A small victory for student free speech came from the 5th Circuit on Friday, December 12, 2014. The case, Bell v. Itawamba County School Board, concerned a student hip-hop artist who wrote and shared a rap song via social media, which alleged that two teachers were sexually harassing other young female students.
After rumors flew all over the school that teachers Mr. Wildmon and Mr. Rainey were inappropriately touching girls and ogling them, student Taylor Bell, wrote and recorded a song that called the teachers out by name and vociferously criticized them as perverts. The lyrics were aggressive, full of f-bombs, and references to guns and violence, but not overly shocking for the genre. Bell shared the song on Facebook and YouTube, and no one took the aggressive nature of the lyrics to be intended as a true threat.
After Mr. Wildmon heard about the song, he listened to it on a cell phone at school and then reported it to the Principal and the Administration. The School Board stirred trying to figure out how to respond. It’s unclear why the students avoided formal accusations of harassment against the teachers, but the young girls did testify in Bell’s case that the teachers did, in fact, harass them.
Bell stated that he didn’t believe that the administration would do anything about the charges, so that’s why he didn’t report it, and perhaps he was right, since the school board seemed more concerned about the rap song than the potential allegations of sexual harassment of these young ladies.
A committee meeting was held to determine Bell’s punishment. One of the Committee members offered some constructive criticism for Bell’s future work, “I would say censor your material. . . . Because you are good [at rapping], but everybody doesn’t really listen to that kind of stuff. So, if you want to get your message out to everybody, make it where everybody will listen to it. . . . You know what I’m saying? Censor that stuff. Don’t put all those bad words in it. . . . The bad words ain’t making it better. . . Sometimes you can make emotions with big words, not bad words. You know what I’m saying? . . . Big words, not bad words. Think about that when you write your next piece.”
Then the Committee suspended Bell for 9 weeks claiming that the song harassed and intimidated the coaches in violation of Itawamba School Board Policy. Bell sued alleging a violation of his fundamental right to Free Speech. Both teachers testified that the song had made them act more cautiously around students to avoid the inappropriate appearances.
Since the teachers changed their behavior, the District Court ruled for the School Board applying the Supreme Court’s Tinker test, which states that student speech can be regulated if it is a material and substantial disruption of school functions.
The District Court ruled that Bell’s song was visible to his 1300 friends on Facebook.com and the “unlimited internet audience on YouTube.com,” and because the song levied serious charges of sexual misconduct and used “vulgar and threatening language,” it substantially disrupted school functions.
But the Appeals Court disagreed with the lower judges, since Bell wrote and recorded the rap song completely off-campus, he used his home computer to post it on the Internet when he was out of school, and there was no showing that it disrupted school functions in any way. If anything, it was the fact that Bell was suspended for the song that caused the disruption and not the song itself.
Furthermore, the Appeals Court stated that Tinker was not the appropriate test for off-campus speech since no material disruption was shown. The Court also denied the argument that the song was a “true threat” since the reactions of the listeners did not indicate that anyone saw it as that, and the conditional nature of the lyrics did not indicate that Bell intended to actually exact violence.
The Court stated that “speech is often provocative and challenging, and may strike at prejudices and preconceptions and have profoundly unsettling effects as it presses for the acceptance of an idea or cause”. Often that is the very type of speech that needs the most protection.
The Court finished by attempting to curtail the implications of their ruling, stating that they did not decide whether the Tinker test could ever be used against a student for speech conducted completely off-campus, but that even if it could be used, the showing of a material and substantial disruption was not made here.
That’s why I say this is a small victory for Speech. Since the Court’s assumption for arguendo‘s sake that Tinker could be used, does not give a clear message to School Boards in the future to keep their hands off of speech that occurs outside the walls of the school. If anything, it reinforces that Tinker could, in fact, be used to regulate a student’s off-campus speech as long as the School does a better job of showing a substantial and material disruption. That means that this issue is not going away anytime soon.
Here’s a link to the song that started it all:
PS Koaches – By: T-Bizzle