Taylor Bell v. Itawamba County School Board

Case: 12-60264 Document: 00513162565 Page: 1 Date Filed: 08/20/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 20, 2015

No. 12-60264

Lyle W. Cayce

Clerk

TAYLOR BELL; DORA BELL, individually and as mother of Taylor Bell,

Plaintiffs - Appellants

v.

ITAWAMBA COUNTY SCHOOL BOARD; TERESA MCNEECE,

Superintendent of Education for Itawamba County, Individually and in her

official capacity; TRAE WIYGUL, principal of Itawamba Agricultural High

School, Individually and in his official capacity,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH,

BARKSDALE, DENNIS, CLEMENT, PRADO, OWEN, ELROD,

SOUTHWICK, HAYNES, GRAVES, HIGGINSON and COSTA, Circuit

Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Away from school or a school function and without using school resources

(off-campus speech), Taylor Bell, a student at Itawamba Agricultural High

School in Itawamba County, Mississippi, posted a rap recording containing

threatening language against two high school teachers/coaches on the Internet

(first on his publicly accessible Facebook profile page and then on YouTube),

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intending it to reach the school community. In the recording, Bell names the

two teachers and describes violent acts to be carried out against them.

Interpreting the language as threatening, harassing, and intimidating the

teachers, the Itawamba County School Board took disciplinary action against

Bell.

Bell claims being disciplined violated his First Amendment right to free

speech. On cross-motions for summary judgment, the district court ruled, inter

alia: the school board, as well as the school-district superintendent, Teresa

McNeece, and the school principal, Trae Wiygul, acting in their official

capacities (the school board), acted reasonably as a matter of law. Bell v.

Itawamba Cnty. Sch. Bd., 859 F. Supp. 2d 834 (N.D. Miss. 2012).

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.

I.

On Wednesday, 5 January 2011, Bell, a high-school senior, posted a rap

recording on his public Facebook profile page (and later on YouTube), using

what appears to be a representation of a Native American as the rap

recording’s cover image. (His high-school mascot is a Native American.) The

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recording, in part, alleges misconduct against female students by Coaches W.

and R.

Although there are three different versions of the transcribed rap

recording in the summary-judgment record, the school board stipulated, at the

preliminary-injunction hearing for this action, to the accuracy of the following

version provided by Bell, who refers to himself in the recording as “T-Bizzle”.

(Accordingly, except for deleting part of both coaches’ names, the numerous

spelling and grammatical errors in the following version are not noted.)

Let me tell you a little story about these Itawamba

coaches / dirty ass niggas like some fucking coacha

roaches / started fucking with the white and know they

fucking with the blacks / that pussy ass nigga W[.] got

me turned up the fucking max /

Fucking with the students and he just had a baby /

ever since I met that cracker I knew that he was crazy

/ always talking shit cause he know I’m from daw-city

/ the reason he fucking around cause his wife ain’t got

no tidies /

This niggha telling students that they sexy, betta

watch your back / I’m a serve this nigga, like I serve

the junkies with some crack / Quit the damn basketball

team / the coach a pervert / can’t stand the truth so to

you these lyrics going to hurt

What the hell was they thinking when they hired Mr.

R[.] / dreadlock Bobby Hill the second / He the same

see / Talking about you could have went pro to the NFL

/ Now you just another pervert coach, fat as hell /

Talking about you gangsta / drive your mama’s PT

Cruiser / Run up on T-Bizzle / I’m going to hit you with

my rueger

Think you got some game / cuz you fucking with some

juveniles / you know this shit the truth so don’t you try

to hide it now / Rubbing on the black girls ears in the

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gym / white hoes, change your voice when you talk to

them / I’m a dope runner, spot a junkie a mile away /

came to football practice high / remember that day / I

do / to me you a fool / 30 years old fucking with

students at the school

Hahahah / You’s a lame / and it’s a dam shame /

instead you was lame / eat shit, the whole school got a

ring mutherfucker

Heard you textin number 25 / you want to get it on /

white dude, guess you got a thing for them yellow

bones / looking down girls shirts / drool running down

your mouth / you fucking with the wrong one / going

to get a pistol down your mouth / Boww

OMG / Took some girls in the locker room in PE / Cut

off the lights / you motherfucking freak / Fucking with

the youngins / because your pimpin game weak / How

he get the head coach / I don’t really fucking know /

But I still got a lot of love for my nigga Joe / And my

nigga Makaveli / and my nigga codie / W[.] talk shit

bitch don’t even know me

Middle fingers up if you hate that nigga / Middle

fingers up if you can’t stand that nigga / middle fingers

up if you want to cap that nigga / middle fingers up /

he get no mercy nigga

(Emphasis added.)

At the very least, this incredibly profane and vulgar rap recording had

at least four instances of threatening, harassing, and intimidating language

against the two coaches:

1. “betta watch your back / I’m a serve this nigga, like I

serve the junkies with some crack”;

2. “Run up on T-Bizzle / I’m going to hit you with my rueger”;

3. “you fucking with the wrong one / going to get a pistol

down your mouth / Boww”; and

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4. “middle fingers up if you want to cap that nigga /

middle fingers up / he get no mercy nigga”.

Bell’s use of “rueger” [sic] references a firearm manufactured by Sturm, Ruger

& Co.; to “cap” someone is slang for “shoot”.

A screenshot of Bell’s Facebook profile page, taken approximately 16

hours after he posted the rap recording, shows his profile, including the rap

recording, was open to, and viewable by, the public. In other words, anyone

could listen to it.

On Thursday, 6 January, the day after the recording was posted, Coach

W. received a text message from his wife, informing him about the recording;

she had learned about it from a friend. After asking a student about the

recording, the coach listened to it at school on the student’s smartphone

(providing access to the Internet). The coach immediately reported the rap

recording to the school’s principal, Wiygul, who informed the school-district

superintendent, McNeece.

The next day, Friday, 7 January, Wiygul, McNeece, and the school-board

attorney, Floyd, questioned Bell about the rap recording, including the veracity

of the allegations, the extent of the alleged misconduct, and the identity of the

students involved. Bell was then sent home for the remainder of the day.

Because of inclement weather, the school was closed through Thursday,

13 January. During Bell’s resulting time away from school, and despite his

having spoken with school officials about his rap recording, including the

accusations against the two coaches, Bell created a finalized version of the

recording (adding commentary and a picture slideshow), and uploaded it to

YouTube for public viewing.

Bell returned to school when it reopened on Friday, 14 January; he was

removed from class midday by the assistant principal and told he was

suspended, pending a disciplinary-committee hearing. (He was permitted to

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remain in the school commons until the school bus he rode arrived at the end

of the day.) By letter that day to Bell’s mother, the superintendent informed

her: Bell’s suspension would continue until further notification; and a hearing

would be held to consider disciplinary action for Bell’s “alleged threatening

intimidation and/or harassment of one or more school teachers”. The listed,

possible basis for such action was consistent with the school district’s

administrative disciplinary policy, which lists “[h]arassment, intimidation, or

threatening other students and/or teachers” as a severe disruption.

The disciplinary-committee hearing, originally scheduled for

Wednesday, 19 January, was delayed at Bell’s mother’s request; it was held on

Wednesday, 26 January. Although there is no transcript of the hearing, it was

recorded; that recording is in the summary-judgment record. The hearing

was facilitated by the school-board attorney, Floyd; three disciplinary-

committee members were present, as well as the school principal and Bell, his

mother, and their attorney.

The hearing began with the principal’s providing a summary of events,

after which the YouTube version of the rap recording was played. Among the

disciplinary-committee members’ questions, one member asked Bell whether

he had reported the alleged misconduct to school officials. Bell explained he

had not done so because he believed they would ignore his complaints. Instead,

he made the rap recording because he knew people were “gonna listen to it,

somebody’s gonna listen to it”, acknowledging several times during the hearing

that he posted the recording to Facebook because he knew it would be viewed

and heard by students. Moreover, he explained that at least 2,000 people had

contacted him about the rap recording in response to the Facebook and

YouTube postings.

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One of the committee members asked Bell why he had posted a new

version of the rap recording on YouTube, after school officials had discussed

with him his posting it on Facebook. Bell gave a few (and somewhat

conflicting) explanations: the Facebook version was a raw copy, so he wanted

a finalized version on YouTube; the Facebook version was for his friends and

“people locally” to hear, whereas the YouTube version was for music labels to

hear; and he posted the YouTube version with a slideshow of pictures to help

better explain the subject matter of the recording (his Facebook version only

included a brief explanation of the backstory in the caption to the rap

recording).

Although Bell’s attorney, at one point, attempted to discuss the

misconduct of the coaches alleged in the rap recording, the school-board

attorney redirected the proceeding to its purpose: to resolve whether Bell

threatened, harassed, and intimidated the teachers; and, to decide whether his

suspension should be upheld. In numerous instances, the school-board

attorney emphasized this purpose, noting Bell’s “comments made [in the

recording that] ‘you’ve f—ed with the wrong one / going to get a pistol down

your mouth / POW’[,] those are threats to a teacher”.

Bell contested the school-board attorney’s interpretation, responding:

“Well that ain’t really what I said”; and then provided what he described as the

written “original copy” of what had been recorded. (It is unclear from the

disciplinary-committee-hearing recording, or other parts of the summary-

judgment record, which copy Bell provided.) Bell explained he did not mean

he was going to shoot anyone, but that he was only “foreshadowing something

that might happen”. (Emphasis added.) But, he agreed that individuals

“outside the school setting” had made “certain statements” to his mother that

“‘put a pistol down your mouth’[,] that is a direct threat”.

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Near the end of the disciplinary-committee hearing, Bell explained

again: he put the recording on Facebook and YouTube knowing it was open to

public viewing; part of his motivation was to “increase awareness of the

situation”; and, although he did not think the coaches would hear the recording

and did not intend it to be a threat, he knew students would listen to it, later

stating “students all have Facebook”.

On 27 January, the day after the hearing, the school-board attorney

informed Bell’s mother by letter that: the disciplinary committee had

determined “the issue of whether or not lyrics published by Taylor Bell

constituted threats to school district teachers was vague”, but that the

publication of the recording constituted harassment and intimidation of two

teachers, in violation of school-district policy and state law; as a result, the

disciplinary committee recommended to the school board that Bell’s seven-day

suspension be upheld and that he be placed in the county’s alternative school

for the remainder of the nine-week grading period (approximately six weeks);

Bell would not be “allowed to attend any school functions and [would] be

subject to all rules imposed by the Alternative School”; and “[he would] be given

time to make up any work missed while suspended or otherwise receive a 0,

pursuant to Board policy”.

After being informed of the disciplinary-committee’s recommendation,

Bell’s attorney informed the school-board attorney, by 31 January telephone

call, that: Bell wished to appeal to the school board the disciplinary-

committee’s recommendation; and, although Bell and his mother were

expected to appear at the board meeting on 7 February, they would be without

counsel because he was unable to attend due to a scheduling conflict.

On 7 February, the school board, after being presented with a recitation

of the recording, unanimously found: Bell “threatened, harassed and

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intimidated school employees”. (The only document in the record from the

school-board meeting is the minutes, which state: “Chairman Tony Wallace

entertained a motion by Clara Brown to accept the discipline recommendation

of the Discipline Committee regarding student with MSIS #000252815

(I.A.H.S.) and finding that this student threatened, harassed and intimidated

school employees. Wes Pitts seconded the motion. Motion Carried

Unanimously.”) In other words, unlike the earlier-described disciplinary

committee findings, which do not characterize the rap recording as threatening

(instead, finding that point “vague”), the school board found Bell had not only

harassed and intimidated the teachers, but had also threatened them.

By 11 February letter to Bell’s mother, the school-board attorney

explained the board’s findings: “Bell did threaten, harass and intimidate

school employees in violation of School Board policy and Mississippi State

Law”. (Again, as stated in the written school-district policy, “[h]arassment,

intimidation, or threatening other students and/or teachers” constitutes a

severe disruption.)

Approximately two weeks later, on 24 February, Bell and his mother

filed this action, claiming, inter alia, the school board, superintendent, and

principal (again, the school board) violated his First Amendment right to free

speech. On 2 March, Bell requested a preliminary injunction, seeking his

immediate reinstatement to his high school, including the reinstatement of “all

privileges to which he was and may be entitled as if no disciplinary action had

been imposed”, and all references to the incident being expunged from his

school records.

At the 10 March hearing for the requested injunction, Bell presented four

affidavits from students at his school concerning alleged misconduct by the

coaches. (The affidavits, however, were not considered by the court.) In

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addition, Bell, his mother, school-board attorney Floyd, and Franklin (offered

as an expert in rap music) were called as witnesses by Bell; superintendent

McNeece and Coaches R. and W., by the school district.

Bell testified about his making and disseminating the recording; the

meaning behind certain statements in it; and the resulting events leading up

to, and after, school officials disciplined him. Bell’s mother testified about her

recollection of the events leading up to the disciplinary-committee and school-

board hearings. She testified the school principal never stated Bell was

dangerous or threatening, and that Bell was told to stay in the school before

suspending him.

Floyd testified about her recollection of the events before, during, and

after the disciplinary-committee and school-board hearings. During her

testimony, the court noted Bell’s contention that the rap recording addressed

a matter of public concern. Floyd discussed the school-district policy Bell

violated: he threatened, harassed, and intimidated school employees;

similarly, she testified that, at their respective hearings, the disciplinary

committee and the school board discussed the possibility of disruption.

Over the school-district’s objection, Franklin was permitted to testify as

an expert. Characterizing the statements in Bell’s recording as nothing more

than “colorful language” used to entice listeners and reflective of the norm

among young rap artists, Franklin testified that it gave him no cause for

concern. On cross-examination, however, he testified: if an individual’s name

is used in a rap recording and precedes the words “[p]ut a pistol in your mouth

and cap him”, “it would definitely be cause for a conversation with the young

man, absolutely”.

The superintendent testified: she had attended the school-board

meeting; there was a foreseeable danger of substantial disruption at the school

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as a result of the rap recording; and, a written version of Bell’s rap recording

was presented to the school board, before it adopted the disciplinary-

committee’s recommendation for suspension and temporary placement in the

alternative school.

Both coaches identified in the rap recording testified that it adversely

affected their work at the school. Coach R. testified: subsequent to the

publication of the recording, students began spending more time in the gym,

despite teachers’ telling them to remain in classrooms; and the recording

affected him in the way he conducted himself around students, noting he would

no longer work with female members of the track team, instead instructing

males on the team on how to coach the females and then having the males do

so. Coach W. testified he: interpreted the statements in the rap recording

literally, after hearing it on a student’s smartphone at school; was “scared”,

because “you never know in today’s society . . . what somebody means, [or] how

they mean it”; and would not allow the members of the school basketball team

he coached to leave after games until he was in his vehicle.

After finding Bell’s last day attending the alternative school would be

the next day, 11 March, the district court ruled whether to grant injunctive

relief was moot. Accordingly, the requested injunction was denied.

It does not appear that any discovery took place after the preliminary-

injunction hearing. On 9 May, following a case-management conference, the

magistrate judge entered an order stating: “it appears that there are no factual

issues and that this case should be resolved by motions for summary

judgment”; and the parties had 90 days to file those motions.

Therefore, approximately three months later, the school board filed its

summary-judgment motion on 1 August; Bell and his mother, on 5 August. On

15 March 2012, the district court denied the Bells’ motion and granted the

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school board’s. In doing so, it concluded the rap recording constituted

“harassment and intimidation of teachers and possible threats against

teachers and threatened, harassed, and intimidated school employees”. Bell,

859 F. Supp. 2d at 840 (internal quotation marks omitted). The court also

concluded the rap recording “in fact caused a material and/or substantial

disruption at school and . . . it was reasonably foreseeable to school officials the

song would cause such a disruption”. Id. Moreover, the court concluded, inter

alia: (1) the superintendent and principal were entitled to qualified immunity

in their individual capacities; and (2) Bell’s mother could not show a violation

of her Fourteenth Amendment rights (she claimed the school’s disciplining Bell

violated her right to make decisions regarding the custody and care of her son).

Id. at 841–42.

On appeal, only the summary judgment against Bell’s First Amendment

claim was challenged. A divided panel in December 2014 held, inter alia: the

school board violated Bell’s First Amendment right by disciplining him based

on the language in the rap recording. Bell v. Itawamba Cnty. Sch. Bd., 774

F.3d 280, 304–05 (5th Cir. 2014), reh’g en banc granted & opinion vacated, 782

F.3d 712 (5th Cir. 2015). En-banc review was granted in February 2015.

II.

Because the summary judgment against Bell’s mother’s Fourteenth

Amendment claim and for the school officials’ qualified-immunity claim was

not contested on appeal, the only issue before our en-banc court is the summary

judgment against Bell’s First Amendment claim. (The misconduct alleged by

Bell against the two teachers is, of course, not at issue.)

A summary judgment is reviewed de novo, applying the same standard

as did the district court. E.g., Feist v. La., Dep’t of Justice, Office of the Att’y

Gen., 730 F.3d 450, 452 (5th Cir. 2013). Summary judgment is proper when

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“there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law”. Fed. R. Civ. P. 56(a). “A genuine dispute of

fact exists when evidence is sufficient for a reasonable jury to return a verdict

for the non-moving party, and a fact is material if it might affect the outcome

of the suit.” Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (citations

and quotation marks omitted).

In determining whether to grant summary judgment, the court, in its de

novo review, views the evidence in the light most favorable to the nonmovant.

E.g., Dameware Dev., L.L.C. v. Am. Gen. Life Ins. Co., 688 F.3d 203, 206–07

(5th Cir. 2012). Consistent with that, on cross-motions for summary judgment,

“we review [de novo] each party’s motion independently, viewing the evidence

and inferences in the light most favorable to the nonmoving party”. Cooley v.

Hous. Auth. of Slidell, 747 F.3d 295, 298 (5th Cir. 2014) (internal quotation

marks omitted) (quoting Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493,

498 (5th Cir. 2001)).

The summary-judgment record at hand includes, inter alia: (1) the

affidavits of four students regarding the coaches’ alleged misconduct; (2)

screenshots of Bell’s Facebook page; (3) a transcription of the rap recording

submitted by the school board; (4) a transcription of the recording submitted

by Bell (stipulated version); (5) the letter from the superintendent to Bell’s

mother, informing the Bells of a hearing before the disciplinary committee; (6)

the digital recording of the rap recording; (7) the first screenshot of Bell’s

Facebook “wall”; (8) the second screenshot of Bell’s Facebook “wall”; (9) the

recording of the disciplinary-committee hearing; (10) the minutes of that

hearing, containing the recommended disciplinary action; (11) the school-board

attorney’s letter to Bell’s mother, informing her of the disciplinary committee’s

findings and recommended discipline; (12) the school-board-hearing minutes;

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(13) the school-district’s discipline policy; (14) the school-board attorney’s letter

to Bell’s mother informing her of the school-board’s determination; and (15) the

transcript of the preliminary-injunction hearing.

A.

Students qua students do not forfeit their First Amendment rights to

freedom of speech and expression. Tinker, 393 U.S. at 506, 511 (“School

officials do not possess absolute authority over their students . . . . In the

absence of a specific showing of constitutionally valid reasons to regulate their

speech, students are entitled to freedom of expression of their views.”). On the

other hand, the First Amendment does not provide students absolute rights to

such freedoms, and those rights must be tempered in the light of a school

official’s duty to, inter alia, “teach[] students the boundaries of socially

appropriate behavior”, Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681

(1986), and “protect those entrusted to their care”, Morse v. Frederick, 551 U.S.

393, 408 (2007). As Justice Oliver Wendell Holmes, Jr., wrote nearly a century

ago: “[T]he character of every act depends upon the circumstances in which it

is done. The most stringent protection of free speech would not protect a man

in falsely shouting fire in a theatre and causing a panic.” Schenck v. United

States, 249 U.S. 47, 52 (1919) (citation omitted). Therefore, because “the

constitutional rights of students in public school are not automatically

coextensive with the rights of adults in other settings”, Fraser, 478 U.S. at 682,

certain speech, which would be protected in other settings, might not be

afforded First Amendment protection in the school setting.

Balancing these competing interests, Tinker provided in 1969 the

standard for evaluating whether the First Amendment protects a student’s

speech. There, the Court considered the suspension of students for wearing

black armbands in protest against the Vietnam War. Tinker, 393 U.S. at 505–

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14. In holding the students’ speech protected under the First Amendment, the

Court, focusing primarily on the effect of that speech on the school community,

held: A student “may express his opinions . . . if he does so without materially

and substantially interfer[ing] with the requirements of appropriate discipline

in the operation of the school and without colliding with the rights of others”.

Id. at 513 (alteration in original) (emphasis added) (internal quotation marks

omitted). Put another way, “conduct by the student, in class or out of it, which

for any reason . . . materially disrupts classwork or involves substantial

disorder or invasion of the rights of others is, of course, not immunized . . . ”.

Id. (emphasis added). Approximately three years after Tinker, our court held

this standard can be satisfied either by showing a disruption has occurred, or

by showing “demonstrable factors that would give rise to any reasonable

forecast by the school administration of ‘substantial and material’ disruption”.

Shanley v. Ne. Indep. Sch. Dist., Bexar Cnty., Tex., 462 F.2d 960, 974 (5th Cir.

1972) (emphasis added) (holding school’s suspension of students for their off-

campus distribution of “underground” newspaper violated Tinker).

Since Tinker, the Court has revisited student speech on several

occasions, each time carving out narrow exceptions to the general Tinker

standard based on certain characteristics, or content, of the speech. See, e.g.,

Morse, 551 U.S. at 425 (Alito, J, concurring) (grave and unique threats to the

physical safety of students, in particular, speech advocating illegal drug use);

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (school-sponsored

speech); Fraser, 478 U.S. at 685 (lewd, vulgar, or indecent speech); see also

Morgan v. Swanson, 659 F.3d 359, 374 (5th Cir. 2011) (en banc) (describing the

Court’s holdings as “expand[ing] the kinds of speech schools can regulate . . . .

to several broad categories of student speech” (internal quotation marks

omitted)). In Fraser, the Court held the school board acted within its authority

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when it disciplined a student for an “offensively lewd and indecent” speech

delivered at a student assembly. 478 U.S. at 677–78, 685. In Hazelwood, the

Court upheld a school’s right to “exercis[e] editorial control over the style and

content of student speech” in a school-sponsored newspaper when the student

engages in “expressive activities that students, parents, and members of the

public might reasonably perceive to bear the imprimatur of the school” and the

school officials’ “actions are reasonably related to legitimate pedagogical

concerns”. 484 U.S. at 262, 271, 273.

And, most recently in Morse, the Court considered whether a school

infringed a student’s First Amendment right of free speech when it disciplined

him for holding up a banner that stated “BONG HiTS 4 JESUS” at a school-

sponsored event. 551 U.S. at 397–98. The Court, through Justice Alito’s

controlling concurrence (joined by Justice Kennedy), held a school may

discipline a student for speech which poses a “grave and . . . unique threat to

the physical safety of students”, such as “advocating illegal drug use”. Id. at

425. (Justice Alito limited his “join[ing] the opinion of the Court on the

understanding that the opinion does not hold that the special characteristics

of the public schools necessarily justify any other speech restrictions”. Id. at

423.)

For these exceptions, schools are not required to prove the occurrence of

an actual disruption or one that reasonably could have been forecast.

Similarly, in Ponce v. Socorro Independent School District, our court extended

the Morse exception to certain threats of school violence. 508 F.3d 765, 771–

72 (5th Cir. 2007). In response to a diary brought to school containing

“terroristic threat[s]” mirroring recent mass school shootings, the school

suspended the student. Id. at 767. On appeal, our court upheld the suspension

as constitutional, extending Morse’s exception to speech “bearing the stamp of

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. . . mass, systematic school-shootings” based on the “[l]ack of forewarning and

the frequent setting within schools [which] give mass shootings the unique

indicia that the concurring opinion [in Morse] found compelling with respect to

drug use”. Id. at 771.

In challenging the summary judgment, Bell claims the school board

violated his First Amendment free-speech rights by temporarily suspending

him and placing him in an alternative school for the six weeks remaining in

the grading period. In support, he contends: Tinker does not apply to off-

campus speech, such as his rap recording; and, even if it does, Tinker’s

“substantial disruption” test is not satisfied. For the reasons that follow, we

hold: Tinker applies to the off-campus speech at issue; there is no genuine

dispute of material fact precluding ruling, as a matter of law, that a school

official reasonably could find Bell’s rap recording threatened, harassed, and

intimidated the two teachers; and a substantial disruption reasonably could

have been forecast, as a matter of law.

1.

As our court explained in Morgan v. Swanson, student-speech claims are

evaluated “in light of the special characteristics of the school environment,

beginning by categorizing the student speech at issue”. 659 F.3d at 375

(footnotes and internal quotation marks omitted). We must thus decide

whether Bell’s speech falls under Tinker, or one of the Court’s above-described

exceptions. See, e.g., Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d

Cir. 2001) (employing a similar approach, noting “[s]peech falling outside of

. . . categories [such as those in Fraser and Hazelwood] is subject to Tinker’s

general rule”).

The parties do not assert, and the record does not show, that the school

board disciplined Bell based on the lewdness of his speech or its potential

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perceived sponsorship by the school; therefore, Fraser and Hazelwood are not

directly on point. Bell’s speech likewise does not advocate illegal drug use or

portend a Columbine-like mass, systematic school-shooting. And, as Justice

Alito noted, when the type of violence threatened does not implicate “the

special features of the school environment”, Tinker’s “substantial disruption”

standard is the appropriate vehicle for analyzing such claims. Morse, 551 U.S.

at 425 (citing Tinker, 393 U.S. at 508–09) (“[I]n most cases, Tinker’s

‘substantial disruption’ standard permits school officials to step in before

actual violence erupts”.). Although threats against, and harassment and

intimidation of, teachers certainly pose a “grave . . . threat to the physical

safety” of members of the school community, id., violence forecast by a student

against a teacher does not reach the level of the above-described exceptions

necessitating divergence from Tinker’s general rule. We therefore analyze

Bell’s speech under Tinker. See Ponce, 508 F.3d at 771–72 & n.2 (“[B]ecause

[threats of violence against individual teachers] are relatively discrete in scope

and directed at adults, [they] do not amount to the heightened level of harm

that was the focus of both the majority opinion and Justice Alito’s concurring

opinion in Morse”.); see also Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch.

Dist., 494 F.3d 34, 38 (2d Cir. 2007) (analyzing threats of violence to individual

teachers under Tinker); Boim v. Fulton Cnty. Sch. Dist., 494 F.3d 978, 982–83

(11th Cir. 2007) (same).

2.

In claiming Tinker does not apply to off-campus speech, Bell asserts:

Tinker limits its holding to speech inside the “schoolhouse gate”; and each of

the Court’s subsequent decisions reinforces this understanding.

“Experience shows that schools can be places of special danger.” Morse,

551 U.S. at 424 (Alito, J., concurring). Over 45 years ago, when Tinker was

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decided, the Internet, cellphones, smartphones, and digital social media did

not exist. The advent of these technologies and their sweeping adoption by

students present new and evolving challenges for school administrators,

confounding previously delineated boundaries of permissible regulations. See,

e.g., Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1064 (9th Cir. 2013)

(“With the advent of the Internet and in the wake of school shootings at

Columbine, Santee, Newtown and many others, school administrators face the

daunting task of evaluating potential threats of violence and keeping their

students safe without impinging on their constitutional rights.”). Students

now have the ability to disseminate instantaneously and communicate widely

from any location via the Internet. These communications, which may

reference events occurring, or to occur, at school, or be about members of the

school community, can likewise be accessed anywhere, by anyone, at any time.

Although, under other circumstances, such communications might be

protected speech under the First Amendment, off-campus threats, harassment,

and intimidation directed at teachers create a tension between a student’s free-

speech rights and a school official’s duty to maintain discipline and protect the

school community. These competing concerns, and differing standards applied

to off-campus speech across circuits, as discussed infra, have drawn into

question the scope of school officials’ authority. See Morse, 551 U.S. at 418

(Thomas, J., concurring) (lamenting the Court’s failure to “offer an explanation

of when [Tinker] operates and when it does not”, and noting: “I am afraid that

our jurisprudence now says that students have a right to speak in schools

except when they do not”).

Greatly affecting this landscape is the recent rise in incidents of violence

against school communities. See LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987

(9th Cir. 2001) (“[W]e live in a time when school violence is an unfortunate

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reality that educators must confront on an all too frequent basis”.). School

administrators must be vigilant and take seriously any statements by students

resembling threats of violence, Ponce, 508 F.3d at 771, as well as harassment

and intimidation posted online and made away from campus. This now-

tragically common violence increases the importance of clarifying the school’s

authority to react to potential threats before violence erupts. See Morse, 551

U.S. at 408 (pressing that dangerous speech, such as speech advocating drug

use, is substantially different from the political speech at issue in Tinker,

because it presents a “far more serious and palpable” danger than an

“undifferentiated fear or apprehension of disturbance” or “a mere desire to

avoid the discomfort and unpleasantness that always accompany an unpopular

viewpoint” (citation and internal quotation marks omitted)); see also Ponce, 508

F.3d at 772 (“School administrators must be permitted to react quickly and

decisively to address a threat of physical violence . . . without worrying that

they will have to face years of litigation second-guessing their judgment as to

whether the threat posed a real risk of substantial disturbance.”).

In the light of these competing interests and increasing concerns

regarding school violence, it is necessary to establish the extent to which off-

campus student speech may be restricted without offending the First

Amendment. Our holding concerns the paramount need for school officials to

be able to react quickly and efficiently to protect students and faculty from

threats, intimidation, and harassment intentionally directed at the school

community. See, e.g., Morse, 551 U.S. at 425 (Alito, J., concurring) (“[D]ue to

the special features of the school environment, school officials must have

greater authority to intervene before speech leads to violence.”); Lowery v.

Euverard, 497 F.3d 584, 596 (6th Cir. 2007) (“School officials have an

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affirmative duty to not only ameliorate the harmful effects of disruptions, but

to prevent them from happening in the first place.”).

a.

Despite Bell’s recognizing the wealth of precedent across numerous

circuits contrary to his position, he asserts: Tinker does not apply to speech

which originated, and was disseminated, off-campus, without the use of school

resources. Bell’s position is untenable; it fails to account for evolving

technological developments, and conflicts not only with our circuit’s precedent,

but with that of every other circuit to have decided this issue.

Since Tinker was decided in 1969, courts have been required to define its

scope. As discussed below, of the six circuits to have addressed whether Tinker

applies to off-campus speech, five, including our own, have held it does. (For

the other of the six circuits (the third circuit), there is an intra-circuit split.

See Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 219–20 (3d Cir. 2011) (en

banc) (Jordan, J., concurring) (discussing that Tinker’s applicability to off-

campus speech remains unresolved in the third circuit); see also J.S. ex rel.

Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 931 & n.8 (3d Cir. 2011) (en

banc) (divided court assuming, without deciding, that the Tinker substantial-

disruption test applies to online speech harassing a school administrator).)

The remainder of the circuits (first, sixth, seventh, tenth, eleventh, D.C.) do

not appear to have addressed this issue.

Although the Supreme Court has not expressly ruled on this issue, our

court, 43 years ago, applied Tinker to analyze whether a school board’s actions

were constitutional in disciplining students based on their off-campus speech.

E.g., Shanley, 462 F.2d at 970 (“When the Burnside/Tinker standards are

applied to this case . . . ”.); see also Sullivan v. Hous. Indep. Sch. Dist., 475 F.2d

1071, 1072 (5th Cir. 1973) (“This case arises from the unauthorized

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distribution of an underground newspaper near a high school campus, and

presents the now-familiar clash between claims of First Amendment protection

on the one hand and the interests of school boards in maintaining an

atmosphere in the public schools conducive to learning, on the other.”

(emphasis added)); Wisniewski, 494 F.3d at 39 (interpreting Sullivan as

applying Tinker to off-campus speech); Porter v. Ascension Parish Sch. Bd., 393

F.3d 608, 615 n.22, 619 n.40 (5th Cir. 2004) (same).

In Shanley, students distributed newspapers containing articles they

authored “during out-of-school hours, and without using any materials or

facilities owned or operated by the school system”, “near but outside the school

premises on the sidewalk of an adjoining street, separated from the school by

a parking lot”. 462 F.2d at 964. In concluding the students’ speech was

protected, our court ruled: “[T]he activity punished here does not even

approach the ‘material and substantial’ disruption . . . either in fact or in

reasonable forecast [and] [a]s a factual matter . . . there were no disturbances

of any sort, on or off campus, related to the distribution of the [newspaper]”.

Id. at 970.

Further, as noted supra, four other circuits have held that, under certain

circumstances, Tinker applies to speech which originated, and was

disseminated, off-campus. See, e.g., Wynar, 728 F.3d at 1069; D.J.M. ex rel.

D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 766–67 (8th Cir. 2011);

Kowalski v. Berkeley Cnty. Schs., 652 F.3d 565, 573–74 (4th Cir. 2011);

Doninger v. Niehoff, 527 F.3d 41, 48–50 (2d Cir. 2008). Therefore, based on

our court’s precedent and guided by that of our sister circuits, Tinker applies

to off-campus speech in certain situations.

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b.

Therefore, the next question is under what circumstances may off-

campus speech be restricted. Our court’s precedent is less developed in this

regard. For the reasons that follow, and in the light of the summary-judgment

record, we need not adopt a specific rule: rather, Bell’s admittedly

intentionally directing at the school community his rap recording containing

threats to, and harassment and intimidation of, two teachers permits Tinker’s

application in this instance.

i.

In 1972 in Shanley, our court expressly declined to adopt a rule holding

a school’s attempt to regulate off-campus speech under Tinker was per se

unconstitutional. 462 F.2d at 974. Our court explained: “[E]ach situation

involving expression and discipline will create its own problems of

reasonableness, and for that reason we do not endeavor here to erect any

immovable rules, but only to sketch guidelines”. Id. Likewise, in 1973 in

Sullivan, our court considered Tinker, but did not address any parameters for

its application to off-campus speech. 475 F.2d at 1076–77.

Our court’s far more recent, 2004 opinion in Porter, however, provides

valuable insight in this regard. There, the school expelled a student after his

brother brought to school a sketchpad containing a two-year-old drawing of the

school’s being attacked by armed personnel. 393 F.3d at 611. The depiction,

albeit violent in nature, “was completed [at] home, stored for two years, and

never intended by [the creator of the drawing] to be brought to campus”. Id. at

615 (emphasis added). After concluding Tinker applied to the school’s

regulations, our court held the speech was protected because the student never

intended for the drawing to reach the school, describing its introduction to the

school community as “accidental and unintentional”. Id. at 618, 620 (“Because

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[the student’s] drawing was composed off-campus, displayed only to members

of his own household, stored off-campus, and not purposefully taken by him to

[school] or publicized in a way certain to result in its appearance at [school],

we have found that the drawing is protected by the First Amendment”.). Of

importance for the issue at hand, and after describing precedent from our and

other circuits’ applying Tinker to off-campus speech, our court stated its

holding was “not in conflict with this body of case law” regarding the First

Amendment and off-campus student speech because the drawing’s being

“composed off-campus and remain[ing] off-campus for two years until it was

unintentionally taken to school by his younger brother takes the present case

outside the scope of these precedents”. Id. at 615 n.22 (emphasis added).

Porter instructs that a speaker’s intent matters when determining

whether the off-campus speech being addressed is subject to Tinker. A

speaker’s intention that his speech reach the school community, buttressed by

his actions in bringing about that consequence, supports applying Tinker’s

school-speech standard to that speech.

In addition, those courts to have considered the circumstances under

which Tinker applies to off-campus speech have advocated varied approaches.

E.g., Wynar, 728 F.3d at 1069 (holding that, regardless of the location of the

speech, “when faced with an identifiable threat of school violence [(threats

communicated online via MySpace messages)], schools may take disciplinary

action in response to off-campus speech that meets the requirements of

Tinker”); Snyder, 650 F.3d at 940 (Smith, J., concurring) (noting that any

standard adopted “cannot turn solely on where the speaker was sitting when

the speech was originally uttered [because s]uch a standard would fail to

accommodate the somewhat ‘everywhere at once’ nature of the [I]nternet”, and

advocating allowing schools to discipline off-campus speech “[r]egardless of its

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place of origin” so long as that speech was “intentionally directed towards a

school”); Kowalski, 652 F.3d at 573 (applying Tinker when a “sufficiently

strong” nexus exists between the student’s speech and the school’s pedagogical

interests “to justify the action taken by school officials in carrying out their role

as the trustees of the student body’s well-being”); D.J.M., 647 F.3d at 766

(applying Tinker because “it was reasonably foreseeable that [the student’s]

threats about shooting specific students in school would be brought to the

attention of school authorities and create a risk of substantial disruption

within the school environment”); Doninger, 527 F.3d at 48 (holding Tinker

applies to speech originating off-campus if it “would foreseeably create a risk

of substantial disruption within the school environment, at least when it was

similarly foreseeable that the off-campus expression might also reach campus”

(internal quotation marks omitted)).

The pervasive and omnipresent nature of the Internet has obfuscated

the on-campus/off-campus distinction advocated by Bell, “mak[ing] any effort

to trace First Amendment boundaries along the physical boundaries of a school

campus a recipe for serious problems in our public schools”. Layshock, 650

F.3d at 220–21 (Jordan, J., concurring). Accordingly, in the light of our court’s

precedent, we hold Tinker governs our analysis, as in this instance, when a

student intentionally directs at the school community speech reasonably

understood by school officials to threaten, harass, and intimidate a teacher,

even when such speech originated, and was disseminated, off-campus without

the use of school resources.

This holding is consistent with our circuit’s precedent in Shanley and

Sullivan, that of our sister circuits, and our reasoning in Porter. Further, in

holding Tinker applies to the off-campus speech in this instance, because such

determinations are heavily influenced by the facts in each matter, we decline:

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to adopt any rigid standard in this instance; or to adopt or reject approaches

advocated by other circuits.

ii.

Turning to the matter before us, there is no genuine dispute of material

fact that Bell intended his rap recording to reach the school community. He

admitted during the disciplinary-committee hearing that one of the purposes

for producing the recording was to “increase awareness of the [alleged

misconduct]” and that, by posting the rap recording on Facebook and YouTube,

he knew people were “gonna listen to it, somebody’s gonna listen to it”,

remarking that “students all have Facebook”. In short, Bell produced and

disseminated the rap recording knowing students, and hoping administrators,

would listen to it.

Further, regardless of whether Bell’s statements in the rap recording

qualify as “true threats”, as discussed in part II.B., they constitute threats,

harassment, and intimidation, as a layperson would understand the terms.

The Oxford English Dictionary defines: “threaten” as “to declare (usually

conditionally) one’s intention of inflicting injury upon” another, 17 Oxford

English Dictionary 998 (2d ed. 1989); “harass” as “[t]o wear out, tire out, or

exhaust with fatigue, care, [or] trouble”, 6 id. at 1100 (emphasis in original);

and “intimidate” as “[t]o render timid, inspire with fear; [or] to force to or deter

from some action by threats or violence”, 8 id. at 7–8. See also Black’s Law

Dictionary 1708 (10th ed. 2014) (defining “threat” as “[a] communicated intent

to inflict harm or loss on another or on another’s property”); id. at 831 (defining

“harassment” as “[w]ords, conduct, or action . . . that, being directed at a

specific person, annoys, alarms, or causes substantial emotional distress to

that person and serves no legitimate purpose”); Elonis v. United States, 135 S.

Ct. 2001, 2011–12 (2015) (explaining that a “threat” can have different

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definitions based on context (for example, the difference between its use in

criminal statutes and its being protected speech under the First Amendment)).

A reasonable understanding of Bell’s statements satisfies these

definitions; they: threatened violence against the two coaches, describing the

injury to be inflicted (putting the pistol down their mouths and pulling the

trigger, and “capping” them), described the specific weapon (a “rueger” [sic],

which, as discussed supra, is a type of firearm), and encouraged others to

engage in this action; and harassed and intimidated the coaches by forecasting

the aforementioned violence, warning them to “watch [their] back[s]” and that

they would “get no mercy” when such actions were taken. Accordingly, as

further discussed infra, there is no genuine dispute of material fact that Bell

threatened, harassed, and intimidated the coaches by intentionally directing

his rap recording at the school community, thereby subjecting his speech to

Tinker.

3.

Having held Tinker applies in this instance, the next question is whether

Bell’s recording either caused an actual disruption or reasonably could be

forecast to cause one. Taking the school board’s decision into account, and the

deference we must accord it, see, e.g., Wood v. Strickland, 420 U.S. 308, 326

(1975), overruled in part on other grounds, Harlow v. Fitzgerald, 457 U.S. 800

(1982); Shanley, 462 F.2d at 975; Callahan v. Price, 505 F.2d 83, 87 (5th Cir.

1974), this question becomes whether a genuine dispute of material fact exists

regarding the reasonableness of finding Bell’s rap recording threatening,

harassing, and intimidating; and, if no genuine dispute precludes that finding,

whether such language, as a matter of law, reasonably could have been forecast

to cause a substantial disruption.

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a.

As noted by our court in Shanley, “in deference to the judgment of the

school boards, we refer ad hoc resolution of . . . issues [such as this one] to the

neutral corner of ‘reasonableness’”. 462 F.2d at 971; see also id. at 975 (“[T]he

balancing of expression and discipline is an exercise in judgment for school

administrations and school boards, subject only to the constitutional

requirement of reasonableness under the circumstances”.). For the reasons

discussed supra, there is no genuine dispute of material fact that the school

board’s finding the rap recording threatened, harassed, and intimidated the

two coaches was objectively reasonable.

b.

Next, we consider whether the school board’s disciplinary action against

Bell, based on its finding he threatened, harassed, and intimidated two

coaches, satisfies Tinker. Arguably, a student’s threatening, harassing, and

intimidating a teacher inherently portends a substantial disruption, making

feasible a per se rule in that regard. We need not decide that question because,

in the light of this summary-judgment record, and for the reasons that follow,

Bell’s conduct reasonably could have been forecast to cause a substantial

disruption.

i.

As discussed supra, Tinker allows a school board to discipline a student

for speech that either causes a substantial disruption or reasonably is forecast

to cause one. 393 U.S. at 514. The Tinker test is satisfied when: an actual

disruption occurs; or the record contains facts “which might reasonably have

led school authorities to forecast substantial disruption of or material

interference with school activities”. Id.

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“Tinker requires a specific and significant fear of disruption, not just

some remote apprehension of disturbance.” Saxe, 240 F.3d at 211. “School

officials must be able to show that their actions were caused by something more

than a mere desire to avoid the discomfort and unpleasantness that always

accompany an unpopular viewpoint.” A.M. ex rel. McAllum v. Cash, 585 F.3d

214, 221 (5th Cir. 2009) (alterations and internal quotation marks omitted).

“Officials must base their decisions on fact, not intuition”, id. at 221–22

(internal quotation marks omitted); and those decisions are entitled to

deference, Shanley, 462 F.2d at 967 (“That courts should not interfere with the

day-to-day operations of schools is a platitudinous but eminently sound maxim

which this court has reaffirmed on many occasions.”). See also Wood, 420 U.S.

at 326 (“It is not the role of the federal courts to set aside decisions of school

administrators which the court may view as lacking a basis in wisdom or

compassion.”).

As our court has held: “While school officials must offer facts to support

their proscription of student speech, this is not a difficult burden, and their

decisions will govern if they are within the range where reasonable minds will

differ”. Cash, 585 F.3d at 222 (emphasis added) (internal citations and

quotation marks omitted). Accordingly, school authorities are not required

expressly to forecast a “substantial or material disruption”; rather, courts

determine the possibility of a reasonable forecast based on the facts in the

record. See, e.g., id. at 217, 222; see also Tinker, 393 U.S. at 514 (“[T]he record

does not demonstrate any facts which might reasonably have led school

authorities to forecast substantial disruption of or material interference with

school activities, and no disturbances or disorders on the school premises in

fact occurred”. (emphasis added)).

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Factors considered by other courts in determining, pursuant to Tinker,

the substantiality vel non of an actual disruption, and the objective

reasonableness vel non of a forecasted substantial disruption, include: the

nature and content of the speech, the objective and subjective seriousness of

the speech, and the severity of the possible consequences should the speaker

take action, e.g., Wynar, 728 F.3d at 1070–71; the relationship of the speech to

the school, the intent of the speaker to disseminate, or keep private, the speech,

and the nature, and severity, of the school’s response in disciplining the

student, e.g., Doninger, 527 F.3d at 50–52; whether the speaker expressly

identified an educator or student by name or reference, and past incidents

arising out of similar speech, e.g., Kowalski, 652 F.3d at 574; the manner in

which the speech reached the school community, e.g., Boim, 494 F.3d at 985;

the intent of the school in disciplining the student, Snyder, 650 F.3d at 926,

929 (majority opinion), 951 (Fisher, J., dissenting); and the occurrence of other

in-school disturbances, including administrative disturbances involving the

speaker, such as “[s]chool officials ha[ving] to spend considerable time dealing

with these concerns and ensuring that appropriate safety measures were in

place”, D.J.M., 647 F.3d at 766, brought about “because of the need to manage”

concerns over the speech, Doninger, 527 F.3d at 51.

ii.

Applying this precedent to the summary-judgment record at hand, and

for the reasons that follow, a substantial disruption reasonably could have been

forecast as a matter of law. Viewing the evidence in the requisite light most

favorable to Bell, including his assertions that he wanted only to raise

awareness of alleged misconduct by two teachers (Bell admitted at the

disciplinary-committee hearing that his recording was meant to “increase

awareness of the situation” and that he was “foreshadowing something that

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might happen” (emphasis added)), the manner in which he voiced his concern—

with threatening, intimidating, and harassing language—must be taken

seriously by school officials, and reasonably could be forecast by them to cause

a substantial disruption.

The speech pertained directly to events occurring at school, identified the

two teachers by name, and was understood by one to threaten his safety and

by neutral, third parties as threatening. (Bell agreed at the disciplinary-

committee hearing that “certain statements” were made to his mother “outside

the school setting” that “‘put a pistol down your mouth’[,] that is a direct

threat”.) The possible consequences were grave—serious injury to, including

the possible death of, two teachers. Along that line, Bell admitted he intended

the speech to be public and to reach members of the school community, which

is further evidenced by his posting the recording to Facebook and YouTube.

As noted, the school district’s Discipline – Administrative Policy lists

“[h]arassment, intimidation, or threatening other students and/or teachers” as

a severe disruption. Although we may not rely on ipse dixit in evaluating the

school board’s actions, Shanley, 462 F.2d at 970, the school-district’s policy

demonstrates an awareness of Tinker’s substantial-disruption standard, and

the policy’s violation can be used as evidence supporting the reasonable

forecast of a future substantial disruption. See, e.g., Morse, 551 U.S. at 408–

10 (relying on, inter alia, the student’s violation of established school policy in

holding the school board did not violate the student’s First Amendment right);

Fraser, 478 U.S. at 678, 686 (noting that the “[t]he school disciplinary rule

proscribing ‘obscene’ language and the prespeech admonitions of teachers gave

adequate warning to [the student] that his lewd speech could subject him to

sanctions”).

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Further, even after finding Bell threatened, intimidated, and harassed

two teachers, the school board’s response was measured—temporarily

suspending Bell and placing him in an alternative-education program for the

remainder of the nine-week grading term (about six weeks). The

reasonableness of, and amount of care given to, this decision is reinforced by

the school board’s finding, differently from the disciplinary committee’s, that

Bell’s statements also constituted threats.

And finally, numerous, recent examples of school violence exist in which

students have signaled potential violence through speech, writings, or actions,

and then carried out violence against school communities, after school

administrators and parents failed to properly identify warning signs. See, e.g.,

Report of the Virginia Tech Review Panel, Mass Shootings at Virginia Tech

April 16, 2007, 52 (August 2007), available at

https://governor.virginia.gov/media/3772/fullreport.pdf (section entitled

“Missing the Red Flags”); see also Ponce, 508 F.3d at 771 (“[T]he difficulty of

identifying warning signs in the various instances of school shootings across

the country is intrinsic to the harm itself”.); LaVine, 257 F.3d at 987 (“After

Columbine, Thurston, Santee and other school shootings, questions have been

asked how teachers or administrators could have missed telltale ‘warning

signs,’ why something was not done earlier and what should be done to prevent

such tragedies from happening again.”).

In determining objective reasonableness vel non for forecasting a

substantial disruption, the summary-judgment record and numerous related

factors must be considered against the backdrop of the mission of schools: to

educate. It goes without saying that a teacher, which includes a coach, is the

cornerstone of education. Without teaching, there can be little, if any, learning.

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Without learning, there can be little, if any, education. Without education,

there can be little, if any, civilization.

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.

B.

In considering Bell’s First Amendment claim, and our having affirmed

summary judgment for the school board under Tinker, it is unnecessary to

decide whether Bell’s speech also constitutes a “true threat” under Watts v.

United States, 394 U.S. 705 (1969) (holding hyperbolic threats on the

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President’s life are not “true threats”). See Elonis, 135 S. Ct. at 2012 (declining

to address the First Amendment question (whether the speech was a “true

threat” not protected by that amendment) after resolving the case on other

grounds).

III.

For the foregoing reasons, the judgment is AFFIRMED.

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E. GRADY JOLLY, specially concurring:

In determining the contours of constitutionally permissible school

discipline, older cases are relevant for block building, but only block building,

as we decide what speech schools may discipline under the First Amendment.

In Tinker, there was no threat to kill a teacher, no threat of violence, and no

lewd or slanderous comments regarding a teacher. Tinker also did not address

the intersection between on-campus speech and off-campus speech. When

Tinker refers to a disruption, it is saying that student ideas may be expressed

on campus unless they are so controversial that the expression creates a

disruption. Those principles are controlling where the facts fit, but Tinker’s

admonitions—or the admonitions in various precedents—are not equally

forceful in every case. The same can be said of Morse. It is perhaps more

applicable here than Tinker, because it speaks in terms of physical and moral

danger to students. Morse makes clear that such danger does not require proof

of disruptive effects that the speech may cause, as would be required in the

case of mere expression of non-lethal statements.

It is true that in a footnote in Ponce we indicated that individual threats

of violence are more appropriately analyzed in the light of Tinker as opposed

to threats of mass violence, which we analyzed under Morse. These are

evolving principles, however, and we now have before us a different case from

Tinker, Morse, Ponce, or Porter. Tinker may well be a relevant precedent here.

But that does not mean that all aspects of a political speech case must be

slavishly applied to a case of threats to kill teachers.

We should apply reasonable common sense in deciding these continually

arising school speech and discipline cases, as we would in any case dealing with

the evolving common law, which takes into account the technological and

societal environs of the times. When Tinker was written in 1969, the use of

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the Internet as a medium for student speech was not within the Court’s mind.

It is also true that this issue was not in the forefront of the Court’s mind when

Porter was written in 2004, or even when Morse and Ponce were written. Ever

since Morse, the use, the extent and the effect of the online speech seem to have

multiplied geometrically.

Judges should also view student speech in the further context of public

education today—at a time when many schools suffer from poor performance,

when disciplinary problems are at their highest, and when schools are, in many

ways, at their most ineffective point. Judges should take into account the effect

the courts have had on these problems in school discipline. Increasing judicial

oversight of schools has created unforeseen consequences, for teachers and for

schools as much as for students. Students feel constraints on conduct and

personal speech to be more and more permissive. Teachers will decide not to

discipline students, given the likelihood of protracted litigation and its

pressures on the time and person of those who work hard to keep up with the

increasing demands placed on them as teachers. Schools will not take on the

risk of huge litigation costs when they could use these resources on school

lunches, textbooks, or other necessary school resources to educate children, all

of which are sorely lacking in so many, many instances.

Judges can help to address these concerns by speaking clearly, succinctly

and unequivocally. I would decide this case in the simplest way, consonant

with our cases and the cases in other circuits, by saying as little as possible

and holding:

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

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threat is connected to the school environment; and which

actual threat is communicated to the school, or its students,

or its personnel.

With these comments, I join Judge Barksdale’s opinion.

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JENNIFER WALKER ELROD, Circuit Judge, joined by JONES, Circuit

Judge, concurring:

I fully concur in the careful, well-reasoned majority opinion, because

Bell’s rap was directed to the school and contained threats of physical violence.

See Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1069 (9th Cir. 2013)

(declining to consider threshold tests from other circuits and holding only that

schools may discipline off-campus student speech under the Tinker standard

“when faced with an identifiable threat of school violence”); see also Morse v.

Frederick, 551 U.S. 393, 424 (2007) (Alito, J., concurring) (remarking that “any

argument for altering the usual free speech rules in the public schools . . .

must . . . be based on some special characteristic of the school setting,” and

recognizing only one such special characteristic: “threat[s] to the physical

safety of students”); Ponce v. Socorro Ind. Sch. Dist., 508 F.3d 765, 770–72 (5th

Cir. 2007) (interpreting Morse to allow punishment of off-campus speech

threatening a mass shooting).

Most importantly, nothing in the majority opinion makes Tinker

applicable off campus to non-threatening political or religious speech, even

though some school administrators might consider such speech offensive,

harassing, or disruptive. See Morse, 551 U.S. at 403, 409 (majority opinion)

(noting that the student speech in Morse did not “convey[] any sort of political

or religious message” and recognizing that while “much political and religious

speech might be perceived as offensive to some,” such speech “is at the core of

what the First Amendment is designed to protect”) (internal quotation marks

omitted); id. at 422–23, 424 (Alito, J., concurring) (emphasizing the First

Amendment’s protection of speech that comments on political or social issues

and observing that “[i]t is . . . wrong to treat public school officials, for purposes

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relevant to the First Amendment, as if they were private, nongovernmental

actors standing in loco parentis”).

Indeed, as Judge D. Brooks Smith has cautioned, because Tinker allows

the suppression of student speech (even political speech) based on its

consequences rather than its content, broad off-campus application of Tinker

“would create a precedent with ominous implications. Doing so would empower

schools to regulate students’ expressive activity no matter where it takes place,

when it occurs, or what subject matter it involves—so long as it causes a

substantial disruption at school.” See J.S. ex rel. Snyder v. Blue Mountain Sch.

Dist., 650 F.3d 915, 939 (3d Cir. 2011) (en banc) (Smith, J., concurring) (five-

judge concurrence opining that Tinker does not apply off campus). I agree with

my learned colleague on the Third Circuit that the First Amendment does not,

for example, allow a public school to punish a student for “writ[ing] a blog entry

defending gay marriage” from his home computer, even if the blog entry causes

a substantial disruption at the school. Id. (Smith, J., concurring).

By my read, the majority opinion avoids such “ominous implications” and

does not subject a broad swath of off-campus student expression to Tinker.

Rather, it quite sensibly decides only the case before it, applying Tinker to

Bell’s rap, which was intentionally directed toward the school and contained

threats of physical violence. Because this cautious approach does not place

public school officials in loco parentis or confer upon them a broad power to

discipline non-threatening off-campus speech, I concur in full.

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GREGG COSTA, Circuit Judge, joined by OWEN and HIGGINSON, Circuit

Judges, concurring:

This case involves two serious problems that arise all too frequently in

today’s classrooms: violence and sexual harassment. Judge Dennis’s dissent

points out that the harassment of female students is a matter of vital public

concern that Bell’s song sought to expose. The problem for Bell is that his

song—with its graphic discussion of violence against the coaches—goes well

beyond blowing the whistle on the alleged harassment.

Judge Dennis’s dissent contends that these whistleblowing aspects of the

song nonetheless entitle the speech to “special protection” under the First

Amendment. Dissent at 1, 12. It treats this argument as a separate basis for

ruling in Bell’s favor. But fitting this case within Snyder v. Phelps, public

employee speech cases like Pickering, and the litany of other cited cases

assumes that Tinker is not implicated. Tinker, of course, involved speech on

not just a matter of public concern, but the public concern of its day—the war

in Vietnam. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504

(1969). Yet the Court still balanced the value of that speech against its impact

on the learning environment. See id. at 509. That disruption analysis may

well have come out differently had the Tinkers combined their armband

protest with talk of violence. Identifying some aspect of Bell’s song that

addresses a matter of public concern therefore is not enough to elevate it above

the Tinker framework unless Tinker does not apply to this type of off-campus

speech (in which case the speech would enjoy First Amendment protection from

school discipline so long as it constitutes any form of protected speech, not just

the “highest rung”).

Whichever First Amendment doctrine one tries to latch onto, the

inescapable question is thus whether Tinker’s balancing approach governs “off-

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campus” student speech that is directed at the school community. For the

reasons discussed in the majority opinion, along with the views expressed by

every other circuit that has taken a position on this issue, I agree that it does,

at least when the speech is threatening, harassing, and intimidating as it is

here.

Broader questions raised by off-campus speech will be left for another

day. That day is coming soon, however, and this court or the higher one will

need to provide clear guidance for students, teachers, and school

administrators that balances students’ First Amendment rights that Tinker

rightly recognized with the vital need to foster a school environment conducive

to learning. That task will not be easy in light of the pervasive use of social

media among students and the disruptive effect on learning that such speech

can have when it is directed at fellow students and educators. Indeed,

although Judge Dennis’s dissent extols the aspects of Bell’s song that sought

to combat sexual harassment, the blanket rule it advocates—one that would

deprive schools of any authority to discipline students for off-campus speech

published on social media no matter how much it disrupts the learning

environment—would allow sexual harassment and ferocious cyberbullying

that affect our classrooms to go unchecked. See Morrow v. Balaski, 719 F.3d

160, 164 (3d Cir. 2013) (describing multiple cyberbullying incidents in which

students were threatened by phone and on MySpace by another student);

S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 773 (8th Cir.

2012) (explaining that students’ posts on a blog they created “contained a

variety of offensive and racist comments as well as sexually explicit and

degrading comments about particular female classmates, whom they identified

by name”); Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565, 568 (4th Cir. 2011)

(detailing online bullying incident in which high school students created

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webpage called “Students Against Shay’s Herpes” in reference to another high

school student).

With these additional observations, I join the majority opinion.

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JAMES L. DENNIS, Circuit Judge, with whom GRAVES, Circuit Judge, joins

in full, and with whom PRADO, Circuit Judge, joins except as to Parts I and

II. B., dissenting:

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. As if to

enforce the adage that “children should be seen and not heard,” the majority

opinion holds that the Itawamba County School Board did not violate the First

Amendment when it suspended high school senior Taylor Bell for composing

and posting a rap song on the Internet using his home computer during non-

school hours, which criticized two male teachers for their repeated sexual

harassment of minor female students. In my view, the majority opinion

commits serious constitutional and summary-judgment procedural errors

because: (1) Bell is entitled to summary judgment because his off-campus rap

song was specially protected speech on a matter of public concern; (2) the

School Board was not authorized by Tinker v. Des Moines Independent

Community School District, 393 U.S. 503 (1969), to censor students’ off-campus

online speech; and (3) even assuming arguendo that Tinker granted the School

Board power to censor such speech, the School Board was not entitled to

summary judgment under Tinker, because the evidence, viewed in the light

favorable to the non-movant, Bell, does not support the conclusion that Bell’s

speech caused a substantial disruption of school activities or justified a

reasonable forecast of such a disruption by school officials. The majority

opinion thereby denigrates and undermines not only Bell’s First Amendment

right to engage in off-campus online criticism on matters of public concern but

also the rights of untold numbers of other public school students in our

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jurisdiction to scrutinize the world around them and likewise express their off-

campus online criticism on matters of public concern. In doing so, the 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.

As detailed herein, the majority opinion commits a number of

fundamental errors that necessitate highlighting lest readers be misinformed

by its version of the relevant facts and law. First and foremost, the majority

opinion erroneously fails to acknowledge that Bell’s rap song constitutes

speech on “a matter of public concern” and therefore “occupies the highest rung

of the hierarchy of First Amendment values.” See Snyder v. Phelps, 562 U.S.

443, 452 (2011) (internal quotation marks and citation omitted). Instead, by

narrowly focusing its analysis on a few, plainly rhetorical lyrics in Bell’s song,

the majority opinion wholly glosses over the urgent social issue that Bell’s song

lays bare and thus flouts Supreme Court precedent requiring us to evaluate

whether “the overall thrust and dominant theme of [Bell’s song] spoke to

broader public issues”—which it did. See id. at 454.

Second, in drastically expanding the scope of schools’ authority to

regulate students’ off-campus speech, the majority opinion disregards Supreme

Court precedent establishing that minors are entitled to “significant” First

Amendment protection, including the right to engage in speech about violence

or depicting violence, and that the government does not enjoy any “free-floating

power to restrict the ideas to which children may be exposed.” See Brown v.

Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2735–36 (2011). Similarly, the

majority opinion also altogether fails to consider Supreme Court precedents

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that substantially restrict the government’s ability to regulate Internet speech,

Reno v. American Civil Liberties Union, 521 U.S. 844, 868–70 (1997), and the

extent to which the majority opinion’s vague framework fails to provide

constitutionally adequate notice of when student speech crosses the line

between permissible and punishable off-campus expression, see id. at 871–72;

accord Brown, 131 S. Ct. at 2744–46 (Alito, J., concurring). Further, by

deriving its rule from a school policy that focuses on whether a layperson might

view Bell’s speech as “threatening,” “harassing,” or “intimidating,” the

majority opinion ignores First Amendment precedents demanding that the

government prove more than mere negligence before imposing penalties for so-

called “threatening” speech. See Virginia v. Black, 538 U.S. 343, 359 (2003);

N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 904, 928–29 (1982).

Third, by holding that the Tinker framework applies to off-campus

speech like Bell’s, the majority opinion simply ignores that Tinker’s holding

and its sui generis “substantial-disruption” framework are expressly grounded

in “the special characteristics of the school environment,” Tinker v. Des Moines

Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), and the need to defer to

school officials’ authority “to prescribe and control conduct in the schools,” id.

at 507 (emphasis added), whereas Bell’s rap song was recorded and released

entirely outside the school environment. The Court’s post-Tinker precedents

make clear this critical distinction. See, e.g., Morse v. Frederick, 551 U.S. 393,

422 (2007) (Alito, J., concurring) (noting that Tinker allows schools to regulate

“in-school student speech . . . in a way that would not be constitutional in other

settings”). In this regard, the majority opinion also fails to account for the vital

fact that the Tinker framework is far too indeterminate of a standard to

adequately protect the First Amendment right of students, like Bell, to engage

in expressive activities outside of school, as well as their parents’ constitutional

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right to direct their children’s upbringing and the First Amendment right of

adults and children alike to receive students’ speech. In other words, the

majority opinion allows schools to police their students’ Internet expression

anytime and anywhere—an unprecedented and unnecessary intrusion on

students’ rights.

Fourth and finally, the majority opinion also errs in its very application

of the Tinker framework. As detailed in the panel majority’s opinion, the

summary-judgment evidence simply does not support the conclusion, as

required by Tinker, that Bell’s song substantially disrupted school activities or

that school officials reasonably could have forecasted that it would do so. In

reaching the opposite conclusion, the majority opinion not only fails to view the

summary-judgment evidence in the light most favorable to the non-movant,

Bell, accord Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014), but also dilutes the

Tinker “substantial-disruption” framework into an analytic nullity.

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.

Such a precedent thereby clearly contravenes the basic principle that, “[i]n our

system, students may not be regarded as closed-circuit recipients of only that

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which the States chooses to communicate. They may not be confined to

expression of those sentiments that are officially approved.” Tinker, 393 U.S.

at 511. Today, however, the majority opinion exempts the children of Texas,

Louisiana, and Mississippi from this long-established constitutional

safeguard. Because the majority opinion’s undue deference to a public school

board’s assertion of authority to censor the speech of students while not within

its custody impinges the very core of our Constitution’s fundamental right to

free speech, I respectfully but emphatically dissent.

I.

The en banc majority opinion completely ignores Bell’s argument that

the School Board violated his First Amendment rights in punishing him for his

rap song, which he contends was protected speech on “a matter of public

concern.” Although Bell strenuously made his “speech on a matter of public

concern” argument at every opportunity, including at the en banc oral

argument, the en banc majority opinion fails to address this critical point.

Instead, the majority opinion transforms the Itawamba County School Board

disciplinary policy into an unprecedented rule of constitutional law that

effectively permits school officials across our Circuit to punish a student’s

protest of teacher misconduct regardless of when or where the speech occurs

and regardless of whether the student speaker is, at the time of the speech, an

adult or a minor fully within the custody and control of his or her parents. I

respectfully but strongly disagree with the majority opinion’s silent rejection

of Bell’s argument, not only because Bell’s argument is meritorious, but also

because the opinion’s sub silentio decision of the issue presented has led it into

several serious and unfortunate constitutional errors.

Speech on “matters of public concern” is “at the heart of the First

Amendment’s protection.” Snyder v. Phelps, 562 U.S. 443, 451–52 (2011)

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(internal quotation marks and citation omitted). “The First Amendment

reflects ‘a profound national commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open.’” Id. at 452 (quoting New

York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). “That is because ‘speech

concerning public affairs is more than self-expression; it is the essence of self-

government.’” Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964)).

“Accordingly, ‘speech on public issues occupies the highest rung of the

hierarchy of First Amendment values, and is entitled to special protection.’”

Id. (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)).

Although the Supreme Court has noted that “the boundaries of the public

concern test are not well defined,” San Diego v. Roe, 543 U.S. 77, 83 (2004) (per

curiam), it has “articulated some guiding principles, principles that accord

broad protection to speech to ensure that courts themselves do not become

inadvertent censors,” Snyder, 562 U.S. at 452. “Speech deals with matters of

public concern when it can be fairly considered as relating to any matter of

political, social, or other concern to the community, or when it is a subject of

legitimate news interest; that is, a subject of general interest and of value and

concern to the public.” Id. at 453 (internal quotation marks and citations

omitted). “The arguably ‘inappropriate or controversial character of a

statement is irrelevant to the question whether it deals with a matter of public

concern.’” Id. (quoting Rankin v. McPherson, 483 U.S. 378, 387 (1987)).

Determining whether speech involves a matter of public concern

“requires us to examine ‘the content, form, and context’ of th[e] speech, as

revealed by the record as a whole.” Id. (quoting Dun & Bradstreet, Inc. v.

Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985)). “As in other First

Amendment cases, the court is obligated ‘to make an independent examination

of the whole record in order to make sure that the judgment does not constitute

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a forbidden intrusion on the field of free expression.’” Id. (quoting Bose Corp.

v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984)). “In

considering content, form, and context, no factor is dispositive, and it is

necessary to evaluate all the circumstances of the speech, including what was

said, where it was said, and how it was said.” Id. at 454.

In Snyder, the Supreme Court applied this framework to hold that the

First Amendment barred an aggrieved father from recovering for, inter alia,

intentional infliction of emotional distress, against an anti-gay church

congregation whose picketing coincided with the funeral of his son, who was a

marine, notwithstanding the alleged outrageousness and hurtfulness of the

picketers’ speech to Snyder. 1 562 U.S. at 460. Specifically, in that case, Fred

Phelps, the founder of the Westboro Baptist Church, traveled to Maryland,

along with six parishioners, in order to hold a protest on public property 1,000

feet from the funeral of Marine Lance Corporal Matthew Snyder, who was

killed in Iraq in the line of duty. Id. at 448. The picketing was conducted under

police supervision and out of the sight of those at the church. Id. at 457. The

protest was not unruly; there was no shouting, profanity, or violence. Id. The

record confirms that any distress occasioned by Westboro’s picketing turned on

the content and viewpoint of the message conveyed, rather than any

interference with the funeral itself. Id. The picketers peacefully displayed

signs that read “God Hates the USA/Thank God for 9/11,” “America is

Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for

Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re

Going to Hell,” and “God Hates You.” Id. at 448. The Westboro picketers

1“The funeral procession passed within 200 to 300 feet of the picket site. Although

Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he

did not see what was written on the signs until later that night, while watching a news

broadcast covering the event.” Id. at 449.

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displayed these signs for about 30 minutes before the funeral began. Id. at

449.

Snyder’s father thereafter filed a diversity action against Phelps and

other picketers alleging, inter alia, state tort claims of intentional infliction of

emotional distress, intrusion upon seclusion, and civil conspiracy. Id. at 449–

50. After a jury awarded millions of dollars in damages, Phelps and his

congregants argued that they were entitled to judgment as a matter of law

because the First Amendment fully protected their speech. Id. at 450. The

district court reduced the punitive damages award, but left the verdict

otherwise intact. Id. The Fourth Circuit reversed, concluding that Westboro's

statements were entitled to First Amendment protection because those

statements “were on matters of public concern, were not provably false, and

were expressed solely through hyperbolic rhetoric.” Id. at 451.

The Supreme Court granted certiorari and affirmed. Id. at 461.

Evaluating the “content, form and context” of the congregants’ protest, the

Court concluded that Westboro’s speech addressed a matter of public concern

and was entitled to “special protection” under the First Amendment, thus

barring Snyder from recovering in tort on the basis of the “outrageousness” of

their speech. Id. at 458. According to the Court:

Such speech cannot be restricted simply because it is upsetting or

arouses contempt. “If there is a bedrock principle underlying the

First Amendment, it is that the government may not prohibit the

expression of an idea simply because society finds the idea itself

offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414

(1989). Indeed, “the point of all speech protection . . . is to shield

just those choices of content that in someone's eyes are misguided,

or even hurtful.” Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995).

Id. Further, the Court concluded:

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Westboro believes that America is morally flawed; many

Americans might feel the same about Westboro. Westboro’s

funeral picketing is certainly hurtful and its contribution to public

discourse may be negligible. But Westboro addressed matters of

public import on public property, in a peaceful manner, in full

compliance with the guidance of local officials. The speech was

indeed planned to coincide with Matthew Snyder's funeral, but did

not itself disrupt that funeral, and Westboro’s choice to conduct its

picketing at that time and place did not alter the nature of its

speech.

Speech is powerful. It can stir people to action, move them to tears

of both joy and sorrow, and—as it did here—inflict great pain. On

the facts before us, we cannot react to that pain by punishing the

speaker. As a Nation we have chosen a different course—to protect

even hurtful speech on public issues to ensure that we do not stifle

public debate. That choice requires that we shield Westboro from

tort liability for its picketing in this case.

Id. at 460-461.

Applying these principles to the instant case, the record indisputably

reveals that Bell’s speech addressed a matter of public concern. Bell composed

his song after a number of his female friends at school informed him that

Coaches Wildmon and Rainey had frequently sexually harassed them during

school. The lyrics of Bell’s song 2 describe in detail the female students’

allegations of sexual misconduct, e.g., describing Coach Wildmon as “telling

students that they [were] sexy,” and Coach Rainey as “rubbing on the black

girls’ ears in the gym.” With a darkly parodic—and, by many standards,

crude—tone, the song ridicules the coaches for their outrageously

inappropriate conduct with the female students, e.g., describing one coach as

having “drool running down [his] mouth” while he “look[s] down girls’ shirts,”

2Bell's Facebook page labels the song “P.S. Koaches,” but Bell's complaint identifies

the song's title as “PSK The Truth Needs to be Told.”

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and positing that Wildmon is “fucking around” because of his wife’s appearance

(the song states that “his wife ain’t got no titties”). 3 By describing Rainey as

“Bobby Hill the second,” the song also draws parallels between the coaches’

alleged sexual misconduct and the alleged sexual misconduct of a former

Itawamba coach, Bobby Hill, who was arrested the previous year for sending

sexually explicit text messages to a female student. Although the song does

contain some violent lyrics, the song’s overall “content” is indisputably a darkly

sardonic but impassioned protest of two teachers’ alleged sexual misconduct,

e.g., opining that Rainey is “a fool/30 years old fucking with students at the

school.” That Bell’s song may fall short of the School Board’s aesthetic

preferences for socio-political commentary is not relevant to determining

whether the rap song’s content addresses a matter of public concern. See, e.g.,

Snyder, 562 U.S. at 453 (observing that “[t]he arguably inappropriate or

controversial character of a statement is irrelevant to the question whether it

deals with a matter of public concern”) (internal quotation marks omitted). In

Snyder, the Supreme Court explicitly rejected the argument that the crude and

egregiously offensive messages on the anti-gay protesters’ signs—which

included “Fag Troops,” “God Hates the USA/Thank God for 9/11” and “Thank

God for Dead Soldiers”—should affect the inquiry into whether the signs

addressed a matter of public concern. Id. at 454. According to the Court,

3 Notably, the instances of sexual misconduct detailed in Bell’s lyrics were not

unsubstantiated. Four different female students submitted sworn affidavits detailing the

sexual harassment they endured at the hands of the coaches. For instance, consistent with

Bell’s lyrics, one female student stated in her sworn affidavit that Rainey had rubbed her

ears without her permission. Likewise, another female student claimed that Wildmon had

looked down her shirt; told her that she “was one of the cutest black female students” at

Itawamba; commented on her “big butt”; and told her that he “would date her if [she] were

older.” Another female student consistently stated that Rainey told her, “Damn, baby, you

are sexy,” while in the school gym. Another female student stated that Rainey told her that

he would “turn” her “back straight from being gay.”

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“[w]hile these messages may fall short of refined social or political

commentary, the issues they highlight . . . are matters of public import.” Id.

So much more so here where Bell addresses a serious issue of alleged teacher

sexual misconduct toward minor students. Indeed, similar to Snyder, even if

some of Bell’s lyrics were crude and contained violent imagery, “th[is] would

not change the fact that the overall thrust and dominant theme of [Bell’s song]

spoke to broader public issues.” See id.

The “form” of Bell’s speech, i.e., a rap song, likewise militates in favor of

finding that it addresses a matter of public concern. It is axiomatic that music,

like other art forms, has historically functioned as a mechanism to raise

awareness of contemporary social issues. 4 Rap is no exception. “Over the past

twenty years there has been extensive academic discourse on the role of rap

music . . . as a form of political expression.” Commonwealth v. Gray, 463 Mass.

731, 755 n.24 (2012) (collecting authorities). A long aspiring rap artist

himself, 5 Bell invoked this same tradition by deploying the artistic conventions

and style of the rap genre in order to critique the coaches’ sexual harassment

of female students.

Finally, the “context” of Bell’s speech likewise evinces that it addresses

a matter of public import. By releasing his song on the Internet, Bell sought

to bring attention to the coaches’ sexual misconduct against his female

classmates, just as the Westboro group in Snyder sought to bring attention to

its protest by picketing in public. See Snyder, 562 U.S. at 454–55 (concluding

that the “context” of “[the protesters’] signs, displayed on public land next to a

4 See, e.g., Bob Dylan, The Times They Are A-Changin’, on The Times They Are a

Changin’ (Columbia Records 1964) (“Come Senators, Congressmen, please heed the call.

Don’t stand in the doorway, don’t block up the hall.”).

5 Bell’s stage name is “T-Bizzle.”

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public street, reflect the fact that the church finds much to condemn in modern

society”). In a monologue introduction on the YouTube version of his song, Bell

described the genesis of the rap as follows:

A lot of people been asking me lately you know what was my

reasoning behind creating P.S. Koaches. It’s . . . something that’s

been going on . . . for a long time [] that I just felt like I needed to

address. I’m an artist . . . I speak real life experience. . . .

Later, at the Disciplinary Committee meeting, Bell likewise explained that the

song was an effort to “speak out” on the issue of teacher-on-student sexual

harassment. 6

Although Bell was an enrolled high school student, he was not within the

custody of the school system when he initially composed, recorded, and posted

his rap song on the Internet during the Christmas holidays. At that time he

was eighteen years old but living with his mother, and therefore was an adult

capable of making his own decisions as to expressing his views publicly. Even

if he had still been a minor at the time he composed and posted his song, he

would have been subject to the exclusive control, custody, and discipline of his

parent—not the school system. See Shanley v. Ne. Indep. Sch. Dist., 462 F.2d

960, 964 (5th Cir. 1972). Because Bell’s speech did not fall within any of the

narrow unprotected categories of speech recognized by the Supreme Court (e.g.,

obscenity or a true threat), 7 it was fully protected speech and presumptively

6Bell also explained that he did not immediately report the teachers’ misconduct to

school authorities because, in his view, school officials generally ignored complaints by

students about the conduct of teachers.

7 Although the School Board claims that Bell’s speech constitutes a “true threat,” this

argument is without merit for the reasons explained in the panel majority opinion. See Bell

v. Itawamba Cnty. Sch. Bd., 774 F.3d 280, 300–03 (5th Cir. 2014) (explaining that Bell’s song

did not constitute a “true threat,” “as evidenced by, inter alia, its public broadcast as a rap

song, its conditional nature, and the reactions of its listeners”). In any event, as explained

herein, the majority opinion does not conclude that Bell’s song was a true threat. See Maj.

Op. pp. 26, 33–34. Nor could it.

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not subject to governmental regulation or censorship on the basis of its content.

See Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975) (“Speech that is

neither obscene as to youths nor subject to some other legitimate proscriptions

cannot be suppressed solely to protect the young . . .”). Beyond that basic First

Amendment protection, however, the content, form, and context of Bell’s

speech indisputably reveals that it was also entitled to “special protection”

against censorship because it was speech on a matter of public concern

safeguarded “at the heart” of the First Amendment’s protections. Snyder, 562

U.S. at 451–52. Therefore, at a bare minimum, Bell was entitled to as much,

if not more, First Amendment protection as tortfeasors and public employees

when the state attempts to regulate their speech addressing matters of public

concern. See, e.g., Snyder, 562 U.S. at 459–60 (holding that speakers on

matters of public concern could not be held liable in tort for intentional

infliction of emotional distress, intrusion upon seclusion, and civil conspiracy

on the basis of their speech); United States v. Nat’l Treasury Employees Union,

513 U.S. 454, 466–68 (1995) (explaining the restrictions upon the government

to punish employees when they speak on matters of public concern); Rankin,

483 U.S. at 386–89 (holding that threatening statement by public employee

addressed a matter of public concern and government could not terminate her

on the basis of that speech). Moreover, while it is not dispositive of this case,

it bears mentioning that the School Board has never attempted to argue that

Bell’s song stated any fact falsely.

The majority opinion, however, wholly ignores these critical aspects of

Bell’s speech, 8 instead reflexively reducing Bell’s rap song to “intimidating,

8The majority opinion instead summarily concludes that the “misconduct alleged by

Bell against the two teachers is, of course, not at issue.” See Maj. Op. p. 13. Of course, I

agree that the veracity of these allegations is not the “issue” in this case anymore than the

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harassing, and threatening” speech without any analysis whatsoever. Indeed,

under the majority opinion’s newfound approach, Bell’s off-campus speech is

regulable by school officials pursuant to Tinker because (i) Bell wanted his

speech to be heard by community members and (ii) “a layperson” apparently

would view some of the lyrics in the rap as “threatening,” “harassing,” and

“intimidating.” As an initial matter, I am compelled to point out that the

majority opinion’s test unabashedly adopts almost the precise wording of the

Itawamba County School Board’s disciplinary policy. Unmoored from

traditional constitutional law analysis, the majority opinion instead exalts this

single school board’s policy to a new rule of constitutional law. See Maj. Op. p.

25 (holding that Tinker applies where student’s off-campus speech is

threatening, harassing and intimidating).

Furthermore, Snyder itself squarely illumines the errors in the

majority’s two-prong test. Turning first to the majority opinion’s flawed

criticism of Bell’s intention to publicize his message, the Supreme Court in

Snyder explicitly held that a speaker’s efforts to communicate his message to

the public is a reason to provide his speech with heightened protection—not a

reason to permit greater regulation by the state. 562 U.S. at 454–55

(concluding that protesters’ decision to conduct their protest “on public land

next to a public street” evinced that the speech addressed a matter of public

concern). Yet, in direct contradiction to Snyder, the majority opinion’s

proffered framework perversely faults Bell for his efforts to publicize the

teachers’ sexual misconduct, thus creating precedent that contravenes the very

veracity of Westboro’s signs was the “issue” in Snyder. What is at issue, however, is whether

publicly protesting that alleged misconduct warrants “special protection” for Bell’s speech.

The answer to that question, as explained above, is yes. In any event, however, Bell has

offered uncontroverted proof of the coaches’ sexual harassment of the minor female students

in the form of sworn affidavits detailing that abuse, which were introduced into evidence in

this case.

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values that the First Amendment seeks to protect. See Hustler Magazine, Inc.

v. Falwell, 485 U.S. 46, 50 (1988) (“At the heart of the First Amendment is the

recognition of the fundamental importance of the free flow of ideas and

opinions on matters of public interest and concern.”).

In addition, contrary to the majority opinion’s focus on how a “layperson”

apparently would perceive Bell’s speech, the Supreme Court’s cases, including

Snyder, demonstrate that listeners’ subjective opinions about speech cannot

control whether speech addresses a matter of public concern or not. For

example, in Snyder, the Court explained that “[t]he arguably ‘inappropriate or

controversial character of a statement is irrelevant to the question whether it

deals with a matter of public concern.’” 562 U.S. at 453. (quoting Rankin, 483

U.S. at 387). Specifically, in Snyder, a layperson likewise might have viewed

the anti-gay protesters’ messages as harassing (“God Hates You”), intimidating

(“You’re Going to Hell”), and threatening (“Thank God for Dead Soldiers,”

“Thank God for IEDs”), but the Court nevertheless held that “the overall thrust

and dominant theme of Westboro’s demonstration spoke to broader public

issues” entitling it to “special protection.” Id. at 454. Thus, the “special

protection” that must be afforded to Bell’s speech here cannot be qualified by

the majority opinion’s mere conjecture that some hypothetical “layperson”

might consider a few of Bell’s lyrics to fit the Oxford English Dictionary’s

definition of “threatening,” “harassing” or “intimidating.” See id. Indeed, there

is no constitutional basis for excluding “threatening,” “harassing,” or

“intimidating” speech from the “special protection” that is afforded speech on

matters of public concern. The majority opinion’s approach is thus tantamount

to permitting mainstream sensitivities to define whether speech addresses a

matter of public concern or not. Snyder clearly demonstrates that approach is

flawed. Id. at 453; see also Cohen v. California, 403 U.S. 15, 21 (1971)

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(recognizing that the First Amendment does not permit “a majority to silence

dissidents simply as a matter of personal predilections”).

In sum, by refusing to recognize that Bell’s speech addresses a matter of

public concern and is thereby entitled to “special protection” against

censorship, the majority opinion creates a precedent that effectively inoculates

school officials against off-campus criticism by students. In so doing, the

majority opinion fails to take seriously the long-established principle that the

First Amendment was adopted to protect “vehement, caustic, and sometimes

unpleasantly sharp attacks on government and public officials.” Sullivan, 376

U.S. at 270; cf. City of Houston v. Hill, 482 U.S. 451, 465 (1987) (holding that

the First Amendment does not permit states to “provide the police with

unfettered discretion to arrest individuals for words or conduct that annoy or

offend them”). Contrary to the majority opinion’s position, school officials are

no exception. See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624,

637 (1943) (“The Fourteenth Amendment . . . protects the citizen against the

State itself and all of its creatures—Boards of Education not excepted.”);

Shanley, 462 F.2d at 964 (“It should have come as a shock to the parents of

five high school seniors . . . that their elected school board had assumed

suzerainty over their children before and after school, off school grounds, and

with regard to their children’s rights of expressing their thoughts. We trust

that it will come as no shock whatsoever to the school board that their

assumption of authority is an unconstitutional usurpation of the First

Amendment.”).

II.

The en banc majority opinion affirms the School Board’s punishment of

Bell pursuant to its new and unprecedented rule of constitutional law whereby

schools may punish students’ off-campus speech pursuant to Tinker if that

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speech is intentionally directed at the school community and is “threatening,

harassing, and intimidating” to the ears of a “layperson” without any

instruction on the meaning of these terms. The majority opinion’s content-

based, vague, and “layperson”-based restriction directly conflicts with the core

principles underlying the First Amendment’s guarantees as explained by the

Supreme Court.

A.

“The First Amendment provides that ‘Congress shall make no law . . .

abridging the freedom of speech.’” United States v. Stevens, 559 U.S. 460, 468

(2010). As a general matter, the First Amendment prohibits the government

from “restrict[ing] expression because of its message, its ideas, its subject

matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S.

564, 573 (2002). “From 1791 to the present, however, the First Amendment

has permitted restrictions upon the content of speech in a few limited areas,

and has never included a freedom to disregard these traditional limitations.”

Stevens, 559 U.S. at 468. “These limited areas—such as obscenity, incitement,

and fighting words—represent well-defined and narrowly limited classes of

speech, the prevention and punishment of which has never been thought to

raise any constitutional problem.” Brown v. Entm’t Merchants Ass’n, 131 S.

Ct. 2729, 2733 (2011) (internal quotation marks and citations omitted).

In Brown, the Supreme Court specifically rejected the argument that

state officials retain a broad “free-floating power” to create whole new

categories of unprotected speech that are applicable solely to minors, even if

such speech is deemed harmful in the eyes of the government. Id. at 2735–36.

In that case, the Court struck down as violative of the First Amendment a

California law that prohibited the sale or rental of violent video games to

minors. Id. at 2732-33. Specifically, the law proscribed the sale or rental to

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minors of video “games ‘in which the range of options available to a player

includes killing, maiming, dismembering, or sexually assaulting an image of a

human being, if those acts are depicted’ in a manner that ‘[a] reasonable

person, considering the game as a whole, would find appeals to a deviant or

morbid interest of minors,’ that is ‘patently offensive to prevailing standards

in the community as to what is suitable for minors,’ and that ‘causes the game,

as a whole, to lack serious literary, artistic, political, or scientific value for

minors.’” Id. (quoting Cal. Civ. Code. Ann. § 1746(d)(1)(A)). California

purportedly enacted the law based on its legislative judgment, which it claimed

was supported by research, that such games were harmful to children. Id. at

2738-39. In defending the law, California argued, inter alia, that the First

Amendment permitted it “to create a wholly new category of content-based

regulation that is permitted only for speech directed at children”—viz.,

“violent” speech as defined above that lacked “serious literary, artistic,

political, or scientific value for minors.” Id. at 2733–35.

In a strongly worded opinion by Justice Scalia, the Supreme Court

rejected California’s arguments and struck down the law. Concluding that its

recent decision in United States v. Stevens, 559 U.S. 460 (2010), 9 controlled the

9 In Stevens, the United States government had attempted to leverage similar

arguments in defending a federal statute banning depictions of animal cruelty. 559 U.S. at

468-69. The United States argued that “depictions of animal cruelty” should be added to the

list of categories of unprotected speech, alongside obscenity, incitement, and defamation. Id.

However, because there was no “tradition excluding depictions of animal cruelty from ‘the

freedom of speech’ codified in the First Amendment,” the Court refused to create a new

category of unprotected speech for such depictions. Id. The Court also explicitly rejected “as

startling and dangerous” the government’s contention that it could create new categories of

unprotected speech by applying a “simple balancing test” that weighs the value of a particular

type of speech against its social costs. Id. at 470. According to the Court,

[t]he First Amendment’s guarantee of free speech does not extend only to

categories of speech that survive an ad hoc balancing of relative social costs

and benefits. The First Amendment itself reflects a judgment by the American

people that the benefits of its restrictions on the Government outweigh the

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outcome of the case, the Court held that California could not defend its law by

analogizing the violent speech at issue to the obscenity exception to the First

Amendment because its prior “cases have been clear that the obscenity

exception . . . does not cover whatever a legislature finds shocking, but only

depictions of sexual conduct.” Id. at 2734. More critically, however, the Court

outright rejected California’s argument that the First Amendment permitted

the state “to create a wholly new category of content-based regulation,” i.e.,

speech containing violent imagery, “that is permissible only for speech directed

at children.” Id. at 2735. Although acknowledging that the state “possesses

legitimate power to protect children from harm,” the Court concluded that such

power “does not include a free-floating power to restrict the ideas to which

children may be exposed.” Id. at 2736. Further, while noting that California’s

argument would “fare better if there were a longstanding tradition in this

country of specially restricting children’s access to depictions of violence,” the

Court observed that there was no such tradition, as evidenced by the extent of

violence contained in common children’s stories (e.g., Hansel and Gretel) and

high school reading lists (e.g., the description in “Lord of the Flies” of a

schoolboy who is savagely murdered by other children). Id. at 2736.

Accordingly, as in Stevens, because there was no “longstanding tradition” of

prohibiting minors’ participation in speech containing violent imagery, the

Court refused to hold that such speech is categorically exempted from First

Amendment protection. Id. at 2736-38.

cost. Our Constitution forecloses any attempt to revise that judgment simply

on the basis that some speech is not worth it.

Id. A subsequent, much more narrow version of the statute at issue in Stevens, was upheld

by our court. United States v. Richards, 755 F.3d 269, 271, 279 (5th Cir. 2014) (discussing

history of 18 U.S.C. § 48 and upholding version that proscribed only “unprotected obscenity”),

cert. denied, 135 S. Ct. 1546 (2015).

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Applying these principles to the instant case, Brown represents a forceful

reaffirmation by the Court that the First Amendment applies to minors, 10 id.

at 2735, and that the government may only restrict that constitutional right in

“narrow and well-defined circumstances,” id. at 2736 (citing Erznoznik, 422

U.S. at 212–13). Indeed, after Brown, it cannot seriously be contested that

minors enjoy the First Amendment right to engage in speech containing violent

imagery when they are at home, away from school, so long as that speech does

not rise to the level of a true threat, incitement or fighting words. See id. at

2736-38 (holding that speech containing violent imagery is protected under the

First Amendment, even for minors). Nevertheless, the majority opinion wholly

fails to reckon with these important statements by the Court. Instead, by

simply assuming that all children speak “qua students,” its legal analysis

begins with the false premise that the speech at issue constitutes “student

speech” that must be “tempered in the light of a school official’s duty” to teach

students appropriate behavior. See Maj. Op. p. 14 (discussing the First

Amendment rights of “[s]tudents qua students”). But the Supreme Court has

never suggested that minors’ constitutional rights outside of school are

somehow qualified if they coincidentally are enrolled in a public school. To the

contrary, Brown evinces that the majority opinion instead should have begun

10 In so holding, the Court also explicitly rejected Justice Thomas’ contention in his

dissent that minors have no right to speak absent their parents’ consent. Id. at 2736 n.3

(noting that Justice Thomas “cites no case, state or federal, supporting this view, and to our

knowledge there is none”). Although conceding that the government may have authority to

enforce parental prohibitions in certain circumstances (e.g., forcing concert promoters not to

admit minors whose parents have forbidden them from attending), the Court nevertheless

observed that “it does not follow that the state has the power to prevent children from hearing

or saying anything without their parents’ prior consent. The latter would mean, for example,

that it could be made criminal to admit persons under 18 to a political rally without their

parents’ prior written consent—even a political rally in support of laws against corporal

punishment of children, or laws in favor of greater rights for minors.” Id. (emphasis in

original).

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its analysis from the basic premise that children are entitled to “significant”

First Amendment rights. 131 S. Ct. at 2735–36.

Further, Brown and Stevens illuminate the error in the majority

opinion’s decision to proclaim an entirely new, content-based restriction on

students’ First Amendment rights. Although acknowledging that the

government has certain powers to protect children from harm, the Supreme

Court in Brown expressly held that this “does not include a free-floating power

to restrict the ideas to which children may be exposed.” 131 S. Ct. at 2736. In

so holding, the Court echoed the principles announced in Stevens and rejected

the argument that the state is empowered to carve out new “categorical

exemptions” to the First Amendment’s protections (e.g., obscenity) that are

solely applicable to minors absent a “longstanding tradition” of restricting such

speech. Id. In direct contradiction to these principles, however, the majority

opinion here affords state officials with precisely such a “free-floating power”

by effectively permitting them to regulate an unprecedented and content-based

category of speech, i.e., “threatening,” “harassing,” and “intimidating” speech

that is directed at the school community. Yet, the majority opinion cites no

“longstanding tradition” in this country of “specially restricting” children’s

ability to engage off campus in “threatening,” “harassing,” or “intimidating”

speech. Nor could it. See id. (“California’s argument would fare better if there

were a longstanding tradition in this country of specially restricting children’s

access to depictions of violence, but there is none.”); Stevens, 559 U.S. at 469

(“But we are unaware of any similar tradition excluding depictions of animal

cruelty from ‘the freedom of speech’ codified in the First Amendment, and the

Government points us to none.”). To the extent the majority opinion posits this

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category of speech is without redeeming social value 11 or that its risks

outweigh its costs, the Supreme Court has flatly rejected such a rationale for

carving out new categories of unprotected speech. See Stevens, 559 U.S. at 470

(“The First Amendment’s guarantee of free speech does not extend only to

categories of speech that survive an ad hoc balancing of relative social costs

and benefits.”). In this connection, the Court in Brown likewise held that

majoritarian abhorrence for a category of speech (i.e., violent speech) will not

justify a categorical restriction upon that type of speech. See Brown, 131 S.

Ct. at 2733 (“Under our Constitution, esthetic and moral judgments about art

and literature . . . are for the individual to make, not for the Government to

decree, even with the mandate or approval of a majority.” (internal quotation

marks and citation omitted)). Moreover, contrary to the majority opinion’s

approach, the Supreme Court in both Brown and Stevens emphasized that the

“historic and traditional categories” of unprotected speech (e.g., fighting words,

obscenity) are “well defined and narrowly limited.” See Brown, 131 S. Ct. at

2733; Stevens, 559 U.S. at 468-69. Here, far from announcing a “narrow” or

“well defined” restriction on speech, the majority opinion simply declares that

schools may regulate off-campus student speech that its invented layperson

might consider “threatening,” “harassing,” or “intimidating.” As detailed

below, the breadth of these content-based restrictions will leave students to

speak at their own peril away from school, because school officials will be

unconstrained due to the majority opinion’s failure to provide any specific or

determinate definition of “threatening,” “harassing,” or “intimidating.”

11 However, as explained above, Bell’s speech clearly had “social value” as it

constituted speech on a matter of public concern.

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B.

The Court’s opinion in Reno v. American Civil Liberties Union, 521 U.S.

844 (1997), further reveals the flaws in the majority opinion’s holding that

schools may regulate students’ off-campus online speech, like Bell’s. Reno was

the first significant First Amendment case specifically pertaining to the

Internet to reach the Supreme Court, and concerned a facial challenge to a

congressional statute, the Communications Decency Act of 1996 (“CDA”),

which was aimed at protecting minors from “indecent” and “patently offensive”

material on the Internet by prohibiting the transmission of those materials to

minors. 521 U.S. at 858-59. In striking down the CDA as violative of the First

Amendment, the Court articulated a number of principles that are directly

pertinent to the instant case.

First, Reno reveals that the majority opinion here is in error in

concluding that the advent of the Internet and other technologies necessitates

expanding schools’ authority to regulate students’ off-campus speech. See Maj.

Op. p. 19. In direct contradiction to the majority opinion’s logic, the Court in

Reno held that Supreme Court precedents “provide no basis for qualifying the

level of First Amendment scrutiny that should be applied to [the Internet].”

Id. at 870. Although the Court previously had recognized that special factors

justify greater regulation of speech expressed in broadcast media, see, e.g., FCC

v. Pacifica Foundation, 438 U.S. 726 (1978), the Court explicitly found that

“[t]hose factors are not present in cyberspace.” Reno, 521 U.S. at 868. 12

12The Court in Brown echoed this principle in observing that government should not

be afforded greater deference to restrict speech when new communication technologies

emerge. 131 S. Ct. at 2733 (“[W]hatever the challenges of applying the Constitution to ever-

advancing technology, ‘the basic principles of freedom of speech and the press, like the First

Amendment’s command, do not vary’ when a new and different medium for communication

appears.”) (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952)); accord Citizens

United v. Federal Election Comm’n, 558 U.S. 310, 326 (2010) (“Courts, too, are bound by the

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Nevertheless, the majority opinion overlooks these unequivocal statements by

the Supreme Court. See, e.g., Maj. Op. p. 19 (concluding that “[t]he advent of

[the Internet and other] technologies and their sweeping adoption by students

present new and evolving challenges for school administrators, confounding

previously delineated boundaries of permissible regulations”).

In addition, the Court’s analysis in Reno reveals how the majority

opinion’s ill-devised framework for regulating minors’ off-campus Internet

speech would be too vague altogether for the First Amendment to tolerate. The

Court in Reno took special issue with the vagueness of the terms that the CDA

utilized to describe the proscribed speech. Id. at 871. For example, the Court

emphasized that the statute did not define either “indecent” material or

material that “in context, depicts or describes, in terms patently offensive as

measured by contemporary community standards, sexual or excretory

activities or organs.” Id. As the Court observed, “[g]iven the absence of a

definition of either term, this difference in language will provoke uncertainty

among speakers about how the two standards relate to each other and just

what they mean. Could a speaker confidently assume that a serious discussion

about birth control practices, homosexuality, the First Amendment issues

raised by the Appendix to our Pacifica opinion, or the consequences of prison

rape would not violate the CDA?” Id.

Similar vagueness concerns drove Justice Alito to conclude that the

California “violent video game” regulation in Brown violated the Constitution.

Brown, 131 S. Ct. at 2743-46 (Alito, J., joined by Roberts, C.J., concurring in

the judgment). As Justice Alito observed, one of the elements defining the

First Amendment. We must decline to draw, and then redraw, constitutional lines based on

the particular media or technology used to disseminate political speech from a particular

speaker.”).

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proscribed violent video games was whether a “reasonable person, considering

[a] game as a whole,” would find that it “appeals to a deviant or morbid interest

of minors.” Id. at 2745. However, as Justice Alito observed, the “prevalence of

violent depictions in children’s literature and entertainment creates numerous

opportunities for reasonable people to disagree about which depictions may

excite ‘deviant’ or ‘morbid’ impulses.” Id. at 2746.

Here, the en banc majority opinion similarly announces a new,

categorical restriction upon students’ off-campus speech that fails to “give

people of ordinary intelligence fair notice of what is prohibited.” See id. at

2743. Specifically, the majority opinion holds that school officials may punish

students’ off-campus speech when (i) it is intended to be heard by the school

community; (ii) could be perceived by a layperson as “threatening,” harassing,”

and “intimidating,”; and (iii) satisfies the Tinker “substantial-disruption”

framework. See Maj. Op. pp. 25–26. As with the statute struck down in Reno,

however, each one of these three prongs to the majority opinion’s framework

contains defects that fail to provide students, like Bell, with adequate notice of

when their off-campus speech crosses the critical line between protected and

punishable expression. First, the majority opinion’s focus on whether the

student “intended” his speech to reach the school community significantly

burdens the ability of students to engage in online speech, because virtually

any speech on the Internet can reach members of the school community. See

Reno, 521 U.S. at 870 (observing that the Internet permits “any person . . . [to]

become a town crier with a voice that resonates farther than it could from any

soapbox”). How, then, can a student be certain that his off-campus blog posting

will not be read by members of the school community and thereby be deemed

by school officials to be “intentionally direct[ed] at the school community”? As

a result of the ambiguities in the majority opinion’s framework, he simply

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cannot. See id. (“Through the use of Web pages, mail exploders, and

newsgroups, the same individual can become a pamphleteer.”).

Second, the majority opinion’s “threatening, harassing, and

intimidating” test suffers from the precise same ambiguities that drove the

Court to strike down the CDA in Reno. As with the CDA, the majority opinion

fails to provide any meaningful definition of what constitutes “threatening,”

“harassing,” or “intimidating” speech. Rather, the majority opinion merely

concludes that if a “layperson would understand” 13 speech to qualify as

“threatening,” “harassing,” and “intimidating,” then that speech is regulable

under Tinker. In so holding, the majority opinion fails to apprehend that

reasonable minds may differ about when speech qualifies as “threatening,”

harassing,” or “intimidating.” As the Supreme Court’s First Amendment

precedents make clear, “it is . . . often true that one man’s vulgarity is another’s

lyric,” Cohen v. California, 403 U.S. 15, 25 (1971), and that the very same

words may simultaneously be perceived as repulsive to some and political to

others, see Snyder, 562 U.S. at 444–45 (“Westboro may have chosen the picket

location to increase publicity for its views, and its speech may have been

particularly hurtful to Snyder. That does not mean that its speech should be

afforded less than full First Amendment protection under the circumstances of

13 Unfortunately, the majority opinion provides virtually no details about the identity

of its apocryphal layperson. In any event, I am dubious that a school board may punish

students for making statements at home and on the Internet that the most sensitive of

listeners in society would find to be “threatening,” “harassing,” or “intimidating.” See

Ashcroft, 542 U.S. at 674 (Stevens, J. concurring) (“I continue to believe that the Government

may not penalize speakers for making available to the general World Wide Web audience

that which the least tolerant communities in America deem unfit for their children’s

consumption.”). Nevertheless, by permitting school officials to punish off-campus speech like

Bell’s pursuant to Tinker, the majority opinion announces a precedent whereby the First

Amendment rights of minors outside of school are “only . . . as strong as the weakest, or at

least the most thin-skinned, listener in a crowd.” Cuff ex re. B.C. v. Valley Cent. Sch. Dist.,

677 F.3d 109, 120 (2d Cir. 2012) (Pooler, J., dissenting).

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this case.”). Thus, “[g]iven the vague contours of the coverage of the [majority

opinion’s framework], it [will] unquestionably silence[] some speakers whose

messages would be entitled to constitutional protection.” Reno, 521 U.S. at

874.

Third, the aforementioned concerns are exacerbated by the fact that the

Tinker standard itself could be viewed as somewhat vague. 14 Tinker permits

schools to regulate on-campus expressive activities not only when the speech,

in fact, causes a substantial disruption, but also when school officials can

“reasonably forecast” such a disruption, Tinker, 393 U.S. at 514. If this

standard were applied off campus, how can a student or a student’s parents

know with any degree of certainty when off-campus online speech can be

“forecasted” to cause a “substantial disruption”? Although Tinker is not a

completely toothless standard, see A.M. ex rel. McAllum v. Cash, 585 F.3d 214,

221 (5th Cir. 2009), its framework inherently requires guesswork about how a

third-party school official will prophesize over the effect of speech. Thus, in

light of the majority opinion, before a student drafts an email or writes a blog

entry, he hereinafter will be required to conjecture over whether his online

speech might cause a “disruption” that is “substantial” in the eyes of school

officials, or, alternatively, whether a school official might reasonably portend

that a substantial disruption might happen. In this way, the majority opinion

erroneously defines the contours of protected speech with reference to the

potential reactions of listeners. See Beckerman v. City of Tupelo, 664 F.2d 502,

509 (5th Cir. 1981) (observing that the Supreme Court’s cases concerning the

“hecklers’ veto” show that it “is not acceptable for the state to prevent a speaker

14As explained below, this framework makes sense for student speech occurring on

campus, where school officials have competing interests in maintaining conduct in the

schools. However, this standard is inappropriate where, as here, the school’s interest is

comparatively attenuated.

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from exercising his constitutional rights because of the reaction to him by

others”).

What will be the direct consequence of these various layers of vagueness

upon students’ First Amendment freedoms? “[I]t will operate[] to chill or

suppress the exercise of those freedoms by reason of vague terms or overbroad

coverage.” See Nevada Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2353

(2011) (Kennedy, J. concurring). Indeed, for students, whose performance at

school largely determines their fate in the future, even the specter of

punishment will likely deter them from engaging in off-campus expression that

could be deemed controversial or hurtful to school officials. Accord Reno, 521

U.S. at 871–72 (“The vagueness of such a regulation raises special First

Amendment concerns because of its obvious chilling effect on free speech.”).

Such a burden on student’s expressive activities simply cannot be reconciled

with the long-established principle that “the point of all speech protection . . .

is to shield [from censorship] just those choices of content that in someone’s

eyes are misguided, or even hurtful.” Hurley v. Irish–American Gay, Lesbian

and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995).

C.

Further, by adopting a rule that focuses on whether a “layperson” would

perceive Bell’s speech as “threatening,” “harassing,” and “intimidating,” the

majority opinion also ignores Supreme Court case law that demands a more

burdensome showing upon the government before levying penalties upon a

speaker based on the content of his speech.

Amongst the most consistent principles of First Amendment

jurisprudence has been the need for “[e]xacting proof requirements” before

imposing liability for speech. See Illinois ex rel. Madigan v. Telemarketing

Associates, Inc., 538 U.S. 600, 620 (2003). For example, the Supreme Court

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has explicitly rejected arguments permitting tort liability to be imposed for

speech pertaining to public figures simply because it “is patently offensive and

is intended to inflict emotional injury.” Falwell, 485 U.S. at 50. Rather, in

order to “give adequate ‘breathing space’ to the freedoms protected by the First

Amendment,” the Court has held that a public figure must prove not only

falsity but also actual malice. Id. at 56. Similarly, in the criminal context,

“mens rea requirements . . . provide ‘breathing room’ for more valuable speech

by reducing an honest speaker’s fear that he may accidentally incur liability

for speaking.” United States v. Alvarez, 132 S. Ct. 2537, 2553 (2012) (Breyer,

J., concurring in the judgment). Thus, in Brandenburg v. Ohio, 395 U.S. 444

(1969), the Supreme Court reversed the conviction of a Ku Klux Klan leader

for threatening “revengeance” if the “suppression” of the white race continued,

relying on “the principle that the constitutional guarantees of free speech and

free press do not permit a State to forbid or proscribe advocacy of the use of

force or of law violation except where such advocacy is directed to inciting or

producing imminent lawless action and is likely to incite or produce such

action.” Id. at 447 (emphasis added); see also Noto v. United States, 367 U.S.

290, 297–98 (1961) (“[T]he mere abstract teaching of . . . the moral propriety or

even moral necessity for a resort to force and violence, is not the same as

preparing a group for violent action and steeling it to such action.”).

Subsequently, the Court applied Brandenberg’s focus on the “intent” of the

speaker to hold that a speaker may not be held liable for damages in a civil

case even when his remarks “might have been understood . . . as intending to

create a fear of violence.” N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886,

904, 927 (1982) (emphasis added).

Applying these well-established First Amendment principles, the

Supreme Court in Virginia v. Black, 538 U.S. 343 (2003), struck down a

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Virginia statute that criminalized burning a cross in public “with the intent of

intimidating any person,” and which provided that the public burning of a cross

“shall be prima facie evidence of an intent to intimidate.” Id. at 347–48.

Although cross burning is “widely viewed as a signal of impending terror,” id.

at 391 (Thomas, J., concurring), “in light of [its] long and pernicious history as

a signal of impending violence,” id. at 363 (opinion of O’Connor, J.), a plurality

of the Court held that a subjective intent requirement was necessary in order

to distinguish “constitutionally proscribable intimidation” from “core political

speech,” id. at 365–66. “Intimidation in the constitutionally proscribable sense

of the word is a type of true threat, where a speaker directs a threat to a person

or group of persons with the intent of placing the victim in fear of bodily harm

or death.” Id. at 360 (emphasis added). As the plurality explained, the prima

facie evidence provision of the statute was facially unconstitutional because it

“ignore[d] all the contextual factors that are necessary to decide whether a

particular cross burning was intended to intimidate. The First Amendment

does not permit such a short cut.” Id. at 367. In other words, the prima facie

evidence provision “strip[ped] away the very reason a state may ban cross

burning with the intent to intimidate.” Id. at 365.

Recently, in Elonis v. United States, 135 S. Ct. 2001 (2015), the Supreme

Court was presented with the opportunity to revisit its reasoning in Virginia

v. Black and clarify whether or not the First Amendment requires a speaker to

have a “subjective intent” to threaten an individual before the government can

impose criminal penalties for a threat. Id. at 2004 (“The question is whether

[18 U.S.C. § 875(c)] . . . requires that the defendant be aware of the threatening

nature of the communication, and—if not—whether the First Amendment

requires such a showing.”). The Court, however, avoided this constitutional

question by deciding the case on narrower grounds, viz., that a jury instruction

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explaining that petitioner could be convicted upon a showing of negligence was

inconsistent with the statute’s implicit mens rea requirement. Id. at 2012

(“The jury was instructed that the Government need only prove that a

reasonable person would regard Elonis’s communications as threats, and that

was error. . . . Given our disposition, it is not necessary to consider any First

Amendment issues.”). Specifically, the Court outright rejected the

government’s contention that the statute permitted petitioner to be convicted

if he (i) knew the “contents and context” of his speech and (ii) “a reasonable

person would have recognized that the [speech] would be read as genuine

threats.” Id. at 2011. While recognizing that such a “‘reasonable person’

standard is a familiar feature of civil liability in tort law,” the Court concluded

that the standard is “inconsistent with the conventional requirement for

criminal conduct—awareness of some wrong doing.” Id. (internal quotation

marks omitted).

Applying the foregoing principles to the instant case, the majority

opinion errs by making the scope of Bell’s First Amendment rights outside of

school contingent upon whether a “layperson” might interpret his speech to be

“threatening,” “harassing,” and “intimidating,” see Maj. Op. pp. 26–27, and

whether a school official might “reasonably” forecast a substantial disruption

based on his speech, see Maj. Op. pp. 30–31. The majority opinion’s test

effectively amounts to the very kind of negligence standard that the Supreme

Court has rejected for determining whether a speaker may be held liable on

the basis of his words. See, e.g., Claiborne Hardware Co., 458 U.S. at 928–29;

Brandenburg, 395 U.S. at 447. Further, by permitting Bell to be punished

solely on the basis that a third-party might consider his speech “intimidating”

or “threatening,” the majority opinion ignores the Court’s explanation in Black

that “[i]ntimidation in the constitutionally proscribable sense of the word is a

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type of true threat, where a speaker directs a threat to a person or group of

persons with the intent of placing the victim in fear of bodily harm or death.”

538 U.S. at 360 (emphasis added). Instead, perhaps conceding sub silentio that

Bell’s speech does not satisfy the demanding “true threat” standard described

in Black, the majority opinion circumvents this issue altogether by creating an

entirely new and diluted test that renders speech unprotected so long as its

invented layperson might view the speech as “intimidating,” “harassing,” and

“threatening,” despite the fact that such speech does not constitute a “true

threat.” See Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280, 300–03 (5th Cir.

2014) (explaining that Bell’s song did not constitute a “true threat,” “as

evidenced by, inter alia, its public broadcast as a rap song, its conditional

nature, and the reactions of its listeners”). Moreover, the majority opinion’s

approach is especially problematic in light of the critical fact that Bell’s speech

addresses a matter of public concern. In cases involving speech addressing

public figures and matters of public import, the Court has consistently applied

a stricter evidentiary burden before permitting liability to be imposed on a

speaker on the basis of his speech. See, e.g., Falwell, 485 U.S. at 56 (holding

that “public figures and public officials” must prove “actual malice” in addition

to falsity before recovering for intentional infliction of emotional distress on

the basis of speech directed at them); Sullivan, 376 U.S. at 279–80 (holding

that the First Amendment “prohibits a public official from recovering damages

for a defamatory falsehood relating to his official conduct unless he proves that

the statement was made with ‘actual malice’”). Here, in sharp contrast, the

majority opinion announces a constitutional rule whereby students, like Bell,

may be held liable for their off-campus speech that criticizes official misconduct

based largely on the reactions of the very officials in question or the perception

of the majority opinion’s invented “layperson.” Such a flimsy standard simply

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cannot be squared with the foregoing First Amendment precedents. See also

Pacifica Foundation, 438 U.S. at 745–46 (“[T]he fact that society may find

speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the

speaker’s opinion that gives offense, that consequence is a reason for according

it constitutional protection.”).

III.

In ultimately holding that the Tinker framework applies to off-campus

speech like Bell’s, the majority opinion ignores that Tinker’s holding and its

sui generis “substantial-disruption” framework are expressly grounded in “the

special characteristics of the school environment.” Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). In Tinker, the Court confronted the

question whether school officials may, consistent with the First Amendment,

restrict students’ expressive activities that occur at school. Id. Specifically,

the students in Tinker were suspended for wearing to school armbands that

expressed their opposition to the Vietnam War. Id. at 504. While recognizing

that students do not “shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate,” id. at 506, the Court also observed that

students’ exercise of their First Amendment rights at school must be calibrated

against the competing need of school officials “to prescribe and control conduct

in the schools,” id. at 507 (emphasis added). To reconcile the interests at stake

that may collide when student speech occurs on campus, the Court articulated

a rule that has become the lodestar for evaluating the scope of students’ on-

campus First Amendment rights ever since: while on campus, a student is free

to “express his opinions, even on controversial subjects, if he does so without

‘materially and substantially interfer(ing) with the requirements of

appropriate discipline in the operation of the school’ and without colliding with

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the rights of others.” Id. at 513 (quoting Burnside v. Byars, 363 F.2d 744, 749

(5th Cir. 1966)).

The Supreme Court’s holding in Tinker is expressly based upon the

“special characteristics of the school environment,” id. at 506, and the need to

defer to school officials’ authority “to prescribe and control conduct in the

schools,” id. at 507. Indeed, the very analytic content of the resulting

“substantial-disruption” framework evinces that the Court was solely

concerned with the potentially disruptive consequences of speech by students

that occurs on campus,

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