Free speech often requires us to defend people we really don’t like. The cases that make it to the Supreme Court are the most extreme examples, whether it is Nazis marching through Skokie or religious cultists picketing the funeral of a dead soldier. This term, the Supreme Court is considering the case of a guy who wrote Facebook posts threatening to kill his wife and a female FBI agent under the guise of rap lyrics. Elonis v. United States, No. 13-983. One of the “lyrics” that he claimed was entitled to First Amendment protection said:
A Student Writes Some Rhymes About Coaches and Their Bad Behavior
On December 12, the Fifth Circuit released its opinion in Bell v. Itawamba County School Board, No. 12-60264 (5th Cir. 12/12/14). You can read the opinion here. It is the case of a high school student who heard stories about coaches who were sexually preying on female athletes and wrote and recorded a rap song to bring attention to the problem. Rather than dealing with the problem, the school chose to punish the student for harassing and threatening the poor coaches. The student sued to clear his name. The Federal District Court ruled in favor of the School District, holding that the school could suspend a student for actions he took off-campus on his own time which might possibly cause disruption at school but did not.
There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave.However, that is not the rap that I want to focus on in this article. Instead I want to discuss the case of Taylor Bell, a high school student who took the message "if you see something, say something" to heart and was punished for speaking out by his school. (Note: If you see something, say something is the message of a serious of anti-bullying public service announcements that regularly air on TV).
A Student Writes Some Rhymes About Coaches and Their Bad Behavior
On December 12, the Fifth Circuit released its opinion in Bell v. Itawamba County School Board, No. 12-60264 (5th Cir. 12/12/14). You can read the opinion here. It is the case of a high school student who heard stories about coaches who were sexually preying on female athletes and wrote and recorded a rap song to bring attention to the problem. Rather than dealing with the problem, the school chose to punish the student for harassing and threatening the poor coaches. The student sued to clear his name. The Federal District Court ruled in favor of the School District, holding that the school could suspend a student for actions he took off-campus on his own time which might possibly cause disruption at school but did not.
Two judges of the Fifth Circuit held that Supreme Court precedents that allow schools to censor disruptive on-campus speech or speech promoting drugs at a school sanctioned event which took place off-campus did not apply to this particular case about a student who wrote, recorded and posted a song outside of school time. Here are some more details. According to the majority opinion:
The song that he wrote was both vulgar and violent. It contained lyrics like “gonna get a pistol down your throat” and
Despite the song’s inflammatory content, the only time it was played in school was when one of the coaches’ wives asked him about it and the coach got a student to play it on his phone.
The School Strikes Back
Rather than investigating the coaches, the superintendent, the principal and the school’s attorney interrogated the aspiring rapper. He was ordered to leave school for the rest of the day and when he returned was told that he was being suspended immediately pending a disciplinary hearing.
The District Court Says Schools Are Entitled to Strike Back
Taylor and his mother sued for violation of his civil rights. They sought nominal damages and an order clearing his name. At a hearing in the case, one of the coaches testified that the song had affected him so that he felt like he had to refrain from activities that might be perceived as inappropriate and the other testified that after games, he felt compelled to keep his students in the gym until he could get in his car and leave. The District Court threw out the Bells’ suit.
The court concluded that, pursuant to Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the song’s lyrics “in fact caused a material and/or substantial disruption at school and that it was reasonably foreseeable to school officials the song would cause such a disruption.” Specifically, the court stated that Wildmon’s and Rainey’s testimony that the song “adversely affected” their teaching styles constituted an “actual disruption” to school activities. The court also concluded that it was “reasonably foreseeable” that the song, which “levies charges of serious sexual misconduct against two teachers using vulgar and threatening language and . . . is published on Facebook.com to at least 1,300 “friends” . . . and the unlimited internet audience on YouTube.com, would cause a material and substantial disruption at school.” Opinion, pp. 15-16.
The Court of Appeals Says Not So Fast
Thankfully, two of the judges on the Fifth Circuit panel to consider the case (both appointed by Democratic presidents) saw through the nonsensical rationalizations of both the school officials and the lower court.
In Tinker v. Des Moines Independent Community School District, the Supreme Court famously stated said that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, it allowed schools the authority to regulate speech which disrupted the school’s activities. In the particular case, wearing black armbands to protest the Vietnam War was not a disruption. In Morse v. Frederick, 551 U.S. 393, 403 (2007), the Court went one step further and said that schools could punish conduct advocating drug use at a school-sanctioned and school-sponsored event which occurred off-campus.
The Fifth Circuit panel slapped down the lower court finding that even if Tinker applied to a student’s speech which took place outside of school, the School had failed to present any evidence of a disruption. Indeed, because the school blocked access to Facebook, where the song was posted, the school could not even forecast that it might cause disruption. The mere fact that the coaches might have been embarrassed by the rap was not enough to punish the student.
As the majority explained:
I wish that the Court had gone one step further and said that Tinker does not apply to speech which takes place off-campus during non-campus hours. This case illustrates the tendency of governmental actors to cover up wrongdoing by punishing the messenger rather than actually addressing the problem.
The Dissent
Judge Rhesa Barksdale authored an extensive dissent. He argued that in the wake of Columbine and other school shootings that “school administrators must be afforded wide latitude in proactively addressing language that reasonably could be interpreted as a threat, harassment, or intimidation against members of the school community.” Opinion, p. 41. In my opinion, Judge Barksdale was way too deferential toward school authorities. School authorities should not be allowed to overreact to every pop tart chewed into the shape of a gun or cheerleaders who refuse to cheer for their rapists.
Coming Full Circle
In December 2010, Taylor Bell was an eighteen-year-old senior at Itawamba Agricultural High School with no record of any disciplinary problem aside from a single in-school suspension for tardiness. Bell is an aspiring rap musician, has written lyrics and music since he was a young boy, and began recording and seriously pursuing music in his early teens. In this respect, Bell considers himself an “artist.” Bell testified that several of his female friends at school told him before Christmas 2010 that two male athletic coaches at school, Michael Wildmon and Chris Rainey, had inappropriately touched them and made sexually-charged comments to them and other female students at school.Opinion, pp. 3-4.
***Bell admitted that he did not report these complaints to school authorities, but he explained that, in his view, the school officials generally ignored complaints by students about the conduct of teachers and coaches. During the Christmas holidays, while school was not in session, Bell composed and recorded a rap song about the female students’ complaints at a professional recording studio unaffiliated with the school. Bell did not use any school resources in creating or recording the song. According to Bell, he believed that if he wrote and sang about the incidents, somebody would listen to his music and that it might help remedy the problem of teacher-on-student sexual harassment.
The song that he wrote was both vulgar and violent. It contained lyrics like “gonna get a pistol down your throat” and
middle fingers up if you hate that nigga /Opinion, pp. 4, 5. Bell's lyrics were pretty nasty but so were the complaints which inspired them.
middle fingers up if you can’t stand that nigga /
middle fingers up if you want to cap that nigga.
Despite the song’s inflammatory content, the only time it was played in school was when one of the coaches’ wives asked him about it and the coach got a student to play it on his phone.
On January 6, 2011,Wildmon received a text message inquiring about the song from his wife, who had been informed of Bell’s Facebook posting by a friend. In response to Wildmon’s inquiry, a student allowed him to listen to the song on the student’s cellphone. Wildmon immediately reported it to the Principal, Trae Wiygul, who, in turn, informed Teresa McNeece, the Superintendent.Opinion, p. 8.
The School Strikes Back
Rather than investigating the coaches, the superintendent, the principal and the school’s attorney interrogated the aspiring rapper. He was ordered to leave school for the rest of the day and when he returned was told that he was being suspended immediately pending a disciplinary hearing.
At the disciplinary/due process hearing, no evidence was presented that the song had caused or had been forecasted to cause a material or substantial disruption to the school’s work or discipline. In addition, there was no evidence presented indicating that any student or staff had listened to the song on the school campus, aside from the single instance when Wildmon had a student play the song for him on his cellphone in violation of school rules. Neither of the coaches named in the song attended or testified at the hearing, and no evidence was presented at the hearing that the coaches themselves perceived the song as an actual threat or disruption.Opinion, p. 12. The Disciplinary Committee advised the student that he should “censor” himself (yes, they used those exact words). The Committee voted to uphold the School’s decision to place Taylor in an alternative school for the remainder of the nine week period and bar him from any school activities during that same time. Their stated ground was that he had harassed and intimidated the coaches and had violated an unspecified state law.
The District Court Says Schools Are Entitled to Strike Back
Taylor and his mother sued for violation of his civil rights. They sought nominal damages and an order clearing his name. At a hearing in the case, one of the coaches testified that the song had affected him so that he felt like he had to refrain from activities that might be perceived as inappropriate and the other testified that after games, he felt compelled to keep his students in the gym until he could get in his car and leave. The District Court threw out the Bells’ suit.
The court concluded that, pursuant to Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the song’s lyrics “in fact caused a material and/or substantial disruption at school and that it was reasonably foreseeable to school officials the song would cause such a disruption.” Specifically, the court stated that Wildmon’s and Rainey’s testimony that the song “adversely affected” their teaching styles constituted an “actual disruption” to school activities. The court also concluded that it was “reasonably foreseeable” that the song, which “levies charges of serious sexual misconduct against two teachers using vulgar and threatening language and . . . is published on Facebook.com to at least 1,300 “friends” . . . and the unlimited internet audience on YouTube.com, would cause a material and substantial disruption at school.” Opinion, pp. 15-16.
The Court of Appeals Says Not So Fast
Thankfully, two of the judges on the Fifth Circuit panel to consider the case (both appointed by Democratic presidents) saw through the nonsensical rationalizations of both the school officials and the lower court.
In Tinker v. Des Moines Independent Community School District, the Supreme Court famously stated said that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, it allowed schools the authority to regulate speech which disrupted the school’s activities. In the particular case, wearing black armbands to protest the Vietnam War was not a disruption. In Morse v. Frederick, 551 U.S. 393, 403 (2007), the Court went one step further and said that schools could punish conduct advocating drug use at a school-sanctioned and school-sponsored event which occurred off-campus.
The Fifth Circuit panel slapped down the lower court finding that even if Tinker applied to a student’s speech which took place outside of school, the School had failed to present any evidence of a disruption. Indeed, because the school blocked access to Facebook, where the song was posted, the school could not even forecast that it might cause disruption. The mere fact that the coaches might have been embarrassed by the rap was not enough to punish the student.
As the majority explained:
(W)e do not decide whether the Tinker “substantial-disruption” test can be applied to a student’s rap song that he composed, recorded and posted on the Internet while he was off campus during non-school hours. Rather, we decide only 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. With respect to the School Board’s alternative argument, we conclude that Bell’s song did not “gravely and uniquely threaten violence” to the school population such to justify discipline pursuant to this court’s narrow holding in Ponce that student speech that threatened a Columbine-style attack on a school was not protected by the First Amendment. We also conclude that Bell’s speech did not constitute a “true threat,” as evidenced by, inter alia, its public broadcast as a rap song, its conditional nature, and the reactions of its listeners.Opinion, pp. 39-40.
I wish that the Court had gone one step further and said that Tinker does not apply to speech which takes place off-campus during non-campus hours. This case illustrates the tendency of governmental actors to cover up wrongdoing by punishing the messenger rather than actually addressing the problem.
The Dissent
Judge Rhesa Barksdale authored an extensive dissent. He argued that in the wake of Columbine and other school shootings that “school administrators must be afforded wide latitude in proactively addressing language that reasonably could be interpreted as a threat, harassment, or intimidation against members of the school community.” Opinion, p. 41. In my opinion, Judge Barksdale was way too deferential toward school authorities. School authorities should not be allowed to overreact to every pop tart chewed into the shape of a gun or cheerleaders who refuse to cheer for their rapists.
Coming Full Circle
I have to admit that I do not have any rap music on my ipod. I am pretty sure Dr. Dre is not on my health plan and N.W.A. is about as familiar to me as New Kids on the Block. I once saw Wang Chung open for the Cars, but I don't know the Wu-Tang Clan. I could criticize rap music but it is more fair to say that I just don't get it, any more than my parents got the music I listened to.
Nevertheless, I see a huge difference between Taylor Bell and the Elonis case before the Supreme Court. In the Elonis case, the threat was the message. He wrote about wanting to hurt specific individuals with whom he was in conflict. His "art" was focused entirely on his antagonists. Taylor Bell, on the other hand, was not a violent person (unless you view tardies as a predictor of incipient dangerousness) and did not have a personal beef with the coaches. Instead, he tried to draw attention to perceived sexual abuse being committed by persons in authority which was being ignored by the higher ups. If the First Amendment protects anything, it should be the right of a citizen to criticize the government. The fact that this citizen happened to be a student does not make his speech any less valuable. Concern for school safety should not mean that school officials are above criticism.
I am admittedly not a huge fan of how Taylor Bell expressed himself. When I disagree with someone, I don't threaten to put a pistol down their throat or cap them and I certainly don't use the n-word (which I think is in bad taste for blacks to use as well as whites). It may be that in the world of rap that type of violent imagery is considered to be rhetorical overstatement not meant to be taken literally. However, consider how the following lyrics would fare under the school's standard of being able to ban any speech that might be considered intimidating:
High school students can be counted on to say immature things and to act in bad taste. (At least I did). The internet magnifies the potential for this to occur in the public eye. Given the substantial volume of stupid, immature or vulgar things that kids say, both on and off campus, administrators could never punish them all. Inevitably, an overly deferential standard would allow school administrators to silence the misanthropes and outcasts while ignoring misbehavior by protected classes such as the rich and the popular. As a result, I applaud Judges Dennis and Graves for standing up for Taylor Bell's speech rights. Given the sensitive subject of this case and the strongly worded dissent, I anticipate that this case will make it to the en banc Fifth Circuit and possibly even the Supreme Court. As a result, the case bears watching.
Final Thought
The irony here is that rap music has a well deserved reputation for treating women as sexual objects to be exploited by men. Here, a male student used rap to speak out against sexual exploitation of female student athletes. On the other hand, it was the guardians of propriety who seem to have been most interested in protecting the delicate sensibilities of the accused sex abusers. It is a good lesson that reality frequently upsets our preconceived notions. Sometimes the scary rapper can be the dude standing up for women's rights. That is something to celebrate (although I hope that he expands his vocabulary beyond the n-word and the f-word as he develops his art).
Nevertheless, I see a huge difference between Taylor Bell and the Elonis case before the Supreme Court. In the Elonis case, the threat was the message. He wrote about wanting to hurt specific individuals with whom he was in conflict. His "art" was focused entirely on his antagonists. Taylor Bell, on the other hand, was not a violent person (unless you view tardies as a predictor of incipient dangerousness) and did not have a personal beef with the coaches. Instead, he tried to draw attention to perceived sexual abuse being committed by persons in authority which was being ignored by the higher ups. If the First Amendment protects anything, it should be the right of a citizen to criticize the government. The fact that this citizen happened to be a student does not make his speech any less valuable. Concern for school safety should not mean that school officials are above criticism.
I am admittedly not a huge fan of how Taylor Bell expressed himself. When I disagree with someone, I don't threaten to put a pistol down their throat or cap them and I certainly don't use the n-word (which I think is in bad taste for blacks to use as well as whites). It may be that in the world of rap that type of violent imagery is considered to be rhetorical overstatement not meant to be taken literally. However, consider how the following lyrics would fare under the school's standard of being able to ban any speech that might be considered intimidating:
When we grew up and went to schoolThese lyrics are not vulgar or violent and have some artistic merit since they were included on Pink Floyd's multi-platinum album The Wall. However, if Taylor Bell had written these lyrics or, better yet, changed them to be about coaches and female athletes, the school still would have had grounds for punishing him under their don't embarrass the teachers standard or the district court's likely to result in disruption standard. Thus, the problem was not how Taylor Bell expressed himself but the very fact that he did.
There were certain teachers who would
Hurt the children in any way they could
By pouring their derision
Upon anything we did
And exposing every weakness
However carefully hidden by the kids
Hey teachers, leave those kids alone.
High school students can be counted on to say immature things and to act in bad taste. (At least I did). The internet magnifies the potential for this to occur in the public eye. Given the substantial volume of stupid, immature or vulgar things that kids say, both on and off campus, administrators could never punish them all. Inevitably, an overly deferential standard would allow school administrators to silence the misanthropes and outcasts while ignoring misbehavior by protected classes such as the rich and the popular. As a result, I applaud Judges Dennis and Graves for standing up for Taylor Bell's speech rights. Given the sensitive subject of this case and the strongly worded dissent, I anticipate that this case will make it to the en banc Fifth Circuit and possibly even the Supreme Court. As a result, the case bears watching.
Final Thought
The irony here is that rap music has a well deserved reputation for treating women as sexual objects to be exploited by men. Here, a male student used rap to speak out against sexual exploitation of female student athletes. On the other hand, it was the guardians of propriety who seem to have been most interested in protecting the delicate sensibilities of the accused sex abusers. It is a good lesson that reality frequently upsets our preconceived notions. Sometimes the scary rapper can be the dude standing up for women's rights. That is something to celebrate (although I hope that he expands his vocabulary beyond the n-word and the f-word as he develops his art).
