Friday, November 20, 2015

Taylor Bell Is Taking His Rap Song to the Supreme Court: Will It Finally Address Off-Campus Speech?

Taylor Bell has filed his petition for certiorari with the Supreme Court.  Taylor Bell was a Mississippi high school student who had heard that coaches at his school were sexually harassing female students. He says the school administration had been told before but did nothing, so he wrote a rap song and performed it on youtube to bring attention to the issue. He named coaches, recounted allegations, and made provocative allusions.  Before performing the song, he offered this preface:

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 . . .

For his deed, he was suspended and sent to alternative school.  According to the school district, "Taylor Bell did threaten, harass and intimidate school employees in violation of School Board policy and Mississippi State Law."  Taylor won his case before a three judge panel of the Fifth Circuit, but it was reversed by the en banc panel.  His petition to the Supreme Court is sure to draw a close look and will be supported by numerous amici.

Here is his summary of the case:

This case presents a First Amendment question of the utmost importance that has vexed school officials and courts across the country: whether this Court’s landmark decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), applies to students’ off-campus speech.  This question arises with startling frequency in an age when students communicate primarily through online social media such as Facebook, Instagram, and Twitter.  Only this Court can provide the guidance that students, parents, teachers, school administrators, and lower courts desperately need.

In a deeply fractured decision, the en banc Fifth Circuit held that the First Amendment allowed a Mississippi public high school to censor an 18-year-old senior’s entirely off-campus speech calling attention to sexual misconduct by school officials.  Petitioner Taylor Bell composed, recorded, and posted to the  Internet a rap song reporting that two of his school’s male teachers had sexually harassed and assaulted female students.  Bell wrote the song over winter break, recorded the song at a professional studio, and uploaded the song to Facebook and YouTube from his personal computer at home.  No one even heard the song at school, except one of the accused teachers at his own initiative.

The respondent School Board did not deny Bell’s accusations of sexual misconduct, but nonetheless suspended Bell and forced him to attend the county’s “alternative school” for the remainder of the nine-week term.  Pet. App. 9a. The court below upheld this punishment under Tinker, which held that schools may restrict speech “on the campus” that “would materially and substantially disrupt the work and discipline of the school.”  393 U.S. at 512-13.

The court below held that Tinker applies to “off-campus speech.”  Pet. App. 2a.  By posting his song online, the majority explained, Bell “intentionally direct[ed] his rap recording at the school community, thereby subjecting his speech to Tinker.”  Id. at 30a.  The majority acknowledged that five other circuits have adopted “differing standards” on whether, and if so when, “Tinker applies to off-campus speech.”  Id. at 21a, 23a.  Bell would have prevailed in the Third Circuit, which twice has held that schools violated the First Amendment by disciplining students for off-campus online speech.

Absent this Court’s intervention, the decision below will have far-reaching and deeply troubling consequences.  The majority’s holding “inevitably will encourage school officials to silence student speakers . . . solely because they disagree with the content and form of their speech.”  Id. at 50a (Dennis, J., dissenting).  And the mere “specter of punishment will deter [students] from engaging in off-campus expression that could be deemed controversial or hurtful to school officials.”  Id. at 77a.  The principal dissent thus castigated the majority for “obliterat[ing] the historically significant distinction between the household and the schoolyard,” and “expanding schools’ censorial authority from the campus and the teacher’s classroom to the home and the child’s bedroom.”  Id. at 47a. 

If Tinker applies to off-campus speech, schools could punish a student for expressing a controversial religious idea in church, writing a blog post against abortion, or advocating on a public sidewalk to cut the school’s football program—so long as a school official could envision a substantial disruption.  Bell’s song likewise addressed a matter of urgent public concern—child sexual abuse.  And while his song contains violent rhetoric—as is common in rap music—the Fifth Circuit expressly declined to hold that the song was a threat that would be unprotected under ordinary First Amendment principles.  Nor could the record remotely support such a holding.  The actions of school officials were manifestly inconsistent with any notion that Bell’s song was a threat.

Applying Tinker to off-campus speech has particularly devastating consequences in light of students’ ubiquitous use of online social media in the Internet age.  “[V]irtually any speech on the Internet can reach members of the school community” and therefore can be censored by school officials under the decision below.  Id. at 74a.  As a result, students risk life-altering consequences like suspension or expulsion any time they say anything potentially controversial on Facebook, Instagram, or Twitter.

The dueling opinions below agreed on one thing:  “Ultimately, the difficult issues of off-campus online speech will need to be addressed by the Supreme Court.”  Id. at 109a (Prado, J., dissenting); see also  id. at 24a (majority); id. at 44a (Costa, J., concurring).  This Court accordingly should grant certiorari to resolve this important and recurring issue, and to safeguard students’ freedom to express themselves—through music and otherwise—especially on matters of public concern.

Get the full brief here: Download Taylor Bell -- Cert Petition

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