A Rap Song Posted To Social Media By A Student Is Unprotected By The First Amendment

First Amendment Protection—Out Of School Speech—The United States Court of Appeals For The Fifth Circuit Holds That A Rap Song Posted To Social Media By A Student Is Unprotected. —Bell v. Itawamba County School Board, No. 12-60264, 2015 U.S. App. LEXIS 14630 (5th Cir. Aug. 20, 2015).

Rachel Melchor*

The First Amendment states that, “Congress shall make no law…abridging the freedom of speech.”  U.S. Const. amend. I.  In our increasingly technological world, the Internet presents new challenges for school administrators and how to balance school safety and students’ constitutional rights.  Bell v. Itawamba Cnty. Sch. Bd., No. 12-60264, 2015 U.S. App. LEXIS 14630, at *19 (5th Cir. Aug. 20, 2015) (citing Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1064 (9th Cir. 2013)). 

This challenge is readily apparent in the recent case of Bell v. Itawamba County School Board.  No. 12-60264, 2015 U.S. App. LEXIS 14630 (5th Cir. Aug. 20, 2015).  Taylor Bell, a student at Itawamba Agricultural High School in Itawamba County, Mississippi, created a rap, and subsequently posted the rap to YouTube and Facebook, away from the school and without using school resources.  Id. at *2.  In the rap, Bell references school teachers and “violent acts to be carried out against them.”  Id.  The Itawamba County School Board took disciplinary action against Bell for the rap after finding “the language as threatening, harassing, and intimidating the teachers.”  Id.  After the Circuit Court granted summary judgment in favor of the school board, Bell argued on appeal that, “the school board violated his First Amendment free-speech rights by temporarily suspending him and placing him in an alternative school for the six weeks remaining in the grading period.”  Id. at *25.  Bell supports his argument by contending that, “Tinker does not apply to off-campus speech, such as his rap recording; and, even if it does, Tinker’s ‘substantial disruption’ test is not satisfied.”  Id.

The Tinker case provides the standard for balancing school interests with students’ First Amendment rights, holding, “a student ‘may express his opinions…if he does so without materially and substantially interfere[ing] with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.’”  Bell, 2015 U.S. App. LEXIS 14630, at *22 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969)).  The court in Shanley furthered this balancing standard by holding that, “this standard can be satisfied by showing a disruption has occurred, or by showing ‘demonstrable factors that would give rise to any reasonable forecast by the administration of ‘substantial and material’ disruption.’”  Id. at *22  (quoting Shanley v. Ne. Indep. Sch. Dist., Bexar Cnty., Tex., 462 F.2d 960, 974 (5th Cir. 1972)).

In analyzing Bell’s contentions in light of the Tinker standard, the Court took into consideration that when Tinker was decided, “the Internet, cellphones, smartphones, and digital social media did not exist.”  Id. at *27.  The court reasoned that, “off campus threats, harassment, and intimidation directed at teachers create a tension between a student’s free-speech rights and a school official’s duty to maintain discipline and protect the school community.”  Id. at *28.  The court stressed the importance of the need for school officials to be able to be proactive when it comes to threats, intimidation, and harassment directed at the school community.  Id. at *30.  Accordingly, the Fifth Circuit Court held that, “Bell’s admittedly intentionally directing at the school community his rap recording containing threats to, and harassment and intimidation of, two teachers permits Tinker’s application in this instance.”  Bell, 2015 U.S. App. LEXIS 14630, at *33.  The Court established a reconstructed version of the Tinker standard, explaining that, “when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimidate a teacher, even when such speech originated, and was disseminated, off-campus without the use of school resources,” Tinker governs. Id. at *37.

The Court went on to consider the issue of “actual disruption or reasonably is forecast to cause one.”  Id. at *41 (citing Tinker, 393 U.S. at 514).  Factors that are considered when determining an actual disruption or reasonable forecast to cause one, “include: the nature and content of the speech, the objective and subjective seriousness of the speech, and the severity of the possible consequences should the speaker take action.”  Id. at *43.  After applying precedent and the facts of Bell’s argument, the Court held that “a substantial disruption reasonably could have been forecast as a matter of law.”  Id. at *44.

The Bell case calls attention to the emerging issue involving the conflict between protecting school communities and students’ First Amendment free speech in an increasingly technological world.  The court in Bell found that the Tinker standard goes beyond the school boundaries, and into the realm of off-campus speech.  Bell, 2015 U.S. App. LEXIS at *17.  This extension implicates the First Amendment rights of students.  This issue makes it increasingly difficult for school boards to draw the line between protecting the school community, and not infringing on protected speech.  This matter can make it challenging when a school board is trying to take proactive measures to combat school violence, but on the other hand needs to decipher what amounts to an actual disruption or reasonably is forecast to cause one.   The issue of technology and free speech can pose a challenge for students in how to filter their speech to ensure they do not cross the line.  Students will likely have difficulty when utilizing social media platforms to express themselves and speaking with classmates about issues that they have encountered both in and out of school.  Both interests—free speech and school protection—are equally important; therefore, proper application and uniformity of this balancing test is essential to ensuring both protection of school communities and students’ free speech.  With the emergence of new technology, the Supreme Court will likely begin seeing many cases similar to the Bell case, and must determine the appropriate balancing test in order to ensure uniformity across the states.

*Rachel is a second year law student at the University of Baltimore School of Law. She is currently serving as Staff Editor for Law Review, Vice President of the Women’s Bar Association, Secretary for the Criminal Law Association, and Law Scholar for Professor Dolin. She is passionate about criminal law, civil litigation, and domestic violence advocacy.

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