In Bell v. Itawamba County School Board, SCOTUS may rule on the First Amendment and online student speech.

Courts Are Hopelessly Fractured on First Amendment Protection for Students’ Online Speech

Courts Are Hopelessly Fractured on First Amendment Protection for Students’ Online Speech

The citizen’s guide to the future.
Feb. 18 2016 5:15 PM
FROM SLATE, NEW AMERICA, AND ASU

Judges Have No Idea What to Do About Student Speech on the Internet

The courts are hopelessly fractured. It’s time for the Supreme Court to step in.

high school student internet.
Without guidance from the Supreme Court, judges have no idea what to do about student speech on the Internet.

DragonImages/Thinkstock

Taylor Bell was furious. An 18-year-old public high school student in Fulton, Mississippi, Bell had heard from several friends that two school athletic instructors were sexually harassing female students, making lewd comments and touching them inappropriately. Bell considered reporting the instructors to administrators but decided against it; he had heard that school officials ignored student reports of teacher misconduct. Instead, Bell, an aspiring rapper, wrote and performed a song about the issue over winter break of 2010. The track, “P.S. Koaches the Truth Needs to Be Told,” detailed the coaches’ vulgar behavior, padded out with standard rap rhetoric (“betta watch your back”). Bell posted the song on Facebook and YouTube.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

When school officials discovered the song, they did not investigate the coaches or talk to their alleged victims. Instead, they called a hearing to discipline Bell. “I would say censor your material,” one Disciplinary Committee member told Bell. “Censor that stuff.” The committee suspended Bell and sent him to an “alternative school” for the rest of the grading period.

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Bell sued, alleging a violation of his First Amendment right to free speech. The 5th Circuit Court of Appeals ultimately ruled against him, holding that his speech could have caused a “substantial disruption,” thus rendering it constitutionally unprotected. Bell appealed to the Supreme Court, his last chance at relief. The justices are currently considering whether to take his case. If they do, Bell v. Itawamba County School Board will surely be the most important case about free speech and students’ rights in a generation, not to mention a milestone for Internet expression.

Technically, Bell’s case poses two distinct questions: First, do public school students have comprehensive First Amendment rights outside of the classroom? Second, if a student’s out-of-school Internet expression could be heard by his peers and classmates, does his school have the power to punish or censor him? In theory, these two puzzles could be solved separately. But Bell proves that they are really fundamentally intertwined—and that, without guidance from the Supreme Court, judges have no idea what to do about student speech on the Internet.

The problem here arises from a landmark 1969 Supreme Court case called Tinker v. Des Moines. In Tinker, three public school students in Des Moines, Iowa, were suspended from school for wearing black armbands to protest the Vietnam War. The students sued, insisting that their armbands qualified as expression protected by the First Amendment. In a lopsided 7–2 vote, the Supreme Court agreed, holding that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But the court also found that students do not have the exact same First Amendment rights as anybody else in the classroom: School authorities, the court explained, could still suppress speech that would “materially and substantially disrupt the work and discipline of the school.”

In Tinker, the court drew a clear distinction between student speech in school and speech outside of school, holding only the former to be censorable. That bright line made sense in 1969, when little that a student said outside of school could “materially and substantially disrupt” the school itself. Today, that noble attempt at bifurcation is basically useless, because anything students say online at any time—even outside of school, during a break or on the weekends—is easily accessible during school. Bell’s case illustrates this problem well: He never encouraged his classmates to play his song in school or played it there himself. But one of the coaches received a text message about the song from his wife, then persuaded a student to play it on his cellphone during school hours. Voila: “Substantial disruption.”

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The quandary today, then, is whether the Tinker test applies to students’ off-campus, online speech, when the student made no effort to disseminate that speech in school. In its majority decision, the 5th Circuit, sitting en banc, held that Tinker does apply—at least when a student “intentionally directs” his speech at the school community. That didn’t sit well with an ideologically disparate array of dissenters, who pilloried the majority for impinging on “the very core of our Constitution’s fundamental right to free speech” and undermining the ability of “untold numbers” of students from engaging in “off-campus online criticism on matters of public concern.” The majority, these dissenters wrote, had given schools the ability “to police their students’ Internet expression anytime and anywhere.” In a nice moment of pointed candor, one dissent also criticized the school board for punishing Bell’s speech instead of the purportedly predatory coaches he intended to expose.

Instead of responding to the dissenters’ most trenchant attacks, the majority shrugged. Sure, several judges wrote in concurrence, this seems unfair—but until the Supreme Court weighs in, what else are we supposed to do? Regrettably, they have a point. Federal and state courts across the country are totally, hopelessly fractured on the question of First Amendment protection for students’ online speech. Some federal appeals courts and state supreme courts protect it vigorously. Others barely protect it at all. Everybody seemed to agree a decade ago that the Supreme Court needed to weigh in. It still hasn’t, and so the 5th Circuit wandered its way into a terrible decision without contravening any precedent.

In almost every respect, Bell would seem to present the perfect vehicle through which the Supreme Court could bring uniformity to this area of First Amendment law. But there’s one final wrinkle: that whole rap thing. Just last term, the Supreme Court attempted to decide whether an adult’s vulgar, menacing rap lyrics, posted on Facebook, constituted a constitutionally unprotected “true threat.” But it punted, in a weirdly hazy opinion that suggested the justices were badly splintered on the merits. This time around, the justices may once again be hesitant to announce a broad First Amendment principle in a case centered around violent rap lyrics. (Bell’s song included lines like “going to get a pistol down your throat.”)

To allay that concern, a group of academics and rappers—including Killer Mike, Big Boi, and T.I.—filed an amicus brief urging to court to reverse the 5th Circuit’s decision. Rap music, the brief explains, is

a sophisticated form of poetry that has served as an important vehicle for social commentary and political protest, particularly among young men and women of color. By taking Bell’s song lyrics literally rather than as forms of artistic expression, both the school and the Fifth Circuit essentially delegitimized rap as an art form that is entitled to full protection under the Constitution.
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“Like all poets,” the brief notes, rappers “privilege figurative language” and “rely on exaggeration and hyperbole.” They employ “coarse language, explicit themes, and violent rhetoric” for emphasis. Bell’s lyrics, the brief insists, “are highly imitative of rap’s most prominent—and critically acclaimed—figures.” His song wasn’t a threat or a disruption; it was art.

Luckily, the Supreme Court can easily decide in Bell’s favor without understanding the nuances of rap—a tall order for the aging justices. Rap wrinkle aside, his case is really quite simple. Outside of school, on their own electronic devices, students have every right to denigrate coaches, or support drug legalization, or just blather inanely on the Internet. A majority of young people’s expression probably occurs online today; to let schools censor students’ online speech would be to more or less revoke the First Amendment for minors. The Supreme Court should agree to hear Bell’s case and hold decisively that, outside of school, online speech is free speech. Anything less would take a painful bite out of students’ First Amendment rights, converting the Internet from a medium of expression to a tool of censorship. 

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, follow us on Twitter and sign up for our weekly newsletter.