January 2015 podcast: Protecting off-campus speech on social media

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By Student Press Law Center

Attorney Scott Colom discusses his victory in Bell. v. Itawamba County School Board, which addressed students’ ability to criticize school officials off campus.

Frank LoMonte: Welcome to the Student Press Law Center podcast, a monthly update on legal developments affecting those working in student media. I’m Frank LoMonte, executive director of the Student Press Law Center.

Today we’re here to talk about a subject that is increasingly tying our federal courts in knots across the country. It’s a scenario familiar to many working in the field of education and First Amendment law. A student posts something to a blog, a social media site, a video to a file-sharing site that a school considers to be offensive, inappropriate, bad taste, and maybe even worse. The school reaches out and punishes the student for this off-campus speech and the student challenges the discipline as violating his or her First Amendment rights.

The Supreme Court has yet to tell us the extent of school jurisdiction of off-campus speech, and in the absence of guidance from the Supreme Court, the lower courts are struggling to decide how much the old-time standards created in the 1960s and ‘70s in the bricks-and-mortar, paper-and-ink world can still apply, or not, to speech on social media, especially in the smartphone era when speech is portable as it’s never been before.

Well, recently the federal appeals court based in Louisiana, the 5th Circuit U.S. Court of Appeals, weighed in with a case called Bell v. Itawamba School Board, and the Bell case is about this very scenario: a student who publishes a video online, talking about his school but not using school property and not using school resources, and is disciplined for his speech.

With us to talk about the Bell case is Taylor Bell’s lead attorney, Scott Colom.

Scott is a graduate of the University of Wisconsin law school, he’s had a very illustrious but short career in his young life as an attorney. He’s already been a prosecutor, he’s been a municipal judge, he’s done a prestigious fellowship with the Skadden working for the Mississippi Center for Justice doing in public interest law and we’re very pleased to have in join us to talk about this important court ruling, which turned into a really strong validation of the first amendment rights of students to use their own time and their own property to speak about school events.

So Scott, congratulations on a really terrific outcome in the 5th Circuit case, and I guess start off if you would please by just explaining, what is it that young Mr. Bell did that caused him to come to the attention of the school and how did it play out?

Scott Colom: Thanks for that great introduction, Frank. I can tell you it’s a very interesting case. Taylor, it all started when Taylor heard from some female students at the school that two coaches were engaged in inappropriate communication and contact with them, and that school had had issue in the past with a teacher having an inappropriate relationship with a female student. And some of the students, at least in Taylor’s mind, felt like that situation had been swept under the rug.

So Taylor didn’t feel comfortable or confident that going to a teacher or an administrator would have any impact on stopping the behavior, and he also is an aspiring musician, he still is an aspiring musician, and he spent a lot of his free time writing, producing, recording music. He decided, probably for two reasons, commercial reasons and probably for reasons to address what he thought was inappropriate, decided to write and record a rap song. The topic was about the inappropriate conduct of the two coaches and he used familiar violent rap language. He was aggressive in his criticism of the coaches and vulgar in his criticism of his coaches.

I should add that he wrote the song away from the school, he recorded it in a studio away from the school, he never played it at the school, he never talked about the song at the school, he never did anything to bring the song to the school.

The school computers have Facebook blocks, Youtube Blocks and students are not supposed to have cell phones on campus, so all he did was record this song and upload it on Youtube, but other than that he did nothing to bring the song to the campus.

What happened, though, of course, is some students who heard it apparently brought it or somehow one of the coaches who was the subject of the criticism, his wife heard about the song, contacted him, he asked a student on campus to play the song on his cell phone, even though the student was not supposed to have a cell phone. And once he heard the song he brought it to the attention of the principal and some other people. Then they eventually decided to suspend Taylor and to put him into alternative school for several weeks. That’s the background of the case.

LoMonte: Obviously this is following a familiar pattern that those who follow this area of the law will see in cases like the Doninger case out of the 2nd Circuit, which is a very well-known case, the Layshock case out of the 3rd Circuit. A number of federal courts have had these types of scenarios in recent years where a student uses social media to criticize school employees, to comment on school conditions, not using school computers or speaking in the context of a school event, and the question becomes ‘does the school have jurisdiction to punish this speech?’

In Taylor Bell’s case it was a pretty harsh punishment, right? He was brought in and he was excluded from school, I believe it was for the balance of the school year, correct?

Colom: Right, he was a senior so it was a very important part of his high school experience that he missed.

LoMonte: An important fact to bring up, he was brought up in front of his school disciplinary committee that has hearings on these things. While the committee did find, as Scott describes that the speech was very harsh, it was very offensive, it used profanity, but it did not cross the line of actually threatening violence nor did either of the coaches come in and testify that they felt Taylor Bell was going to do violence, they just felt like they were affronted by this and it caused them to reassess their teaching styles was the testimony, that it caused them to revisit the way that they taught and in particular the way they behaved around young girls.

At that point, Scott and his dad, law partner, got involved in the case. Take us from there. First you go to federal district court and ultimately up to the 5th Circuit District Court of Appeals.

Colom: I was actually involved at that school board hearing, I represented Taylor at that first disciplinary hearing and I could tell you, being there, they actually didn’t call any witnesses. They just played the song, and I want to make this clear to the listeners, the only basis they really had for disciplining Taylor was because they disliked the music, they disliked what he was saying.

There was no testimony, there was no comments about what impact it had on the school’s operations, how the teachers might feel threatened, how the students might be disrupted because of it. It was quite frankly, the school attorney played the song, the disciplinary committee members heard it, commented about how they did not like the language, they talked about whether the allegations were true, Taylor stood behind the allegations made in the song, and it was a lecture to him about using vulgarity. It wasn’t any discussion about how the song was disruptive.

Even some of the people on the committee who heard the song understood that it was in the context of music and was not to be taken literally, which is why they said in their initial decision that that question of whether Taylor was threatening teachers was vague. I can say that as one of the few attorneys that was there from the very beginning.

What happened after that, though, is once the school board upheld that decision, again they didn’t put any evidence, there was no teachers to testify before the school board, it was nothing but they heard the song, they didn’t like the song, they upheld the recommendation for the disciplinary committee to punish him.

At that point we filed a lawsuit saying the punishment violated his First Amendment rights. We filed for our preliminary injunction to try to prevent him from having to continue in alternative school, and then there was a hearing. That hearing was the first time that the teachers actually came to testify any kind of effect the song had on them and their teaching. Before that, there really was no evidence before the committee members or the school board that there was any effect on their teaching. Before they made the decision to punish Taylor, there is almost no evidence that it was anything other than they disliked the song.

LoMonte: You mentioned the magic word of disruption. For those who follow this area of the law, the signature Supreme Court case about the First Amendment rights of students is the Tinker case from 1969, and disruption is sort of the triggering point for schools to argue there, that unless the speech crosses a threshold of disrupting the operations of the school, then it’s not punishable by the school. But again, the Tinker case was about on-campus speech and indeed it was speech the students were engaging in on their apparel by wearing armbands throughout the school day, even during the class time.

This is quite qualitatively different from that, just as you well explained, that not only did Taylor not bring the speech onto school grounds, he knew the social networks were blocked at the school and that it was actually quite unlikely to be viewed by anybody at the school and he was anticipating and hoping that it be read off campus, so it was actually, putting speech on social media was actually a uniquely ineffective way of getting it into the school and he knew that to be the case.

So the lawsuit was filed in federal district court and the district judge actually decided it in a very differential manner in favor or the school upholding their exercise of authority. Then you got your opportunity in front of the 5th Circuit Court of Appeals, which handed down a decision just on Dec. 12 of 2014. It had been percolating for quite a long time there.

Tell us about that process and that outcome.

Colom: Well, I’ll tell you that the district court opinion did not analyze the law as carefully as I thought it should have been. It did not focus in on what you said, which you described that great because the Supreme Court has never said that school districts have the authority to regulate off-campus speech with the Tinker standard. So the district court judge misinterpreted the law and just basically gave school districts the same authority to regulate off-campus speech as they do for on-campus speech, which I thought was problematic.

But also, I didn’t think the district court dealt with the repercussions of this decision and what that would have on all student speech away from school, and that’s what the 5th Circuit did in its opinion. We briefed it, and of course the school district briefed it, we argued it, it was a very active oral argument, the judges were very prepared, they asked a lot of great questions, and I think that the majority really focused in on the fact that one, probably most of adults who heard the song, and certainly I heard the song and thought it was vulgar, it was bad language, if Taylor had been my child I would have been upset with him for writing and recording music with those words. You know, I don’t condone the lyrics in the song, but once you get past the dislike of the song and realize that the First Amendment has to protect music and words that people dislike, that that’s not a basis to regulate it. Once you get past that, I thought the judges realized there was a lot of problems with just giving the school district blanket authority to classify the speech as threatening or violent without any basis and then saying that they can punish the student for it.

One of the differences between Taylor’s song and a lot o f the other speeches where the courts upheld the districts’ ability to regulate it, Taylor’s song was certainly, unequivocally a matter of public concern. When you’re talking about teachers having inappropriate contact with female students, had he just said that on the public square, he talked about that as a problem and he did that every day for two weeks, well that probably would have been disruptive for the school but certainly we wouldn’t thing of that as speech that is disruptive.

But for you to say we don’t like the fact that he cursed when he did that, so therefore the school can regulate it, that is problematic under the First Amendment.

LoMonte: Absolutely, and I think you focused on really a key point, that the district court lost sight of but that the majority at the 5th Circuit court focused in on. The Supreme Court told us just a few years ago in the Snyder case about Westboro Baptist church that it doesn’t matter how offensively you present your ideas, if you’re addressing matters of public concern, you get heightened First Amendment protection.

Certainly the way the Westboro Baptist Church people make themselves heard is every bit as offensive as Taylor Bell’s rap song, and yet that was found to be fully protected by the First Amendment, and so the majority two-to-one ruling by 5th Circuit correctly focused in on the nature and the intent of the speech, which is the kind of speech that is most in need of First Amendment protection. If the First Amendment doesn’t exist to allow people to blow the whistle on government wrongdoing, then it has no purpose at all.

Colom: Exactly. So it took the 5th Circuit panel a long time to get the right decision, but I certainly thing they did at least get the right decision.

LoMonte: One of the very important points in that case was, although other courts have sort of assumed that the Tinker standard is the right level of autho rity over school speech no matter where it occurs, especially in the social media age, the 5th Circuit was really quite skeptical of that. The majority was really doubtful that the Tinker standard is adequately protective of speech off campus, and that’s important because other courts, often on facts that were more sympathetic to the school such as a cyberbullying type of situation, have just gone along with the assumption that schools have the Tinker level of control, no matter where the speech is located.

That seems like a questionable assumption given that when a student is speaking off-campus, he is not addressing a captive in school audience in the same way that he is when he is in class speaking during class time.

Colom: That’s absolutely true, and I thin that when the Supreme Court does finally address the issue, that they are going to set up a height standard for off-campus speech for the reasons that you just identified. If you look at the Tinker case and the subsequent cases where the Supreme Court has upheld regulation of student speech, it’s been clear to me that the focus has been on the fact that public schools are basically required for students. Because of that, the Supreme Court recognizes that the school districts need to have a little more, a lot more authority on what is said at the schools by the students then controlling what is said by the students at home.

I think that, for what it’s worth, my opinion is that the Supreme Court eventually will determine that school districts do have some authority to prevent cyberbullying or some other form of speech that is problematic toward other students, but I don’t think they are going to extend a blanket Tinker standard to off-campus speech because it would be a dramatic expansion of government authority over citizens’ First Amendment rights in a way that, I can’t think of a good enough justification to give the state that much power.

LoMonte: One of the things that you and the Student Press Law Center, in our brief in the case, pointed out, is that this happens to be a case about social media. When you talk about off-campus speech you’re talking about all off-campus speech, which could include a kid marching in a parade, it could talk about a student speaking and addressing the school board, writing a letter to the newspaper, all manner of off-campus speech that’s directed at causing change at the school would conceivably be subject to school punitive authority, so it certainly seems like it undermines what schools say they are trying to accomplish by getting young people more civilly engaged in their communities to say ‘we want you to be civically engaged, but if we don’t like the level of politeness to the government, we can punish you for it.’ I think that’s quite important.

Let me also ask you to address for just another minute, I think another important point about this case is, when you are dealing with adult decision makers, who may be in their 50s and 60s who did not grow up listening to rap music, I think there is a real risk of a cultural and generational divide here and that students who like to play rap and listen to rap and who are comfortable with that speech, are going to wind up disproportionately singled out for punishment, and so it’s quite important that the circuit saw through the facial offensiveness of the words and recognized that, I think the statement has been made before that just like Eric Clapton didn’t shoot the sheriff, Taylor Bell didn’t intend to shoot the coaches either.

Colom: Ya, and that is a very important point. It really goes back to the judges remembering that the First Amendment does not allow us to judge the speech. We don’t get to say ‘we don’t like this speech. We don’t like these words.’ Unless it’s a true threat, and I thought the Watts case was very instructive and that’s why we focused in on it in our brief because when the gentleman was protesting Vietnam and said the threatening comments about Lyndon B. Johnson and was criminally convicted for that, the Supreme Court recognized that in that context, nobody would have taken that as a literal threat, not a reasonable person would have taken that as a literal threat.

And I think in the context of Taylor Bell’s song, there was very little evidence, in fact there is no evidence, that the school took it as a threat. If you just looked at the lyrics they were not a threat from Taylor to the coaches. I though that point of the majority opinion was very strong and they talked about that Taylor didn’t give the speech directly to the coaches, he made it to a public forum, and how in that context you have to say he is obviously expressing dissatisfaction with these coaches, and he is allowed to do that if he’s not doing it at school.

Like you said, the lyrics and the words in rap music are a lot more familiar with a younger generation of people and people in the younger generation are more accustomed to it, so just like music in the history of the world, music taste changes. It’s smart we’re not judging music based on our tastes.

LoMonte: Sure. As we know, it’s very well documented now that students of color are disproportionately singled out for discipline, oftentimes just for what they say and not for behaving in any type of violent or threatening way, and we certainly don’t want to do anything to exacerbate that problem by making rap music a punishable disciplinary offense. In closing I should point out that there is an asterisk on this case in January of 2015. The school district has moved for what is called an en banc rehearing, meaning that if they were successful in persuading the judges to do so, the entire complement of judges sitting on the 5th Circuit could rehear and potentially reconsider and overturn the case. ‘

It’s a 2-1 decision, so there is reason to believe one judge, possibly even more, who believe that the majority got it wrong, but on the other hand the rules of the 5th Circuit are very demanding for when a rehearing will be granted and it seems like, in the absence that this contradicted by existing 5th Circuit precedent, which the school is unable to say, that there really is no basis to rehear the case. It may very well be that the Supreme Court is the next word on this and it is certainly inevitable that they will take a case, sooner or later, that they will take a case about off-campus speech.

If they do I would be proud to go to war alongside Scott Colom. You’ve done an excellent job so far and you’ve been a great champion of the First Amendment.

Colom: I appreciate you saying that. Thank you and I look forward to being involved in any cases that are really protecting the First Amendment rights of anybody. It’s an important issue and I appreciate what you all do. Thank you for giving me the interview.

LoMonte: Well certainly. Thank you again, Scott Colom, for all of your efforts in this case and for joining us on the podcast. For those of you who are more interested in this case, there is a link to the 5th Circuit’s opinion Bell v. Itawamba School District on the SPLC.org website, along with other resources of how to protect your First Amendment rights as a student or as a teacher.

We hope you’ll follow the SPLC on Twitter @splc and call our hotline with any questions about your legal rights. The easiest way to get in touch with us is by email. That’s just splc@splc.org. Thanks so much for listening and we’ll talk to you next month.