What Students Post Online Can Get Them Suspended
FREE-SPEECH STATUS: IT'S COMPLICATED. PHOTOGRAPHER: TED ALJIBE/AFP/GETTY IMAGES
When I was a student in a private religious school, I looked with envy on the First Amendment rights of public school children, who couldn’t, I imagined, be disciplined for what they said off campus. Now a divided U.S. Court of Appeals for the 5th Circuit has held that I was wrong. According to the appeals court, a student can be suspended for posting rap lyrics on Facebook and YouTube that threatened a teacher at the school, because the speech was predictably disruptive. Depending on how Thursday's decision is interpreted, it could be used to limit students’ off-campus political speech in cases where no threat existed at all.
The facts of the case provide ample ammunition for both opponents and supporters of unfettered student speech. Taylor Bell, a student at Itawamba Agricultural High School in Itawamba County, Mississippi, wrote, recorded and posted online a rap criticizing two coaches at the school. The song alleged that they were harassing the female track and field athletes they coached. Race was an issue in the rap (not that the court of appeals acknowledged it). The coaches are white; the female athletes are black; and the student-rapper, who’s black, used charged racial language while accusing the coaches of attraction to black women.
If the rap had only accused the teachers, the case would still have been interesting. But what makes it so tricky is that the rap went further. It said that if anyone -- by implication a teacher -- challenged the rapper, he’d get hit “with my Ruger” or “get a pistol down your mouth.” Bell claimed that these phrases were generic rap bragging: tropes, not threats. The majority of the court thought, plausibly enough, that these were threats against the coaches.
To decide whether the school was permitted to discipline Bell, the court used a 1969 precedent, Tinker v. Des Moines Independent Community School District. That landmark case, which created the doctrine of school free speech, involved public school students who wore black armbands on campus to protest the Vietnam War. The court held that the students were protected by the First Amendment, and that their speech could be restricted only if it could reasonably be predicted to “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Mere “discomfort and unpleasantness” weren’t enough.
The Tinker case involved conduct that took place in school. The 5th Circuit said that the precedent applied to Bell’s rap, even though it was posted online. The court gave two major reasons: that the ubiquity of the Internet and social media makes it absurd to draw a line between in-school and out-of-school speech, and that, although Bell’s speech didn’t “portend” a Columbine-style shooting, nevertheless school violence has become a major current concern.
That left the question of whether Bell’s speech was disruptive to the school operation. The court said it was, because threats are disruptive.
The decision may sound like common sense. Nevertheless, a glaring problem with the court’s opinion is the idea that off-campus speech What Students Post Online Can Get Them Suspended - Bloomberg View: