Last week, in Bell v. Itawamba County School Board, an en banc panel of the United States Court of Appeals for the Fifth Circuit spent 101 pages arguing over when students can be punished for off-campus speech, and ultimately significantly limited them.
Wait. You expect me to read a 101-page court opinion?
I don't expect you to read all the way through a tweet with big words.
Hey! Attitude! Are you going to explain this?
You expect me to explain a 101-page en banc decision with seven separate concurring and dissenting opinions?
You know you're going to to it.
Hop to it. First of all, what's a Fifth Circuit? And what's en banc?
The Fifth Circuit is the United States Court of Appeals for the Fifth Circuit. It's the federal court of appeals for the region covering Texas, Louisiana, and Mississippi.
A decision is "en banc" when it's made by all or most of the appellate judges of a particular circuit. Most appellate cases are heard and decided by a three-judge panel. If a party doesn't like the result, they can apply for the whole court to hear it en banc. It doesn't happen often, but it's more likely to happen in cases involving important legal issues.
So why'd the Fifth Circuit hear this case en banc?
Because it presented an important, controversial, and elusive question: when can a school impose punishment for a student's off-campus speech? Courts across the country have been dancing around that question for years.
So what did some student do to wind up in front of the Fifth Circuit?
Taylor Bell went to school in Mississippi. He thought a couple of coaches were sexually harassing some of his female classmates. Rather than report it to school authorities, he wrote a rap about it on his own time with his own resources, and posted it on Facebook. The rap, which suggests that Mr. Bell would be well-advised to learn a trade, is naturally insulting, profane, and full of rap tropes.1 A few parts of it were, in the words of the Fifth Circuit, "threatening, harassing, and intimidating":
1. “betta watch your back / I’m a serve this nigga, like I
serve the junkies with some crack”;
2. “Run up on T-Bizzle / I’m going to hit you with my rueger”;
3. “you fucking with the wrong one / going to get a pistol
down your mouth / Boww”; and
4. “middle fingers up if you want to cap that nigga /
middle fingers up / he get no mercy nigga”.
Bell — who admitted that he publicized the rap so that other students at the school could see it — uploaded the rap to YouTube. His school suspended him.
He's not exactly Dr. Dre.
So how did it get before the court?
Bell sued for violation of his First Amendment rights. The school district moved for summary judgment — that is, it asked the trial court to find that the undisputed facts before it showed that Bell could not win. The trial court granted the motion, finding that the undisputed facts showed that Bell aimed threatening and harassing expression at teachers at the school, justifying school punishment.
At first, a three-judge panel of the Fifth Circuit disagreed. They found that Bell's rap was protected by the First Amendment because he wrote it using his own computer at his own home and not during school, there was no showing that he actually disrupted school, and any threats in the rap were not "true threats" — that is, not something that could be taken in context as an expression of actual intent to do harm.
The school district didn't like that, and convinced the Fifth Circuit to hear the case en banc.
This isn't all new, is it? Haven't courts already decided about what free speech rights students have?
Sure. The high water mark for student free speech was Tinker v. Des Moins in 1969. There, faced with students disciplined for wearing black armbands to protest the Vietnam War, the Supreme Court held that students retain their free speech rights at school unless their speech causes substantial disruption of the educational process or interference with school activities, or might reasonably be expected to do based on the facts.
The Supreme Court has retreated somewhat from that proposition and backed educators' right to censor students since then. In 2007, in Morse v. Frederick, the Supreme Court found that school authorities were within their rights to discipline a student for flying a "Bong Hits 4 Jesus" banner at a school-sanctioned event, because the banner promoted illegal drug use in violation of school policy, even if it didn't cause actual disruption.
But the courts have not provided clear guidance on when schools may discipline students for off-campus after-hours speech that is directed at the school or other students. As I wrote back in 2010, that's been controversial for some time.
Doesn't that leave things a little vague?
Yes. Justice Thomas commented in Morse "“I am afraid that our jurisprudence now says that students have a right to speak in schools except when they do not.”
So what did the Fifth Circuit do?
They made a 101-page mess.
The en banc panel overturned the original panel and affirmed the trial court, agreeing that Bell's First Amendment rights did not protect him from school discipline based on the rap.
In the majority opinion, the court first noted that Bell was punished because the rap was "harassing" or "threatening," not because it was profane or vulgar. The court found that such speech can be punished even when uttered off-campus because new technologies give it an on-campus impact that can disrupt education, blurring the line between on-campus and off:
Students now have the ability to disseminate instantaneously and communicate widely from any location via the Internet. These communications, which may reference events occurring, or to occur, at school, or be about members of the school community, can likewise be accessed anywhere, by anyone, at any time. Although, under other circumstances, such communications might be protected speech under the First Amendment, 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.
The court went on to suggest that notorious school shootings and other campus violence show that educators "must be vigilant and take seriously any statements by students resembling threats of violence." As is the habit of modern courts, the Fifth Circuit relied on this trope despite the fact that schools have grown steadily safer, not more dangerous, since Tinker.
Off-campus speech may be punished, the court held,
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.
Okay. But what is a "threat"? What is "harassment"?
Good question. The court explicitly declined to adopt any "rigid standards." It did say, however, that "threats" need not be "true threats" to justify punishment:
Further, regardless of whether Bell’s statements in the rap recording qualify as “true threats”, as discussed in part II.B., they constitute threats, harassment, and intimidation, as a layperson would understand the terms. The Oxford English Dictionary defines: “threaten” as “to declare (usually conditionally) one’s intention of inflicting injury upon” another, 17 Oxford English Dictionary 998 (2d ed. 1989); “harass” as “[t]o wear out, tire out, or exhaust with fatigue, care, [or] trouble”, 6 id. at 1100 (emphasis in original); and “intimidate” as “[t]o render timid, inspire with fear; [or] to force to or deter from some action by threats or violence”, 8 id. at 7–8.
So: even though "threaten" and "harass" have specific legal meanings with constitutionally imposed boundaries, the court isn't talking about those meanings. The court is talking about any meaning you can get out of a dictionary.
Does the school at least still have to show disruption, or threat of disruption, to justify punishing a student for speech?
Yeah. But it's an extremely lenient standard. "[T]his is not a difficult burden, and their decisions will govern if they are within the range where reasonable minds will differ," the court said. Moreover, it suggested that anything that can be called threatening or harassing is inherently disruptive. "It equally goes without saying that threatening, harassing, and intimidating a teacher impedes, if not destroys, the ability to teach; it impedes, if not destroys, the ability to educate."
What's the bottom line?
Under this decision, if a student engages in any speech that might colloquially be called "threatening" or "harassing," and directs it at school, or teachers, or other students, they can probably be punished if the school can make even the most half-assed case that they were worried it would cause disruption.
That seems alarmingly broad and ambiguous.
That took 101 pages?
No, there were a whole bunch of concurring opinions ("we agree with the result but have things to add") and a dissenting opinion.
There are a few points worth noting. First, all of the judges acknowledged that the internet makes the on-campus/off-campus distinction difficult.
Second, Judge E. Grady Jolly suggested that the court should have offered a precis — a shorter, plainer, more explicit statement of the resulting rule. He suggested this:
Student speech is unprotected by the First Amendment and is subject to school discipline when that speech contains an actual threat to kill or physically harm personnel and/or students of the school; which actual threat is connected to the school environment; and which actual threat is communicated to the school, or its students, or its personnel.
But with respect to Judge Jolly I don't know what an "actual" threat is.
Third, several judges concurred to say that they read the opinion narrowly to only apply to speech that was "intentionally directed toward the school and contained threats of physical violence."
What about the dissent?
The dissent was very forceful. Here's how the dissenting judges characterized the ruling:
Although mischaracterizing itself as “narrow” in scope, the en banc majority opinion broadly proclaims that a public school board is constitutionally empowered to punish a student whistleblower for his purely off-campus Internet speech publicizing a matter of public concern. As if to enforce the adage that “children should be seen and not heard,” the majority opinion holds that the Itawamba County School Board did not violate the First Amendment when it suspended high school senior Taylor Bell for composing and posting a rap song on the Internet using his home computer during nonschool hours, which criticized two male teachers for their repeated sexual harassment of minor female students.
The dissent thinks the majority got it wrong by (1) not focusing on the fact that Bell's rap was about a matter of public concern, (2) expanding the Tinker rule that "disruptive" speech may be punished outside the schoolhouse door, even though that rule was premised on the unique nature of the school itself, and (3) accepting the school's assertion that it reasonably feared disruption even though evidence contradicted it. The dissent also pointed out that the opinion doesn't tell students when their speech is protected, because it makes them guess at what a layperson could perceive as intimidating or harassing or threatening.
So what now?
Now we wait for other circuits to take up the issue, and perhaps for the Supreme Court to resolve any split in the circuits. Meanwhile, if students think they know what they are allowed to say off campus, they are kidding themselves.
- Let me tell you a little story about these Itawamba
coaches / dirty ass niggas like some fucking coacha
roaches / started fucking with the white and know they
fucking with the blacks / that pussy ass nigga W[.] got
me turned up the fucking max /
Fucking with the students and he just had a baby /
ever since I met that cracker I knew that he was crazy
/ always talking shit cause he know I’m from daw-city
/ the reason he fucking around cause his wife ain’t got
no tidies /
This niggha telling students that they sexy, betta
watch your back / I’m a serve this nigga, like I serve
the junkies with some crack / Quit the damn basketball
team / the coach a pervert / can’t stand the truth so to
you these lyrics going to hurt
What the hell was they thinking when they hired Mr.
R[.] / dreadlock Bobby Hill the second / He the same
see / Talking about you could have went pro to the NFL
/ Now you just another pervert coach, fat as hell /
Talking about you gangsta / drive your mama’s PT
Cruiser / Run up on T-Bizzle / I’m going to hit you with
Think you got some game / cuz you fucking with some
juveniles / you know this shit the truth so don’t you try
to hide it now / Rubbing on the black girls ears in the
gym / white hoes, change your voice when you talk to
them / I’m a dope runner, spot a junkie a mile away /
came to football practice high / remember that day / I
do / to me you a fool / 30 years old fucking with
students at the school
Hahahah / You’s a lame / and it’s a dam shame /
instead you was lame / eat shit, the whole school got a
Heard you textin number 25 / you want to get it on /
white dude, guess you got a thing for them yellow
bones / looking down girls shirts / drool running down
your mouth / you fucking with the wrong one / going
to get a pistol down your mouth / Boww
OMG / Took some girls in the locker room in PE / Cut
off the lights / you motherfucking freak / Fucking with
the youngins / because your pimpin game weak / How
he get the head coach / I don’t really fucking know /
But I still got a lot of love for my nigga Joe / And my
nigga Makaveli / and my nigga codie / W[.] talk shit
bitch don’t even know me
Middle fingers up if you hate that nigga / Middle
fingers up if you can’t stand that nigga / middle fingers
up if you want to cap that nigga / middle fingers up /
he get no mercy nigga ▲
Last 5 posts by Ken White
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016
- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
- FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts - September 22nd, 2016