrap it in the cloak of free speech from his home.  Mr. Bell's allegations may or may not have been valid, and that does not really matter (unless the coaches bring defamation charges). The textbook exercise of his rights was likely his saving grace.

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