The Supreme Court decided on February 29 not to grant review in a case involving a Mississippi high school student who was suspended for a rap video he recorded that was critical of two coaches who he thought had behaved inappropriately toward female students, the Associated Press reports.
The denial of this appeal means the disciplinary action against Taylor Bell at Itawamba Agricultural High School in Fulton, Mississippi, will stand. Mr Bell was a student at the school in 2011 when, during winter break, he recorded a rap video off-campus, at a professional recording studio. The video contained threatening language:
Betta watch your back.
I’m’a serve this nigga,
Like I serve the junkies with some crack
Mr Bell said he was right to speak about this and claimed that since he had made the video off-campus, the school couldn’t punish him for it without violating his free speech rights under the First Amendment. After he posted the song to his Facebook account and a relative made the school aware of its existence, the school board suspended him for seven days.
In support of the punishment, the school board said that (a) it had the right to suppress Mr Bell’s speech through punishment because it had caused a substantial disruption at the school, and (b) the seven-day suspension was appropriate because the words of the song constituted a “true threat” against school staff members.
Mr Bell sued, claiming his constitutional rights had been violated, but the trial court upheld the suspension, saying it made no difference where he recorded the song: it was threatening enough that it crossed the threshold from being protected off-campus speech about a matter of concern to being speech that caused too much of a disruption in school operations.
In August, the Fifth Circuit Court of Appeals, sitting en banc, ruled that Mr Bell’s First Amendment free speech rights weren’t violated when school officials suspended him. The “substantial disruption” standard, the precedent for which lies in the case known as Tinker v Des Moines Independent Community School District (1969), controlled the situation, the majority ruled, even though the student speech in question took place off-campus.
In that ruling, Bell v Itawamba County School Board, the Fifth Circuit didn’t have to decide whether Mr Bell’s speech constituted a true threat, because once the court determined the speech was subject to disciplinary action under Tinker, it could throw the question back to the school board as to whether the speech constituted a true threat.
There was significant dissent in the Fifth Circuit, however. The first dissenting opinion disagreed with the majority on several points, including these:
- [Bell] is entitled to summary judgment because his off-campus rap song was specially protected speech on a matter of public concern; and
- the School Board was not authorized by Tinker to censor students’ off-campus online speech.
The trial court granted summary judgment against Mr Bell in his original suit, and the first dissenting opinion felt that a summary judgment against him was premature. “Even [if] Tinker granted the School Board power to censor such speech, the School Board was not entitled to summary judgment under Tinker, because the evidence, viewed in the light most favorable to [Bell], does not support the conclusion that Bell’s speech caused a substantial disruption of school activities or justified a reasonable forecast of such a disruption by school officials.”
Another dissenting opinion said the majority “errs in its very application of the Tinker framework. As detailed in the panel majority’s opinion, the summary-judgment evidence simply does not support the conclusion, as required by Tinker, that Bell’s song substantially disrupted school activities or that school officials reasonably could have forecasted that it would do so.”
It said it was “unaware of a circuit or state supreme court going as far as the majority in this case and holding that threatening, harassing, or intimidating online speech that occurred purely off campus may be prohibited or punished.”
In other words, the dissenting opinion claimed that the song failed to rise to the level of speech that could be censored under the rules established in Tinker. Despite considerable dissent, however, the Supreme Court’s decision not to grant review in the case is final, and the decision of the Fifth Circuit stands. So does the suspension.