Court Reverses Previous Decision; Upholds Suspension For Student Who Rapped About School Employee Misconduct
from the this-speech-we-said-was-protected?-yeah...-I-guess-it-isn't-anymore... dept
Late last year, we covered a Fifth Circuit Court of Appeals decision pertaining to a high school student who was suspended from school because he uploaded a "disruptive" rap song to his Facebook account. While the song was vulgar and hinted at violence towards a school employee (who was allegedly taking advantage of female students), it was recorded and uploaded off-campus during non-school hours.
The divided decision found in favor of the student (Taylor Bell) and overturned his suspension. As the decision noted then, most of the claimed "disruption" was solely in the minds of the school administration.
At the disciplinary/due process hearing, no evidence was presented that the song had caused or had been forecasted to cause a material or substantial disruption to the school's work or discipline. In addition, there was no evidence presented indicating that any student or staff had listened to the song on the school campus, aside from the single instance when (Coach Michael) Wildmon had a student play the song for him on his cellphone in violation of school rules. Neither of the coaches named in the song attended or testified at the hearing, and no evidence was presented at the hearing that the coaches themselves perceived the song as an actual threat or disruption.Because of the division in opinions in the original panel's decision, an en banc review was granted. And the pendulum has now swung in the other direction and Bell's suspension has been upheld.
Primarily at issue is whether, consistent with the requirements of the First Amendment, off-campus speech directed intentionally at the school community and reasonably understood by school officials to be threatening, harassing, and intimidating to a teacher satisfies the almost 50-year-old standard for restricting student speech, based on a reasonable forecast of a substantial disruption. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (infringing otherwise-protected school speech requires “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities”). Because that standard is satisfied in this instance, the summary judgment is AFFIRMED.The 101-page decision, containing both additional concurrences and dissents, focuses more closely on the "disruptive" aspects of Bell's speech. Contrary to the original finding of the three-judge panel last year, the en banc review sees enough "disruption" to justify the school's actions.
Without learning, there can be little, if any, education. Without education, there can be little, if any, civilization.So, because the disruption could "reasonably" be "forecast" (even if there is little evidence such forecasted disruption ever occurred), the school did not err in punishing Bell for off-campus activities.
It equally goes without saying that threatening, harassing, and intimidating a teacher impedes, if not destroys, the ability to teach; it impedes, if not destroys, the ability to educate. It disrupts, if not destroys, the discipline necessary for an environment in which education can take place. In addition, it encourages and incites other students to engage in similar disruptive conduct. Moreover, it can even cause a teacher to leave that profession. In sum, it disrupts, if not destroys, the very mission for which schools exist—to educate.
If there is to be education, such conduct cannot be permitted. In that regard, 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. Put succinctly, “with near-constant student access to social networking sites on and off campus, when offensive and malicious speech is directed at school officials and disseminated online to the student body, it is reasonable to anticipate an impact on the classroom environment”. Snyder, 650 F.3d at 951– 52 (Fisher, J., dissenting). As stated, the school board reasonably could have forecast a substantial disruption at school, based on the threatening, intimidating, and harassing language in Bell’s rap recording.
Judge E. Grady Jolly, in a concurring opinion, goes even further than the majority decision (which did not examine the "true threat" aspects of Bell's rap track) and declares certain forms of student speech wholly unprotected.
Student speech is unprotected by the First Amendment and is subject to school discipline when that speech contains an actual threat to kill or physically harm personnel and/or students of the school; which actual threat is connected to the school environment; and which actual threat is communicated to the school, or its students, or its personnel.Not a statement anyone can really disagree with, but also an area the en banc panel didn't explicitly cover and also one mostly ignored by the school, which could have pursued criminal charges instead if they truly believed Bell's track was an "actual threat." (Instead, the school found Bell so "threatening" it didn't confront him about this track until nearly the end of the school day.)
The dissent, written by Judge James L. Davis, is scathing in its assessment of the majority's decision to grant deference to the presumed sanctity of the learning environment. In doing so, the majority has allowed two things to happen, both of them bad.
First, it has loosened the restrictions governing schools' punishment of students for off-campus behavior.
[T]he majority opinion obliterates the historically significant distinction between the household and the schoolyard by permitting a school policy to supplant parental authority over the propriety of a child’s expressive activities on the Internet outside of school, expanding schools’ censorial authority from the campus and the teacher’s classroom to the home and the child’s bedroom.Even worse, the opinion sets a precedent that implicitly states certain public figures may not be criticized by certain individuals.
Although mischaracterizing itself as “narrow” in scope, the en banc majority opinion broadly proclaims that a public school board is constitutionally empowered to punish a student whistleblower for his purely off-campus Internet speech publicizing a matter of public concern.Bell's rap song was a response to multiple complaints from female students about inappropriate comments and sexual overtures from two of the school's coaches. These complaints became sworn affidavits once the legal process was underway. So, even with the violent imagery, the track dealt mostly with the alleged misconduct of school employees. The en banc decision turns this sort of criticism into punishable behavior, especially if a school can "reasonably foresee" a possible disruption. Whether or not this disruption actually occurs is largely inconsequential.
Judge Davis says this is free speech, alright, if you like your "free speech" surrounded by scare quotes.
Even in the most repressive of dictatorships, the citizenry is “free” to praise their leaders and other people of power or to espouse views consonant with those of their leaders. “Freedom of speech” is thus a hollow guarantee if it permits only praise or state-sponsored propaganda. Freedom of speech exists exactly to protect those who would criticize, passionately and vociferously, the actions of persons in power. But that freedom is denied to Bell by the majority opinion because the persons whose conduct he dared to criticize were school teachers. If left uncorrected, the majority opinion inevitably will encourage school officials to silence student speakers, like Taylor Bell, solely because they disagree with the content and form of their speech, particularly when such off-campus speech criticizes school personnel.The majority does note that social media's ability to "bleed" into school life poses problems unanticipated by earlier decisions (like 1969's Tinker), but rather than explore that issue further, it simply decided on- and off-campus behavior were roughly inseparable if negative discussion of school employees in involved. The very low bar of "reasonably foreseeable disruption" grants schools leeway to arbitrarily punish off-campus speech. Anything can be "reasonably foreseeable," if enough imagination is applied and enough empathy is granted to these projections by the courts. And any post facto lack of disruption seemingly does nothing to harm schools' arguments in defense of their overreactions.
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Filed Under: fifth circuit, first amendment, free speech, rapping, students, taylor bell
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Right at last. In general, speech which is harmful -- or even empty -- should not be presumed valuable.
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Re: Right at last. In general, speech which is harmful -- or even empty -- should not be presumed valuable.
No one ever needed a heavily protected right to say exactly what people like to hear, after all.
I can guarantee you, that no matter what you say -- even a placeholder grunt with no actual words -- someone somewhere will be offended by it. If their feeling offended negates your right to freedom of speech, then no one has any right to freedom of speech.
AS for this forum, constitutional rights prevent the government from censoring you or punishing you for your speech. The constitution says nothing about private citizens on privately owned websites voting your comment down.
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Right at last. In general, speech which is harmful -- or even empty -- should not be presumed valuable.
You ALL just made a value judgment about MY speech right there, and some of you will even click the "report" button to censor it, so don't claim isn't well-based.
HA! I'm being censored in advance! Here's goes THIRD attempt...
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Re: Right at last. In general, speech which is harmful -- or even empty -- should not be presumed valuable.
this is a public website with private owners and they can censor you all they want
but i suspect you already know this and youre intentionally being obtuse
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Re: Right at last. In general, speech which is harmful -- or even empty -- should not be presumed valuable.
*clicks report*
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Re: Right at last. In general, speech which is harmful -- or even empty -- should not be presumed valuable.
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Re:
Have a DMCA vote.
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Hecklers beliefs
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Re: Right at last. In general, speech which is harmful -- or even empty -- should not be presumed valuable.
I made a judgement that it's empty, useless, and ignorant.
And I clicked report.
Unlike the student, users CAN choose to view your nonsense, and respond to it.
So take that "you're censoring me" bullshit and go fuck yourself with it. You're a useless troll, and I hope you sleep well at night knowing what a pathetic purpose you serve.
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OK, let's take this out of a school context for a moment and see how much sense it makes. If I threaten physical harm against, say, a member of the City Council of San Francisco, because of allegations of corruption and misconduct on that council member's part, should it make a difference whether or not I'm in San Francisco when I make the threat, when deciding whether or not I've done anything wrong?
Not at all. It implicitly states certain public figures may not be threatened by certain individuals. (A class which hopefully includes everyone.)
It almost sounds as if you're trying to insinuate that two wrongs make a right here. If he had a problem with the conduct of a teacher--and if the teacher actually did what he's being accused of, students definitely are justified in having a problem with it!--he should have handled it like a civilized being, rather than making threats like a thug.
The only time in which it would be acceptable to make threats of violence against the teacher is if he were present while the teacher actually attempted to harm one of the students, in order to get the teacher to back down. But that does not appear to even remotely resemble what happened. What we have is an accusation, which may or may not have been true, and assuming that it is and stirring up trouble is not how civilized people resolve disputes.
Frankly, it's better for him to learn this lesson now, even by means that feel harsh, (and doesn't *everything* that goes wrong in your life feel like a major, life-wrecking catastrophe at that age?) than to not learn it until much later on in life when threatening someone could actually have genuine life-ruining consequences.
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Re:
True threat analysis comes into play. You can -and should be able to- sound off as much as you'd like. However, if there is no credible threat, what have you done that's wrong?
Lets take your scenario further - tensions continue to rise, and somebody decides to burn an effigy of your City Council member or to shoot a paper target representation. That's action rather than words, actual violence being inflicted on something intended to represent an individual and yet both are considered a form of speech in the US, and is protected in that jurisdiction, regardless of the spatial relationship between the representation and the represented.
Any threatening speech must pass through the sieve of analysis before it is deemed credible and therefore illegal. The spatial relationship doesn't matter if there's no credibility.
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I agree with your argument here: two wrongs do not make a right... assuming (one more assumption) that some of the possible victims of that teacher did the right thing first. If they did report the teacher and he was still allowed to keep his position of authority over his victims, then there is not much left other than trying for a public outcry. It's sad, but it's often only then that some people are placed in front of their responsibilities.
"Not at all. It implicitly states certain public figures may not be threatened by certain individuals."
Except that the matter of "threat" has been mostly overlooked (and the Popehat post on the same subject underlines this more). Saying "I'll kill you" is not a threat in all contexts. It can often be seen as mere bluff, and the "rap" style of music often uses very harsh and violent statements without a single true intent of acting on those threats. Hence the requirement in actual justice court for "threats" to be "true threats" to lose "free speech" protection.
In this case, the level of "threat" has been brushed aside (not completely overlooked, but not given the consideration it deserves either). A simple "threat" that - according to the article - nobody actually believed in was enough to trigger censorship.
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Re:
Definition of the word threat (relevant extract): Definition of the word hyperbole:If we look at some examples, which is an actual threat and which is hyperbole.
Mason Wheeler is a complete dipstick and should be buried up to his eyeballs in the nearest cesspool.
and
Mason Wheeler, if you don't stop being a complete mug, I know where you live and I'll make sure you are buried in the nearest cesspool.
and
You've crossed the line and I'm coming for you Mason Wheeler
Which is a threat?
Well, none of them if I am his closest buddy (assuming Mason Wheeler has any buddies).
All of them if I am the local drug lord and Mason hasn't coughed up his latest payments.
The last one if I am the local fuzz that Mason has spit upon at his last arrest.
Unless the capabilities of the commenter are taken into account, then one cannot determine what is a threat and what isn't. The threat analysis being performed by those in power is the least credible part of the entire story.
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The rules are to protect our bad acts, and if you dare highlight those we will use the full force of law to crush you.
Be obedient to your masters.
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Re:
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You're just another brick in the wall
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All in all...
The poster bearer cried
Listen son, said the man with the gun
There's room for you inside
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Civil suit to follow
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Re: Civil suit to follow
There's a lot of 'two-wrongsing' goes on around here.
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Re: Civil suit to follow
Not inherently a cover up, although if they ignore the accusations which they've now admitted to having read, that could be problematic.
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Re: Civil suit to follow
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If they had investigated and, if confirmed, acted on the complaints against the two coaches rather that waiting to suspend an angry student for blowing the whistle on Facebook (outside the school grounds) then there would likely have been no disruption.
Instead it would seem their sole purpose is to disrupt the classroom with such shenanigans at every opportunity.
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Wonder how long before thought crime is terrorism starts being enforced as the new norm
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Nudging disenfranchisement towards terrorism
Have you not been paying attention during the last decade?
Considering how we treat the most public of whistleblowers who have exposed crimes against the people by government agencies, why would we expect people in even more disparate power systems to try to use normal channels?
And at what point did rap songs become actual threats? At what point does music become incitement?
To me this looks like a bunch of old people who are crabby because kids don't respect their authority... exasperated by their outright abuse of said authority.
If their intent was to teach that people in power cannot be trusted, I'm sure they've succeeded.
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Funny Court Pictures
The court opines that Bell meant (admitted that he meant) the rap verses to get back to the school, but that is a read herring. Suppose Bell had published this the day after his final departure from school: What would have happened then? Charge him with a crime, "Because we can't suspend him anymore." Any such case--and the prosecutor that brought it--would be thrown out of court so fast the prosecutor's hair would smoke. Would it truly offer less disruption to the school in that case? (Of course not.)
Which leads to the worst part of the argument, their remarkable conclusion that Bell's rap contained extremely violent imagery, which, "threatened, harassed, and intimidated school employees." But only a moron could conclude that the piece actually constituted a serious threat...even if they were unfamiliar with rap, in which such imagery is staple. If we busted everyone who said, "I'm going to kill [that moron]," who would feed the prisoners? Without a meaningful threat, where is the intimidation?
Does the rap offer a potential for disruption? Darn right: having your coaches accused of overt racism, sexism, probable sexual abuse and use of illegal drugs does indeed have a potential to disrupt the school. Of course, with that, we see what this is really about: the coaches must be a winning coaches. Just like we saw in the Sandusky scandal, anything goes so long as a coach is winning; apparently even an Appeals court must bow and scrape before a winning coach.
Taken on whole, the only thing I can say about this (as I exercise my rapidly evaporating Right to Free Speech) is that: The Fifth Circuit group picture sure must look funny with that many judges having their heads shoved that far up their own asses.
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Re: Funny Court Pictures
I couldn't find a group picture, but they do look pretty funny. ;)
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...intimidating a teacher impedes, if not destroys, the ability to teach
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Re: ...intimidating a teacher impedes, if not destroys, the ability to teach
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off campus and off hours
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Seriously, I've seen teachers deal with difficult students who didn't like them. Universally, the better approach was to engage these students. When teachers just resort to throwing there "authoritah" around to punish any student that doesn't fall in line, it tends to exasperate the problem.
Vulgar or not, the proper response to some kids teacher diss track is more speech from the teachers, not to throw the book at the student to shut him up.
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