FOR IMMEDIATE RELEASEContact: Frank D. LoMonte, executive director703.807.1904 / firstname.lastname@example.org
In the case of a Mississippi student disciplined for a rapvideo about inappropriate behavior by school coaches that was posted toYouTube, the Student Press Law Center (“SPLC”) is asking a federal appealscourt to clarify that whistleblowing about school wrongdoing isconstitutionally protected speech.
The SPLC filed a friend-of-the-court brief Wednesday withthe 5th U.S. Circuit Court of Appeals in New Orleans, urging the court tooverturn a lower court’s March 15 order dismissing the student’s FirstAmendment claims. The district court ruling “sends the intolerable message thatschools may ban and punish even well-founded reports of employee misconduct,”the SPLC argues in its amicus brief.
“Because schools have so heavily censored on-campus media,it’s imperative that students have some uncensored vehicle they can use todiscuss their concerns about school issues and school personnel,” said attorneyFrank D. LoMonte, executive director of the SPLC. “This student chose anunnecessarily offensive way to make his point, but the precedent set by thiscase risks putting other student commentators and whistleblowers in danger. TheFifth Circuit needs to make it crystal clear that students have a constitutionalright to use their off-campus hours to complain about school conditions, evenif the complaints upset people and provoke a reaction on campus.”
In January 2011, Taylor Bell, then a senior at ItawambaAgricultural School near Tupelo, Miss., created a YouTube video of a rap songwith lyrics about what he claimed was inappropriate behavior by two athleticcoaches, including touching female students and leering down their shirts.Although the song used violent imagery and profanity, Bell testified that the songwas his attempt to call public attention to misconduct. The school learned ofthe video, suspended Bell and transferred him to alternative school on thegrounds that the song constituted “harassment and intimidation.”
In March, a U.S. district judge for the Northern District ofMississippi dismissed the Bell family’s lawsuit challenging the discipline asunconstitutional. Judge Neal Biggers ruled that, even though the video wascreated off-campus with no connection to school, the video was punishable underthe same legal standards that apply to on-campus speech because it was“reasonably foreseeable” that the lyrics would have a disruptive impact oncampus.
While acknowledging that Bell’s choice of language wasintemperate and perhaps deserving of punishment by his family, the SPLC arguesin its amicus brief that Judge Biggers went too far in permitting schoolpunishment of entirely off-campus expression merely because of the way peoplemight react to it on campus.
Noting that Secretary of State Clinton, in a recent speechto students at George Washington University, hailed the importance ofuncensored Internet access by using the example of schoolchildren in Syria whoused Facebook to call attention to the sexual abuse of students in their school,the SPLC wrote: “The very same online speech that Secretary Clinton held up asemblematic of the liberating power of the Internet in one of the Arab world’smost oppressive backwaters is, under the District Court’s ruling, subject togovernment punishment today in the Northern District of Mississippi.”
Rather than applying the legal standards that govern regulationof in-school speech, the SPLC urged the Fifth Circuit to send the case back tothe lower court to determine whether the speech was so extreme – i.e., realistically threateningviolence, or falsely defaming the coaches – that the speech would have beenunprotected by the First Amendment even if uttered by a non-student in a publicsetting.
The brief was prepared with the assistance of SPLC volunteerattorney Scott L. Sternberg of the law firm of Baldwin Haspel Burke &Mayer, LLC, in New Orleans. Mr. Sternberg, who worked for the SPLC as ajournalism fellow before law school, has a diverse civil litigation practiceincluding energy, admiralty and maritime law, in addition to teaching FirstAmendment law at the college level.
Since 1974, theStudent Press Law Center has served as the nation’s only nonprofit legalassistance service dedicated to the needs of student journalists and theeducators who work with them. More information about the work of the StudentPress Law Center is available on its website at www.splc.org.