Supreme Court denies review of Taylor Bell case on student off-campus, online speech

Updated 2/29, 4:50 pm, with comment from Taylor Bell’s attorney. 

The U.S. Supreme Court will not hear the case of the former high school rapper who was suspended for posting online a profanity-filled rap about two school coaches — despite splintered decisions from lower courts about students’ off-campus, online speech and the reach of school officials’ authority and discipline.

School officials at Itawamba Agricultural High School in Mississippi suspended Taylor Bell in January 2011 after he posted a profanity-filled rap video on Facebook and YouTube. Bell, who recorded the rap off-campus, wrote the song about sexual harassment complaints from female students about two male coaches at the school.

“Looking down girls shirts / drool running down your mouth / you fucking with the wrong one / going to get a pistol down your mouth,” Bell rapped.

Bell appealed his case to the U.S. Supreme Court in November after the U.S. Court of Appeals for the Fifth Circuit sided with the Mississippi school district. The Fifth Circuit ruled that the song caused a “substantial disruption” in school and that administrators reasonably understood it to be threatening, harassing and intimidating. Four Fifth Circuit judges dissented from the majority, at least in part.

The decision from the Fifth Circuit court overturned its previous 2-1 decision in which a panel of three judges ruled the song did not cause substantial disruption and the administrators’ discipline did not apply under the Tinker standard because the song was recorded off campus. Bell had appealed his case to the Fifth Circuit after a district court sided with the school district in 2012.

In 1969, the U.S. Supreme Court ruled in the landmark Tinker v. Des Moines Independent Community School District case that school officials may not censor or punish student speech unless it causes a substantial or material disruption to the school’s educational operation.

Lower courts have been divided on whether the Tinker standard applies to off-campus speech. Scott Colom, Bell’s attorney, said by refusing to hear the case, the Supreme Court continued to leave the First Amendment rights of students in an ambiguous state. He said the Court failed to review a critical legal issue — whether school officials can punish off-campus student speech. 

“I really believe deep down that Taylor would have won,” Colom said.

For now, Colom said the ambiguity in student free speech rights only gives the government more power to regulate speech through school discipline. 

This marks the third time the Supreme Court had dodged a chance to clarify the law of online student speech.

In 2011, the Third Circuit came down in favor of a Pennsylvania student who was suspended for 10 days for creating a parody profile of her principal, since the school district could not provide adequate proof that the profile disrupted school activities — but the judges couldn’t agree whether Tinker was the proper level of school authority for students’ speech outside of school. Also in 2011, the Fourth Circuit ruled in favor of a West Virginia school district that punished a student who created a MySpace page where students posted vulgar and offensive comments about another student — despite the page operating off campus without using school resources. In both cases, the Supreme Court declined the petitions for review.

In his petition to the Supreme Court, Bell asked the Court to consider whether the Tinker standard can be applied to a student’s off-campus speech. If the Tinker standard applies to off-campus speech, the petition argues school officials could punish students for a variety of speech as long as they could “envision a substantial disruption.”

“Students’ off-campus speech is entitled to full First Amendment protection,” the petition reads. “But at a minimum, off-campus speech should be governed by a more protective standard than Tinker, which was developed to balance the relevant considerations when students speak on campus.”

With students’ widespread use of social media, the petition also argues there would be “devastating consequences” to applying the Tinker standard to off-campus online speech, which could easily reach members of a school community.

“As a result, students risk life-altering consequences like suspension or expulsion any time they say anything potentially controversial on Facebook, Instagram, or Twitter,” the petition states.

In December, a number of high-profile rap stars, including T.I., Big Boi and Killer Mike, submitted a brief to the Supreme Court in support of Bell’s petition, arguing the school district had censored a student for his art and perpetuated unfair stereotypes by “mischaracterizing often-used rap music phrases as ‘threats.’”

Along with the rap stars, the Student Press Law Center filed a friend-of-the-court brief to the Supreme Court in support of Bell’s petition.

“If this Court does not correct the Fifth Circuit’s rationale, and place a sensible limit on the reach of Tinker authority, this Court will be clearing the way for school officials to silence students who speak up about concerns the officials may disagree with or that may reflect poorly on the school,” the brief says.

In the majority opinion for the Fifth Circuit decision, Judge Rhesa Hawkins Barksdale wrote that “threatening, harassing, and intimidating” a teacher can destroy the ability to educate, teach and create “the discipline necessary for an environment in which education can take place.”

“The real tragedy in this instance is that a high-school student thought he could, with impunity, direct speech at the school community which threatens, harasses, and intimidates teachers, and as a result, objected to being disciplined,” Barksdale writes in the opinion.

Barksdale also pointed to “numerous, recent examples of school violence” where school administrators and parents failed to identify warning signs after students signaled violence through speech, writing or actions.

In the four written dissents, most said the Tinker standard should not apply to students’ off-campus speech, or it should at least be modified.

Writing in dissent, Judge Edward C. Prado wrote that circuit courts and state supreme courts are divided on whether off-campus student speech applies under Tinker. He also wrote that other courts have decided the Tinker standard applies when it is foreseeable that the speech can reach school through electronic devices or, as decided in the Pennsylvania Supreme Court case J.S. v. Bethlehem Area School District, if there is a “sufficient nexus between the website and the school campus to consider the speech as occurring on campus.”

“I hope that the Supreme Court will soon give courts the necessary guidance to resolve these difficult cases,” Prado wrote.

Instead, the Fifth Circuit’s ruling in the Bell case will stand. 

As for Bell, Colom said he is sure to be disappointed with the decision, but was happy that he had received the support from fellow rappers.

SPLC staff writer Ryan Tarinelli can be reached by email or at (202) 974-6318.

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