To the surprise of exactly no one, kids are continuing to post material online that adults find inappropriate. Schools keep punishing them for it, and several parents are continuing to sue in response. The most recent example comes to us from Itawamba County, Mississippi.
On March 15, 2012, in Bell v. Itawamba County School Board, a federal judge in Mississippi upheld the suspension of high school senior Taylor Bell over a rap song that he wrote, recorded, and published on YouTube and Facebook. In addition to using “clearly vulgar language” to criticize two coaches at his school, Bell’s song repeatedly described the coaches as pedophiles who had molested female students, and contained references to the coaches getting “a pistol down [their] mouth[s]” and “capped” in response.
Bell’s school discovered the song in January 2011. He was suspended for 7 days, and spent 5 weeks at an alternative school.
The court began with the governing standard from the Supreme Court’s Tinker v. Des Moines decision, which held that student free speech rights end where they cause a substantial disruption in the classroom. While acknowledging Bell’s First Amendment right to free speech and the fact that the song had not been recorded on school property, the court determined that (1) the First Amendment does not protect the right to make comments “that reasonably could be perceived as a threat of school violence,” (2) such threats necessarily disrupt the school environment, and (3) student speech can be regulated when disruption to the school environment “is reasonably foreseeable.”
Here, the court found it reasonably foreseeable that Bell’s song would disrupt his school environment, and that they actually did cause disruption. The lyrics could easily be interpreted as a threat of violence against the two coaches. Bell’s 1,300 Facebook friends included several fellow students, and his audience on YouTube was “unlimited.” One of the coaches actually saw the video on a student’s cell phone while at school, and both coaches testified that their ability to teach was compromised by the knowledge that their students perceived them as pedophiles.
Bell apparently also argued that his song should be given heightened First Amendment protection because it commented on “matters of public concern.” This standard is often used in other facets of First Amendment law to describe speech that lies at the “heart” of what the First Amendment is intended to protect. But the court held that, in the context of student speech, Tinker‘s “substantial disruption” standard controlled regardless of the speech’s subject matter.
An interesting post-script to this decision is that as of today, a week after the court issued its decision, the song apparently remains available on YouTube. The following clip purports to be the song written by Bell (a/k/a T-Bizzle), and the lyrics do match those described in the court’s opinion: