Suspension for Facebook/YouTube Rap Video Critical of High School Coach Does not Violate First Amendment – Bell v. Itawamba County School Board
[Post by Venkat Balasubramani]
Bell v. Itawamba County School Board, 11CV00056-NBB-DAS (N.D. Miss.; Mar. 15, 2012) [.pdf]
Bell posted a rap video while he was a senior at Itawamba Agricultural School. The video, which was shared which over 1300 of his Facebook friends, criticized two coaches at the school and included the following phrases:
looking down girls’ shirts / drool running down your mouth / messing with the wrong one / gonna get a pistol down your mouth
middle fingers up if you can’t stand that nigga / middle fingers up if you want to cap that nigga
After the video came to the attention of the school, Bell was pulled out of class and met with the principal. Bell acknowledged making the video, but he said that the allegations of improper contact with female students were true. After a disciplinary hearing (where Bell was represented by counsel), Bell was suspended for seven days and transferred to an “alternative school” for the remaining five weeks of the term. The school district concluded that Bell “threatened, harassed, and intimidated school employees with the publication of his song.” Bell sued, alleging violations of his First Amendment and Due Process rights.
Off-campus conduct versus in-school conduct:
As in many school discipline cases based on social networking posts, the first question was whether the school had the authority to discipline Bell for conduct that ostensibly occurred off-campus. The court acknowledges mixed precedent on this issue, but says that the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District supports discipline for off-campus conduct. I’m not familiar with the precedent in this area, but Tinker involved on-campus speech, and I think it’s a stretch to see Tinker as clearly standing for the proposition that off-campus speech can be regulated under the same First Amendment standards as those articulated in Tinker. (The Supreme Court cases following Tinker have all dealt with on-campus or school sanctioned events.) That said, my instinct is that this may ultimately be a tough battle for students to win, at least where the speech at issue relates to the school, teachers, or administrators. (See Eric’s post on Layshock and Blue Mountain for differing results on this issue from a pair of Third Circuit cases: Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles.)
Whether the suspension was appropriate under Tinker:
The court says that high school students do not enjoy the same First Amendment rights as adults or people outside the school setting. According to the court, a school may discipline a student for speech where disruption is “reasonably foreseeable.” The court frames the issue as whether (1) Bell’s song “caused or tended to cause a material and/or substantial disruption” and (2) whether “it was reasonably foreseeable to school officials that the song would cause a material and/or substantial disruption.” Evidence in the record showed that one of the coaches heard of the song through his wife and he had also discussed the song with several students. After listening to the song, he complained to the principal and also testified that the song (and exposure of the song) had affected his teaching style. The other coach also testified as to supposed adverse effects to his teaching. This evidence, along with the fact that the song was published to Bell’s 1300 friends and uploaded to YouTube, where it would be exposed to an “unlimited internet audience,” leads the court to conclude that the school’s forecast of substantial disruption was reasonable. The court also affirms the school district’s conclusion that posting the song constituted “harassment and intimidation of teachers and possible threats against teachers.” Finally, the court says that the individual actors are entitled to qualified immunity.
The threat issue seemed like a red herring. Given the incidents of school violence, schools should undoubtedly take any and all threats seriously, but you have to wonder whether the courts (and the school) looked at the video and took it out of context. It’s a rap video…by a high school senior…posted to Facebook. Were the coaches seriously threatened by it? Did the student intend it to be a threat? Unlikely. The First Amendment allows schools to punish students based on speech that does not reach the level of a “true threat,” but it was strange to see the court sign off on the school’s conclusion that Bell threatened (or harassed or intimidated) the coaches based on the video. (Then again, even outside the school context, courts have grown increasingly willing to call YouTube and Facebook videos threats which can support criminal prosecutions. See Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a “True Threat” — US v. Jeffries; Federal Prosecution Over “Threats” on Craigslist – US v. Stock.)
The court’s conclusion on the disruption issue was also debatable. Tinker has spawned a morass of lower court decisions which struggle with whether Tinker required a “substantial threat of disruption” or a “reasonable forecast” of disruption and what sort of an evidentiary burden the school district bears in this context. Lower court cases go both ways on this, but here there didn’t seem like there was much—apart from the teachers’ own testimony that the video had an ‘adverse effect’ on their teaching style—to support the conclusion that there was a credible threat of disruption.
Finally, the qualified immunity decision was a tough hurdle for Allen. I didn’t check the complaint to see whether he brought claims for injunctive relief (clearing his record) and nominal damages, but I wondered whether this strategy could have avoided the harsh effects of qualified immunity.
School administrators should be able to punish students for causing disruption, and criticizing teachers, administrators and other students should warrant discipline in some instances, but I wonder if the court’s ruling gives short shrift to the First Amendment rights of students. If all that is required is some self-serving allegation of an “adverse effect” on teaching style, this means that a teacher can shut down student speech any time the student says something critical about the teacher. The court’s stamp of approval of the school’s conclusion that the video harassed and intimidated the teacher also made me think that the court didn’t have a very expansive view of the scope of student speech rights. The final thing that made me pause is that the student said the allegations of inappropriate contact between the coaches and students were truthful, and the court did not comment on this at all. Posting a rap song on Facebook and YouTube isn’t exactly the most appropriate way to bring something like this to the attention of school administrators, but if the allegations were true, this should change the First Amendment calculus somewhat.
In the old days, this would have been nothing more than hallway gossip, which many would view as harmless. Maybe Bell would have found a way to convey his message through the school newspaper or in an assembly. The same message can now be broadcast (as the court notes) to an “unlimited internet audience.” Indeed, Bell had 1300 friends, and his posting the video is a “publication” in the best and worst senses. It’s protected by the First Amendment, but it reaches the bulk of the school community in ways that might be impossible through hallway gossip or even through the school newspaper or a school assembly. We’re not used to students having a better ability to reach other students than the administration has. Students also don’t need to go through any channels to get their message out there. Maybe this shift in power causes administrators to overreact somewhat?
Eric posted about a pair of Third Circuit cases a couple of years ago. Not much has changed since then, and I think we can expect to see a ton of litigation around this issue, with little predictability. The Supreme Court recently denied cert on a pair of school discipline cases, so we’ll have to wait awhile to get clarity from the Court, to the extent the Court can be expected to articulate a bright line rule of any sort.
Added: here’s a link to what looks like the video in question: “T-Bizzle – PSK da Truth” (h/t Brad Wassom, who also covers the case).
Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles
Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech–TV v. Smith-Green
Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation–Doninger v. Niehoff
Private Facebook Group’s Conversations Aren’t Defamatory–Finkel v. Dauber
Ed Week: Judge Denies Speech Protection to Student’s Rap Song
Student Press Law Center: Judge upholds punishment of Miss. student who posted rap song on Facebook