En Banc Defeat in Teen Rapper’s Free-Speech Case

     (CN) – A Mississippi high school did not trample the First Amendment in suspending a teen who threatened two teachers in his rap music, the en banc Fifth Circuit ruled.
     Taylor Bell was a senior at Itawamba Agricultural High School in January 2011 when he posted a rap recording on his Facebook page about a pair of teacher-coaches whom he called out by name.
     One of the coaches reported the song to school principal the day after it was posted, and Bell was sent home from school after he was questioned about it.
     In the wake of this confrontation, Bell uploaded a finalized version of the song, complete with commentary and a picture slideshow, to YouTube.
     When Bell returned to school, an assistant principal removed him from class and told him he was suspended. The suspension itself lasted seven days, and Bell had to attend an alternative school until March 11.
     In Bell’s ensuing federal lawsuit, the teen claimed that he had been punished for engaging in constitutionally protected speech.
     Though the trial court granted the school summary judgment, a divided three-judge panel of the Fifth Circuit reversed last year.
     That ruling found that the “school board did not demonstrate that Bell’s song caused a substantial disruption of school work or discipline, or that school officials reasonably could have forecasted such a disruption.”
     The New Orleans-based court vacated that decision in favor of an en banc rehearing, however, and this time sided with the school by a 12-4 vote.
     Judge Rhesa Barksdale, who dissented from the panel opinion, wrote the majority decision last week, emphasizing the country’s current climate on school violence.
     “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,” Barksdale wrote.
     Bell failed to sway the court by characterizing himself as a whistle-blower, drawing attention to his coaches’ purported harassment of female students.
     “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,” a concurring opinion by three members of the majority states.
     The Aug. 20 majority ruling notes Bell’s “incredibly profane and vulgar rap recording had at least four instances of threatening, harassing, and intimidating language against the two coaches.”
     Specifically the teen spoke about wanting to “cap,” or shoot, one teacher, and use a Ruger pistol on the other.
     Crediting the school board’s conclusion that the rap involved “threats, harassment, and intimidation” against the coaches, Barksdale agreed that it was reasonable to believe that Bell’s recording “could have been forecast to cause a substantial disruption” at the school.
     “The speech pertained directly to events occurring at the school, identified the two teachers by name, and was understood by one to threaten his safety and by neutral, third parties as threatening,” Barksdale wrote.
     Also of note is that Bell wanted the school community to hear his song.
     “Bell produced and disseminated the rap recording knowing students, and hoping administrators, would listen to it,” Barksdale wrote.
     That Bell disseminated the son “off-campus, without the use of school resources” held little comfort for the majority.
     “Bell’s position is untenable,” Barksdale wrote. “It fails to account for evolving technological developments, and conflicts not only with our circuit’s precedent, but with that of every other circuit to have decided this issue.”
     The judges who ruled for Bell last year dissented from the majority.
     “The majority opinion … denigrates and undermines not only Bell’s First Amendment right to engage in off-campus online criticism on matters of public concern but also the rights of untold numbers of other public school students in our jurisdiction to scrutinize the world around them and likewise express their off-campus online criticism on matters of public concern,” Judge James Dennis wrote, joined by Judge James Graves. “In doing so, the majority opinion obliterates the historically significant distinction between the household and the schoolyard by permitting a school policy to supplant parental authority over the propriety of a child’s expressive activities on the Internet outside of school, expanding schools’ censorial authority from the campus and the teacher’s classroom to the home and the child’s bedroom.”
     Judge Edward Prado joined part of the Dennis dissent, but wrote “separately because off-campus online student speech is a poor fit for the current strictures of First Amendment doctrine, which developed from restrictions on other media.”
     “I hope that the Supreme Court will soon give courts the necessary guidance to resolve these difficult cases,” Prado added.
     Judge Catharina Haynes issued a separate dissent as well, as did Judge Graves.
     The Graves dissent notes that courts must adopt a different approach to these kinds of cases because “current technology serves to significantly blur the lines between on-campus and off-campus speech.”

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