Lawsplainer: How Did the Fifth Circuit Narrow Student Free Speech Rights?

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.

  1. 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
    my rueger

    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
    ring mutherfucker

    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


  1. Levi says

    I like that the sections "Does the school still at least still have to show disruption…" and "What's the bottom line?" appear to be quotes from the opinion rather than bolded interlocution.

  2. En Passant says

    Ken White August 24, 2015:

    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.

    Which is every petty totalitarian's wet dream. Keep your subjects guessing. If they have to guess, they stay in line.

    Taylor Bell is no Algernon Swinburne, but the majority standard would let school administrators outlaw a young Swinburne regardless of literary merit.

  3. lunchstealer says

    "and (3) accepting the school's assertion that it reasonably feared disruption even though evidence contradicted it. "

    Look, if suggesting that teachers change their behavior isn't disruptive, I don't know what is.

    This message brought to you by the American Federation of Teachers.

  4. NickM says

    The majority standard is murky and messy. The lead dissent gives some talismanic power to issues of public importance that would override threats, harassment, and intimidation. The Prado dissent is his typical mealy-mouthed attempt to agree with one side's reasoning and the other side's outcome.

    As long as future courts treat lines like "going to get a pistol down your mouth" as being necessary to find speech unprotected, I'm OK with the majority opinion.

  5. says

    If this makes its way upward, the content of the speech — on a matter of public concern, not directed toward another student — makes me slightly more optimistic about its chances at triggering a speech-protective opinion. Facebook-bullying another student, conducted from home, seems like it'd be much more likely to result in a speech-suppressive result. So there's that to take mild comfort in, if this goes further up.

  6. Mikee says

    So Elonis is free to obviously threaten his wife under the guise of "art", but a student can't make similar "art" that has less obvious threats? This fucking country….

  7. Jeff Walden says

    So Elonis is free to (really bad thing) but a student can't (similar, less bad thing)

    Some dress codes are constitutional in the school context yet clearly wouldn't be out of it. It's not immediately obvious that a student can't be subjected to greater restrictions on school-related speech than a member of the general populace. The question is really just how school-related the speech must be.

    (mostly commenting for the comment-subscribe, forgotten first time around)

  8. Penfold says

    Taylor still dropped a better rap than I could ever write. I could see how a teacher might feel threatened or harassed though, committing crimes and divorces are expensive and have a tendency to reduce one's standing in the community, and for the kids we must protect the teachers from someone rapping about their alleged illegal conduct.

  9. Quiet Lurcker says

    Am I dreaming, or does it seem like most, if not all, of the cases of this nature somehow involve rap lyrics?

    If that's true are judges and courts (either institutionally or personally) perhaps biased against rap and those who produce (write? perform? advocate?) it?

  10. Sacho says

    As Justice Oliver Wendell Holmes, Jr., wrote nearly a century
    ago: “[T]he character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Schenck v. United States, 249 U.S. 47, 52 (1919) (citation omitted).

    I'm surprised Ken didn't comment on this part of the ruling on "Page 14".

  11. Gare Reeve says

    IINAL. However, if I were a SCHOOL OFFICIAL, I'd be pissing my pants over this ruling, for the following reason:

    By declaring that they have a RIGHT to investigate and punish off-campus speech by, this creates an EXPECTATION to do so, and will probably leave them vulnerable for lawsuits if they fail to vigorously investigate all allegations of "bullying" and "harassment".

    And God help them if an emotionally fucked-up student commits suicide. The parents can claim that, since the school has the RIGHT to find and review every single student's social app page, every single day, to check to see if any student said anything remotely hurtful to any other student, and punish them accordingly and failed to do so, this means that they failed to "protect" their child before he or she fellated a shotgun barrel.

  12. says

    @Sacho: too angry.

    @Mikee: No, that's not even close to the holding of Elonis. Elonis didn't say what he said was protected. Elonis said he was entitled to have the jury decide whether or not he meant to threaten. Remanded for a new trial in light of that.

  13. says

    Mr. Reeve,

    School districts down where I practice have significant immunity from those sorts of claims. For state law claims, the district can claim sovereign immunity. For federal law and constitutional claims, I suggest you look up Deshaney v. Winnebago (decided 1989).

    But you are likely right about what districts will feel social pressure (as opposed to legal pressure) to do.

  14. Trent says

    Ken, appreciate the summary, what's the page number for the dissenting opinion? I'd prefer to not have to read the bullshit rationalizing the majority went through.

  15. DrJD says

    The initial 3-judge panel ruled in favor of Bell, so I assume this required at least two judges in support, and yet there was only one dissent among the en banc panel. Does this mean one of the original three was not on the later panel, or did someone change his or her opinion?

  16. Sad Panda says

    @Trent: Page 43.

    You might want to consider upgrading to a computer with both a control key *and* an F key.

  17. Trent says

    Sad Panda, the quality of the PDF led me to believe it was scanned, not printed and a scanned PDF is an image that can't be searched, fortunately I was mistaken on this item..

    In regard to the dissent. The article above leads someone to believe there is only one dissenting judge, I count more than that, three judges (HAYNES) at least dissent with one of the judges not concurring completely with the dissent opinion.

    The article had me flabbergasted that an entire En Banc circuit could come to the conclusion that students have no free speech with only one dissenting judge. I'm glad to see there is at least two (three if you count the dissent that would have only rejected the summary judgement) though I'd be happier if it had been a bare majority victory. I would hope they appeal to the supreme court and the court takes it and finally sets this straight. Schools should have no right to control student speech off campus regardless of content.

  18. Bob says

    Ken, did you not just violate copyright by republishing that drivel in its entirety in the notes?

  19. Mikee says

    RE: Bob

    It clearly falls under fair use reporting.

    RE: Ken

    Ah, thanks for clearing that up. Guess we'll see what the courts have to say about Elonis later then.

  20. Bloviator says

    Like the song goes; Land of the free.

    P.S. Except for when someone says something really, really mean online, because that stuff is scary!

    P.P.S. Also, if you say something we disagree with, because that stuff makes us uncomforable, and is also often really, really mean.

    P.P.P.S In all reality as authority figures we'd rather you just shut up.

  21. Richard says

    Ken, you really need to see a relationship counselor. Your lawsplainer half seems to have developed an abusive relationship with your law-ignorant half.

  22. Tim says

    @Quiet Lurcker: I think that we would have a much different ruling if the student had written lengthy prose in iambic pentameter and set it to the tune of some sweet sweet James Taylor melodies.

    Honestly though, did anyone actually look into the allegations made in his song? I mean we are talking about underage girls and school faculty……

  23. Jesus says

    I don't see how specifically threatening people with totally realistic, and fairly common, levels of violence dont constitue true threats. I mean if someone i knew posted a song about how they wanted to shoot me I would at least take it kind of seriously. Plus the school suspended the student which seems like a measured response, its not like he was expelled and arrested. If he had just sang about how the teachers were creeps and left out the threats then he would have been in a much better position.

  24. moioci says

    Justice Thomas commented in Morse: "Dit-dit-dit. Dibbitty-dibbity-dah. Dah-dah-dah. Dit-dit-di-dah-dah-DAH!"

  25. melK says

    Students now have the ability to disseminate instantaneously and communicate widely from any location…

    … ever since the invention of:
    * the telephone
    * the mimeograph
    * the fax machine
    * the radio

    Sorry, I'm not impressed by that argument.

  26. Peter says

    So by this standard teachers "harass" students all day long. Also, why should free speech protections not extend to school itself? Some incoherent notion of "discipline"?

  27. DanD says

    Quiet Lurcker says
    AUGUST 25, 2015 AT 5:06 AM

    Am I dreaming, or does it seem like most, if not all, of the cases of this nature somehow involve rap lyrics?

    A couple-three decades ago it would have been punk. Before that Rock in general, or folk Before that, jazz and blues. If you go back far enough, you get some medieval ballads that do the same thing. There have always been protest songs, and whoever they're about have always tried to suppress them.

  28. christo1 says

    It's possible that the judges deciding that speech isn't protected could be ruling symbolically to authority. The kid made clear hyperbolic language as is the case with artistic (kind of with rap…) expression about political topics. If this ruling were to be interpreted in other areas, such as posters, art, poems, tracts, etc., the judges would have ruled that a big "X" over the face of the coach with the words "Harasser" underneath his picture would have been ruled as a "threat".

    The threat then is not the true life or livelihood of the accused, but the threat to their authority, essentially. The kid's blowing the whistle on an authority, and must be punished. The inference one could draw here as well is that, like Penn State, much of the school board or faculty know of the harassment and wish to avoid scrutiny, and would thus bring up charges.

    Let's hope this kid appeals. Or that some good folks can start a legal fund to help the kid in bringing this to a higher court. It needs to be appealed.

  29. sibladeko says

    Call me crazy, but accusations against teaching faculty of impropriety with minors in this day and age of sensitivity would destroy entire departments.
    The fact they are trying to go for the First Amendment angle and not the whistleblower angle doesn't really make me line up behind the student.
    Wouldn't something like this warrant an investigation into the faculty's conduct?
    And depending on the results, couldn't this result in libel?