A full federal appeals court has ruled that a Mississippi high school student’s off-campus rap recordings that allude to shooting two teachers is not protected by the First Amendment.
The U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled 13-3 that school officials reasonably concluded that the rap video made by student Taylor Bell in 2011 was directed at school and threatened two teachers.
“Our holding concerns the paramount need for school officials to be able to react quickly and efficiently to protect students and faculty from threats, intimidation, and harassment intentionally directed at the school community,” said the majority opinion.
The case concerns recordings made by Bell when he was a senior at Itawamba Agricultural High School in Itawamba, Miss. Bell testified that several of his female friends at school told him that two male athletic coaches at the school had inappropriately touched them and made sexually-charged comments to them and other female students at school.
Bell testified that if he rapped about the alleged incidents, he believed somebody would listen to his music and that it might help remedy the problem of teacher-on-student sexual harassment at his school. (The full 5th Circuit, like lower courts to consider the case, held that it was inappropriate to consider the allegations against the two teachers.)
Bell’s lyrics included a character boasting to one of the teachers, “I’m going to get you with my rueger [sic],” a mispelled reference to a type of gun. And another line said, “going to get a pistol down your mouth.”
Bell posted videos of the songs on Facebook and YouTube. He later told a school disciplinary hearing that he knew the recordings would be viewed at school.
Bell was suspended and sent to an alternative school for six weeks. He and his mother sued the district on a First Amendment free speech claim. A federal district court ruled against him, but a three-judge panel of the 5th Circuit ruled 2-1 last year that Bell’s off-campus speech did not substantially disrupt school and that school officials could not have reasonably forecast that it would.
In its Aug. 20 decision in Bell v. Itawamba County School Board, the full 5th Circuit court held that Bell’s speech came under the analysis of the U.S. Supreme Court’s 1969 decision about student speech in Tinker v. Des Moines Independent Community School District.
“A speaker’s intention that his speech reach the school community, buttressed by his actions in bringing about that consequence, supports applying Tinker‘s school-speech standard to that speech,” Judge Rhesa Hawkins Barksdale wrote for the majority.
In a concurrence, Judge Gregg Costa said that “the problem for Bell is that his song—with its graphic discussion of violence against the coaches—goes well beyond blowing the whistle on the alleged harassment.”
Writing in dissent, Judge James L. Dennis (who had written the panel decision in the student’s favor), said Bell’s speech should be protected as that of a whistleblower.
“Bell’s song was not a disruption of school activities but rather was an effort to participate as a citizen in our unique constitutional democracy by raising awareness of a serious matter of public concern,” Dennis wrote. But the school board taught the student “that the First Amendment does not protect students who challenge those in power,” he said.
Another dissenter, Judge Edward C. Prado, said that he hoped the “Supreme Court will soon give courts the necessary guidance to resolve these difficult cases” on off-campus Internet speech by students.
A version of this news article first appeared in The School Law Blog.