JAMES L. DENNIS, Circuit Judge:
This appeal raises a First Amendment challenge to a public high school student's suspension and transfer to alternative school for his off-campus posting on the Internet of a rap song criticizing, with vulgar and violent lyrics, two named male athletic coaches for sexually harassing female students at his school. The aspiring student rapper, Taylor Bell, composed the song off campus, recorded it at a professional studio unaffiliated with the school, and posted it on his Facebook page and on YouTube using his personal computer while at home. Bell had never before been charged with a serious school disciplinary violation. After the disciplinary action was imposed and affirmed by the Itawamba County School Board, Bell and his mother, Dora Bell, sued the School Board, its Superintendent, and the school's Principal, for violation of Bell's freedom of speech under the First Amendment and Dora Bell's substantive-due-process right to parental authority under the Fourteenth Amendment. Upon cross-motions for summary judgment, the district court rendered summary judgment for the School Board and its officials. The Bells appealed.
We reverse the district court's judgment in favor of the School Board against Taylor Bell and render summary judgment against the School Board in favor of Taylor Bell, awarding him nominal damages as prayed for, and other relief, for the Board's violation of his First Amendment right to freedom of speech. The summary-judgment evidence and materials establish that Bell composed and recorded his rap song completely off campus; that he used his home computer to post it on the Internet during non-school hours; and that the School Board did not demonstrate that Bell's song caused a substantial disruption of school work or discipline, or that school officials reasonably could have forecasted such a disruption. Otherwise, the district court's grant of summary judgment in favor of Defendants-Appellees against Dora Bell is affirmed, as well as the district court's summary judgment for the individual school officials.
In December 2010, Taylor Bell was an eighteen-year-old senior at Itawamba Agricultural High School with no record of any disciplinary problem aside from a single in-school suspension for tardiness. Bell is an aspiring rap
Bell admitted that he did not report these complaints to school authorities, but he explained that, in his view, the school officials generally ignored complaints by students about the conduct of teachers and coaches. During the Christmas holidays, while school was not in session, Bell composed and recorded a rap song about the female students' complaints at a professional recording studio unaffiliated with the school. Bell did not use any school resources in creating or recording the song. According to Bell, he believed that if he wrote and sang about the incidents, somebody would listen to his music and that it might help remedy the problem of teacher-on-student sexual harassment.
The song
In the first few days of January 2011,
Upon returning to school after the Christmas holidays, Bell testified that he never encouraged anyone at school — students or staff — to listen to the song. He further testified that he never played the song at school. No evidence was offered by the School Board to the contrary.
On January 6, 2011, Wildmon received a text message inquiring about the song from his wife, who had been informed of Bell's Facebook posting by a friend. In
The next day, Wiygul, McNeece, and the school district's attorney, Michele Floyd, questioned Bell about the song and its accusations. According to McNeece, she asked whether Bell meant that the teachers were having sexual relations with students, to which Bell responded that the lyrics meant the teachers were "messing with kids" — not having sexual relations with them. Bell testified, somewhat differently, that he told the school officials that "everything [he] said in the song was true." According to Bell, the school officials never suggested that Wildmon or Rainey felt threatened; instead, it seemed to Bell, the problem was that Wildmon felt as though "his name had been slandered." Bell testified that the officials never said that school had been disrupted as a result of the song. After speaking with McNeece and the other officials, Bell was sent home for the rest of that day, which was a Friday. Bell testified that he was not given a clear answer as to the specific reason why he was being sent home that day.
Due to snow, the school was closed until Friday of the following week. During that time, Bell created a more polished version of the song,
Bell then uploaded the final version of the song to YouTube from his home computer before classes resumed. Bell later explained that he created and posted this YouTube version of the song to help people, including school officials, "more clearly understand exactly what [he] was saying" in the song.
When school resumed on the following Friday, Bell returned to school. He testified that he could discern no disruption due to the song, nor did he tell anyone at school — students or staff — to listen to the song. However, around mid-day on that date, he was removed from class by the Assistant Principal, who informed him that he was suspended effective immediately, pending a disciplinary hearing. However, school officials did not require Bell to immediately vacate the school, and he remained in the school commons until his school bus arrived at day's end.
At the disciplinary/due process hearing before the school's Disciplinary Committee on January 26, 2011, the school district's attorney, Michele Floyd, stated that the purpose of the hearing was to determine
Bell was asked why he composed, recorded, and posted the song. He explained that he had written the rap song in response to the coaches' inappropriate behavior toward female students. He testified that he did not believe that telling the school authorities about the coaches' misconduct would have accomplished anything because school officials had failed to respond to other students' complaints in the past.
The Committee also questioned Bell about his intentions with respect to the song and whether the violent lyrics reflected an intention to harm the coaches. Bell conveyed that the song was a form of artistic expression meant to reflect his real-life experiences
At the disciplinary/due process hearing, no evidence was presented that the song had caused or had been forecasted to cause a material or substantial disruption to the school's work or discipline. In addition, there was no evidence presented indicating that any student or staff had listened to the song on the school campus, aside from the single instance when Wildmon had a student play the song for him on his cellphone in violation of school rules. Neither of the coaches named in the song attended or testified at the hearing, and no evidence was presented at the hearing that the coaches themselves perceived the song as an actual threat or disruption.
At the very end of the hearing, one of the Committee members provided the following admonition to Bell: "I would say censor your material.... Because you are good [at rapping], but everybody doesn't really listen to that kind of stuff. So, if you want to get [] your message out to everybody, make it where everybody will listen to it.... You know what I'm saying? Censor that stuff. Don't put all those bad words in it.... The bad words ain't making it better ... Sometimes you can make emotions with big words, not bad words. You know what I'm saying? ... Big words, not bad words. Think about that when you write your next piece."
The next day, Floyd sent Bell's mother a letter setting forth the Committee's decision to uphold the suspension already imposed on Bell, to place Bell in an alternative school for the remainder of the nine-week grading period, and to prohibit Bell from attending any school functions during that time. The letter stated that the Committee had concluded that whether Bell's song constituted a "threat to school district officials was vague."
The School Board affirmed the Disciplinary Committee's decision on February 7, 2011, which was memorialized in a letter sent to Dora Bell from Floyd on February 11, 2011. In that letter, Floyd stated: "As you are aware, [the Board] determined that Taylor Bell did threaten, harass and intimidate school employees in violation of School Board policy and Mississippi State
Taylor and Dora Bell filed this civil action under 42 U.S.C. § 1983 on February 24, 2011, in the United States District Court for the Northern District of Mississippi against the Itawamba County School Board, Superintendent McNeece (individually and in her official capacity), and Principal Wiygul (individually and in his official capacity), alleging that the defendants violated Taylor Bell's First Amendment right to freedom of speech by imposing school discipline on Bell for his off-campus composition, recording and Internet-posting of his rap song.
On March 10, 2011, the district court held a hearing on the preliminary-injunction motion. At the hearing, a number of different witnesses testified, including the two coaches named in the song. Rainey testified that he had not heard the song and felt it was "just a rap," not to be taken seriously, and that he felt that if he "let it go, it [would] probably just die down." However, he stated that the song had "affected" the way he "talk[ed] to kids," leading him to avoid interactions with students that might be interpreted as being inappropriate. For example, he indicated that he felt the song had affected his ability to act like a "parent figure" to students. He also testified that students had begun spending more time in the gym since the posting of the song, but he could not confirm this was a result of Bell's song. Rainey further testified that most of the talk amongst students has been about Bell's suspension and transfer to alternative school.
Wildmon testified that the song caused him to be more cautious around students and to avoid the appearance that he was behaving inappropriately toward them.
At the conclusion of the hearing, the district court denied the motion for the preliminary injunction as moot because Bell had only one day of alternative school remaining. Thereafter, following the parties' filing of cross-motions for summary judgment, the district court granted summary judgment in favor of the Defendants. The court concluded that, pursuant to Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the song's lyrics "in fact caused a material and/or substantial disruption at school and that it was reasonably foreseeable to school officials the song would cause such a disruption." Specifically, the court stated that Wildmon's and Rainey's testimony that the song "adversely affected" their teaching styles constituted an "actual disruption" to school activities. The court also concluded that it was "reasonably foreseeable" that the song, which "levies charges of serious sexual misconduct against two teachers using vulgar and threatening language and ... is published on Facebook.com to at least 1,300 `friends'... and the unlimited internet audience on YouTube.com, would cause a material and substantial disruption at school." The Bells timely appealed.
We review a district court's grant of summary judgment de novo, applying the same standard as the district court. See Mesa v. Prejean, 543 F.3d 264, 269 (5th Cir.2008). "[S]ummary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). "When parties file cross-motions for summary judgment, `we review each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party.'" Duval v. Northern Assur. Co. of Am., 722 F.3d 300, 303 (5th Cir.2013) (quoting Ford Motor Co. v. Tex. Dept. of Transp., 264 F.3d 493, 498 (5th Cir.2001)).
The principal issue presented by this case is whether a public high school violated the First Amendment by punishing a student for his off-campus speech, viz., his rap song posted on the Internet that criticized two male coaches for their improper conduct toward minor female students. This case does not involve speech that took place on school property or during a school-approved event off campus. Nevertheless, the district court, interpreting Tinker v. Des Moines Independent Community School District as applying directly to students' off-campus speech, as well as their on-campus speech, held that the School Board had authority to regulate and punish Bell's speech because the evidence established that his rap song had "in fact" substantially disrupted the school's work and discipline and that it was "reasonably
Contrary to the district court's conclusions, id. at 837-38, the Supreme Court's "student-speech" cases, including Tinker, do not address students' speech that occurs off campus and not at a school-approved event. The Court has not decided whether, or, if so, under what circumstances, a public school may regulate students' online, off-campus speech, and it is not necessary or appropriate for us to anticipate such a decision here. Even if Tinker were applicable to the instant case, the evidence does not support the conclusion, as required by Tinker, that Bell's Internet-posted song substantially disrupted the school's work and discipline or that school officials reasonably could have forecasted that it would do so. Moreover, we reject the School Board's alternative argument that the plainly rhetorical use of violent language contained in Bell's song falls within this court's narrow holding in Ponce v. Socorro Independent School District, 508 F.3d 765 (5th Cir.2007), that student speech threatening a Columbine-style mass school shooting was not protected by the First Amendment. Furthermore, in light of the rap's factual context, its lyrics' conditional nature, and the reactions of its listeners, we likewise reject the argument that Bell's rap song was excepted from First Amendment protections because it constituted a "true threat."
"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." Shanley v. Northeast Indep. Sch. Dist., 462 F.2d 960, 967 (5th Cir.1972). Nevertheless, this court "laid to rest" more than a half century ago "the notion that state authorities could subject students at public-supported educational institutions to whatever conditions the state wished." See id. (citing Dixon v. Ala. State Bd. of Educ., 294 F.2d 150 (5th Cir.1961)). "And of paramount importance is the constitutional imperative that school boards abide constitutional precepts: `The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures — Boards of Education not excepted.'" Id. (citing West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)). Thus, "[t]he authority possessed by the State to prescribe and enforce standards of conduct in its schools, although concededly very broad, must be exercised consistently with constitutional safeguards," including the dictates of the First Amendment. See Goss v. Lopez, 419 U.S. 565, 575, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).
Because speech is often provocative and challenging, and may strike at prejudices and preconceptions and have profoundly unsettling effects as it presses for the acceptance of an idea or cause, the First Amendment protects speech against restriction or punishment by the government. Cox v. Lousiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); see also Texas v. Johnson, 491 U.S. 397, 408-10, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); Hustler Magazine v. Falwell, 485 U.S. 46, 54-57, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); Cohen v. California, 403 U.S. 15,
Therefore, under Tinker, school officials may prohibit student speech and expression upon showing "facts which might reasonably have led school authorities to forecast [that the proscribed speech would cause] substantial disruption of or material interference with school activities." Id. at 514, 89 S.Ct. 733. School officials "must be able to show that [their] action[s] [were] caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Id. at 509, 89 S.Ct. 733. It is a school's burden to prove that its suppression of student speech conforms with this governing standard.
This court has further elaborated on Tinker's substantial-disruption standard. "Although school officials may prohibit speech based on a forecast that the prohibited speech will lead to a material disruption, the proscription cannot be based on the officials' mere expectation that the speech will cause such a disruption." AM. ex rel. McAllum v. Cash, 585 F.3d 214, 221 (5th Cir.2009). Further, school officials "must base their decisions `on fact, not intuition, that the expected disruption would probably result from the exercise of the constitutional right and that foregoing such exercise would tend to make the expected disruption substantially less probable or less severe.'" Id. at 221-22 (quoting Butts v. Dallas Indep. Sch. Dist., 436 F.2d 728, 731 (5th Cir.1971)); see also Butts, 436 F.2d at 732 ("[T]here must be some inquiry, and establishment of substantial fact, to buttress the determination."); Shanley, 462 F.2d at 970 ("[T]he board cannot rely on ipse dixit to demonstrate
Since Tinker, the Supreme Court has recognized that, even if on-campus speech or speech at school-approved events is non-disruptive within the meaning of Tinker, school officials may restrict that speech in a limited set of circumstances: if it is lewd or vulgar, Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), if it is school-sponsored and the restriction is "reasonably related to legitimate pedagogical concerns," Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), or if it is reasonably viewed as promoting the use of illegal drugs, Morse v. Frederick, 551 U.S. 393, 403, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007). However, in all of these cases, the speech at issue occurred on campus or at a school-approved event where the school's conduct rules expressly applied. Moreover, members of the Court have taken great pains to emphasize that these exceptions to the Tinker "substantial-disruption" test are narrowly confined and do not provide school officials with broad authority to invoke the "special characteristics of the school environment" in order to circumvent their burden of satisfying the Tinker test in factual scenarios that do not fit within the exceptions to Tinker established by Fraser, Hazelwood, and Morse. See, e.g., Morse, 551 U.S. at 422-23, 127 S.Ct. 2618 (Alito, J., concurring) ("I join the opinion of the Court on the understanding that (1) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as `the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'") (internal citation omitted).
Contrary to the district court's conclusion,
Furthermore, even if we were to credit the School Board's unsupported assertion that it indeed forecasted a disruption as a result of Bell's song,
As we have emphasized, the facts simply do not support a conclusion that Bell's song led to a substantial disruption of school operations or that school officials reasonably could have forecasted such a disruption. Nevertheless, in support of its argument that the School Board acted in accordance with Tinker, the dissent relies upon the School Board's policy of classifying threats, harassment, and intimidation of teachers as a "severe disruption."
The School Board alternatively and erroneously attempts to invoke this court's decision in Ponce v. Socorro Independent School District, 508 F.3d 765 (5th Cir. 2007), in arguing that Bell's off-campus, but on-line, rap was not protected by the First Amendment. In Ponce, this court analogized to the Supreme Court's decision
Reading Justice Alito's concurring opinion, in which Justice Kennedy joined, as controlling in Morse, we recognized that Morse holds only that "speech advocating a harm that is demonstrably grave and that derives that gravity from the `special danger' to the physical safety of students arising from the school environment is unprotected." Id. at 770. However, we observed that "because this is a content-based regulation, the [Alito] concurring opinion is at pains to point out that the reasoning of the court cannot be extended to other kinds of regulations of content, for permitting such content-based regulation is indeed at `the far reaches of what the First Amendment permits.'" Id. (quoting Morse, 551 U.S. at 425, 127 S.Ct. 2618
Ponce therefore narrowly extends Morse in holding that the Tinker analysis does not apply to speech brought to campus that "gravely and uniquely threatens violence, including massive deaths, to the school population as a whole." Id. at 772. At the same time, the Ponce opinion explicitly recognizes the continued applicability of the Tinker substantial-disruption test for most other types of on-campus speech. Id. at 770. Furthermore, Ponce also recognizes that, according to Justice Alito's controlling concurring opinion, Morse does not expand schools' authority to restrict on-campus speech on social or political matters. Id. at 769-70.
Applying these principles to the instant case, Bell's song cannot be considered to fall within the narrow exception to Tinker recognized by this court in Ponce, thus depriving his speech of First Amendment protection. As an initial matter, Ponce did not involve student speech occurring entirely off-campus; rather, the student in Ponce brought his threatening diary to campus and showed its contents to a classmate. Id. at 766. More importantly, however, the Ponce decision explicitly pivoted on the particularized and unique threat of grave harm of mass school shootings posed by that student's private writings. Id. at 771. Indeed, the student's notebook graphically detailed the group's "plan to commit a `[C]olumbine shooting' attack" at the student's school, as well as other area schools. Id. In holding such speech unprotected by the First Amendment, the court in Ponce emphasized that its decision was based on the fact that "the speech in question... is not about violence aimed at specific persons, but of violence bearing the stamp of a well-known pattern of recent historic activity: mass, systematic school-shootings in the style that has become painfully familiar in the United States." Id. at 770-71. In sharp contrast, Bell's song contains violent imagery typical of the hyperbolic rap genre that is "aimed at specific persons," rather than "bearing the stamp of ... mass, systematic school-shootings." Id. Furthermore, the song amounts only to a rhetorical threat — not a genuine one — and does not come close to the catastrophic facts threatened in Ponce, which Judge Jolly emphasized were evocative of a "Columbine" or "Jonesboro" — style school attack. Id. at 771. Indeed, Bell testified that he did not intend to threaten the two coaches with his rap song; rather, the song was meant to be an artistic expression that reflected Bell's real-life experiences and to raise awareness of an important issue of concern that he felt would be ignored by school officials.
The School Board's additional argument that Bell's rap song falls within the "true threat" exception to the First Amendment is likewise meritless. As explained infra, Bell's rap was not a plainspoken threat delivered directly, privately, or seriously to the coaches but, rather, was a form of music or art broadcast in a public media to critique the coaches' misconduct and also in furtherance of Bell's musical ambitions. Moreover, Bell's rap was not an unconditional threat that Bell himself would physically harm the coaches; at most, the song amounted to a conditional warning to them of possible harm from the female students' family members if they continued to harass the young women. Finally, as evidenced by the reactions of the listeners themselves, there was no reasonable or objective ground for the coaches to fear that Bell personally would harm them.
The protections that the First Amendment affords speech and expressive conduct are not absolute. Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). The Supreme Court has long recognized that the government may regulate certain unprotected categories of expression consistent with the Constitution. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). One such category of unprotected speech is that which constitutes a "true threat." Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). "`True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Black, 538 U.S. at 359, 123 S.Ct. 1536 (citing Watts, 394 U.S. at 708, 89 S.Ct. 1399).
In Watts, the petitioner was convicted of violating a 1917 statute which prohibits a person from "knowingly and willfully" making "any threat to take the life of or to inflict bodily harm upon the President of the United States." Id. (citing 18 U.S.C. § 871(a)). As the Watts Court explained:
Id. at 705-06, 89 S.Ct. 1399 (emphasis added).
On petition for writ of certiorari, the Supreme Court reversed, observing that "whatever the `willfullness' requirement [of the statute] implies, the statute initially requires the Government to prove a true `threat.'" Id. at 708, 89 S.Ct. 1399. The Court held that the "kind of political hyperbole" deployed by the petitioner could not qualify as a "true threat" in light of the "`profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'" Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). In this regard, the Court observed that "[t]he language of the political arena, like the language used in labor disputes ... is often vituperative, abusive, and inexact." Id. (citing Linn v. United Plant Guard Workers of America, 383 U.S. 53, 58, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966)). The Court concluded: "We agree with petitioner that his only offense here was `a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise." Id.
Applying the factors identified as instructive by the Court in Watts — i.e., the context and manner of the speech, its conditional nature, and the listeners' reactions, it is clear that the rap song that Bell recorded in a professional studio and subsequently posted on the Internet in protest of what he perceived as an injustice occurring at his high school did not constitute a "true threat."
First, with regard to context, it is important to consider — albeit not ultimately dispositive — that the purported "threats" were contained in a rap song, a musical genre that, like other art forms, has its own unique artistic conventions.
Equally important to the context of Bell's rap is the fact that it was broadcast publicly over the Internet and not conveyed privately or directly to the coaches. Courts have recognized that statements communicated directly to the target are much more likely to constitute true threats than those, as here, communicated as part of a public protest.
Likewise, in the instant case, the overall context reveals that a reasonable listener would be able to distinguish genuine threats of perpetrating school violence, like those in Ponce, from the purely rhetorical use of violent language contained in the lyrics of an aspiring rap musician who publicly broadcast his song, rather than privately communicated it, in an effort to (i) raise awareness of an important issue of public concern, and (ii) attract the attention of listeners and record labels in furtherance of his musical ambitions.
Second, the purported "threats" contained in the song are conditional in nature, as demonstrated by both the lyrics themselves and the school officials' interpretation of them. The language referencing "capping" Wildmon is conditional by its very terms: "Middle fingers up if you want to cap that nigga" (emphasis added). Moreover, one of the Disciplinary Committee members agreed with Bell that the song's lyrics regarding putting a pistol down someone's mouth conveyed that "if [the teachers] don't stop what they're doing then a parent kinda is gonna do that, not really him [i.e., Bell]."
Third and finally, the reactions of the listeners themselves undermine the notion that a reasonable listener would view the song as a threat. For example, the Facebook screen shot indicates that Bell's Facebook "friends" who commented on the song did not view it as a threat by Bell against the coaches but rather as the product of Bell's artistic aspirations (e.g., "Hey, don't forget me when you're famous" and "Lol ... Mane Im tellin you cuz ... been tellin you since we was little ... keep fuckin with it man you got all the talent in the world ..."). Moreover, the Disciplinary Committee could not even conclude whether Bell's song constituted a definitive threat, instead finding the issue "vague," and Coach Rainey himself testified that he viewed the song as "just a rap" rather than an actual threat. Even Coach Wildmon, who testified that he took the song "literally" and felt "scared," did not indicate whether he actually feared Bell, rather than the possibility that one of the female students' family members might harm him in light of the song's revelations.
As the foregoing demonstrates, the overall factual context reveals that neither the coaches, nor school officials, could have reasonably interpreted Bell's song as a serious expression of an intent to cause harm. Rather, we conclude that the violent language contained in the lyrics was clearly rhetorical in nature, and we therefore reject the argument that Bell's song constituted a "true threat" of violence.
In conclusion, we do not decide whether the Tinker "substantial-disruption" test can be applied to a student's rap song that he composed, recorded and posted on the Internet while he was off campus during non-school hours. Rather, we decide only that, even assuming arguendo the School Board could invoke Tinker in this case, it would not afford the School Board a defense for its violation of Bell's First Amendment rights because the evidence does not support a finding, as would be required by Tinker, that Bell's song either substantially disrupted the school's work or discipline or that the school officials reasonably could have forecasted such a disruption. With respect to the School Board's alternative argument, we conclude that Bell's song did not "gravely and uniquely threaten violence" to the school population such to justify discipline pursuant to this court's narrow holding in Ponce that student speech that threatened a Columbine-style attack on a school was not protected by the First Amendment. We also conclude that Bell's speech 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.
For these reasons, the district court's judgment is REVERSED IN PART, and judgment is RENDERED in favor of Taylor Bell against the School Board on his First Amendment claim. The case is REMANDED, and the district court is DIRECTED to award Bell nominal damages, court costs, appropriate attorneys' fees,
RHESA HAWKINS BARKSDALE, Circuit Judge, concurring in part and dissenting in part.
The majority's long-overdue opinion (oral argument was held over two years ago, on 3 December 2012), reviews cross-motions for summary judgment. I concur, of course, in the majority's holding that the substantive-due-process claim by Taylor Bell's mother is waived and that qualified immunity precludes liability against the superintendent and principal in their individual capacities, leaving at issue only Bell's First Amendment claim against the school board. Maj. Opn. at 2 n. 1. I must dissent, however, from the majority's both vacating the summary judgment for the school board on that claim and rendering summary judgment for Bell on it. (Assuming arguendo the school board is not entitled to summary judgment, Bell is not entitled to it either.) Regarding the First Amendment claim, except for the intentionally published threats to, and harassment and intimidation of, two teachers, which the school board found justified disciplinary action against Bell, I will not take issue with the majority's categorizing at 299, in note 46, the miniscule balance of Bell's incredibly violent, vulgar, and profane rap recording as involving "a matter of public concern".
"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." Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1064 (9th Cir.2013). In that regard, school administrators must be afforded wide latitude in proactively addressing language that reasonably could be interpreted as a threat, harassment, or intimidation against members of the school community.
"Experience shows that schools can be places of special danger." Morse v. Frederick, 551 U.S. 393, 424, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (Alito, J., concurring). For example, 11 days after oral argument in our court for this appeal on 3 December 2012, a 16-year-old entered Sandy Hook Elementary School, in Newtown, Connecticut, and shot and killed 20 school children and six staff members, including the principal, before killing himself. In the two years since the Sandy Hook shooting, in the United States there have been 93 school shootings (defined as instances of the discharge of a firearm on campus) and 40 major school shootings (defined as an incident where the shooter was linked to the school and at least one person was shot on campus), including the most recent incidents at Florida State University, where a former student opened fire on students in the library, and at Marysville-Pilchuck High School outside Seattle, Washington, where a student killed four fellow students, before killing himself. Greg Botelho, Faith Karimi, & Nick Valencia, Gunman opens fire in Florida State University library; 3 wounded, CNN, 21 Nov. 2014, available at http://www.cnn.com/2014/11/20/us/fsu-incident/; Faith Karimi & Joe Sutton, 4th Victim dies after shooting at high school cafeteria in Washington state, CNN, 8 Nov. 2014, available at http://www.cnn. com/2014/11/08/us/washington-school-shooting/index.html; Matt Kreamer, 2 dead, 4 wounded in shooting at Marysville-Pilchuck High School, The Seattle Times, 24 Oct. 2014, available at http://
Tragically, this post-oral-argument school-related violence is consistent with the increasing school-related violence prior to the date of oral argument here. From 19 February 1997 (the day a 16-year old shot and killed a student and principal, and injured two others in Bethel, Alaska) to the date the school board found against Bell on 7 February 2011, there were 171 school shootings (including those in Pearl, Mississippi, Littleton, Colorado (Columbine), and Blacksburg, Virginia (Virginia Tech)). Major School Shootings in the United States Since 1997, Brady Campaign to Prevent Gun Violence (17 Dec. 2012), http://gunviolence.issuelab.org/ resource/major_school_schootings_in_the_United_States_since_1997. For example, on 6 February 2011, the day before the school-board meeting concerning Bell, one student was killed and 11 others were injured during a shooting at Youngstown State University in Ohio. Id.
As evidence of this disturbing trend of school violence, each State in our circuit has passed legislation addressing such violence since the Sandy Hook shooting. See Nathan Koppel, More Texas Schools Allow Armed Employees, Wall Street Journal, 25 Aug. 2014, available at http://online.wsj. com/articles/more-texas-schools-allow-armed-employees-140 8986620. Louisiana has passed legislation changing/expanding emergency preparedness drills; Mississippi and Texas have passed legislation allowing the addition of school police or security officers; and Texas has also passed legislation allowing certain personnel to carry firearms on school grounds, and authorizing state-funded school safety centers. Id. Symptomatic of how commonplace violence at schools has become, six States "mandate
Meanwhile, nearly all teenagers use the Internet, with the majority of them accessing it and social-networking websites through mobile devices. Amanda Lenhart, Presentation, PewResearch Internet Project, Teens & Technology: Understanding the Digital Landscape (25 Feb. 2014), http://www.pewinternet.org/2014/02/25/ teens-technology-understanding-the-digital-landscape/ (explaining 95 percent of teenagers use the Internet and 74 percent of teenagers between 12 and 17 years old are mobile Internet users); see also Amanda Lenhart, Presentation PewResearch Internet Project, It Ain't Heavy, It's My Smartphone: American Teens & The Infiltration Of Mobility Into Their Computing Lives (14 June 2012), http://www. pewinternet.org/2012/06/14/it-aint-heavy-its-my-smartphone-american-teens-and-the-infiltration-of-mobility-into-their-computing-lives/ (explaining, as of 2012, 80 percent of teenagers used social-networking websites). Commonly used social-media websites include Facebook (provides a litany of social services such as "news feed", personalized "profile" and instant-messaging), Twitter (allows users to "tweet" statements up to 140 characters, and view others'"tweets", in personalized feed), Instagram (allows users to post, and view others', pictures, in personalized
"[A] page of history is worth a volume of logic". N.Y. Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921) (Holmes, J.); see also Oliver Wendell Holmes, Jr., The Common Law 5 (1881) ("The life of the law has not been logic: it has been experience."). In the light of such use of social media by students and the oft-repeated school violence before and after the school board's finding against Bell, school administrators must remain vigilant as they seek to prevent violence against students and faculty. As part of this vigilance, they must take seriously any statements by students resembling threats of violence, as well as intimidation and harassment by them. Long ago, Justice Jackson warned: "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact". Terminiello v. City of Chicago, 337 U.S. 1, 37, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) (Jackson, J., dissenting). That warning applies to the result-driven majority opinion.
Throughout its opinion, the majority attempts to camouflage Bell's threats, intimidation, and harassment under the guise of "rap music". For this red herring, in classifying Bell as an "aspiring rap musician", e.g., at 282, 301, 301, and note 21 at 285, the majority hopes characterizations and euphemistic descriptions will distract from the patent seriousness of Bell's aggressive and dangerous comments. Whether Bell was "rapping", singing country music, or reading poetry is immaterial; he threatened, intimidated, and harassed two teachers. At issue is the message, not the medium.
Regrettably, although the majority pays lip service to the increasing danger in schools, it then sanctions the threats, harassment, and intimidation in the rap recording, including by turning its back on the deference that must be accorded school administrators in dealing with such serious matters. Among other threatening, harassing, and intimidating statements, Bell's rap recording includes: "I'm going to hit you with my [R]ueger [sic]" (referring to a firearm manufactured by Sturm, Ruger & Co.), "going to get a pistol down your mouth /Boww" (or "Pow"), and "middle fingers up if you want to cap that nigga" ("cap" is slang for "shoot"). To hold, as the majority does, that these and similar statements in the rap recording are protected speech is beyond comprehension. With due deference, the majority's holding is absurd. This cannot be the law.
A correct recitation of the underlying facts, from the summary-judgment record, is especially important for this appeal. The majority opinion fails in that regard. For example, it often states that Bell "testified", without specifying whether it was during the disciplinary-committee hearing (at which his informal comments were not under oath) or at the hearing on his request for a preliminary injunction. E.g., Maj. Op. at 282, 285, 286, and in note 3 at 282.
Additionally, although the majority claims at 285, in note 21, that there is no evidence identifying Bell's Facebook "friends", or whether any attended his school, when viewing a person's profile, Facebook shows ten randomly selected friends. In this instance, three of those friends were self-identified members of the Itawamba school district.
The following school day, on 6 January, Coach W. received a text message from his wife, asking about the rap recording; she had learned about it from a friend. The coach listened to the rap recording at school, using a student's cellular telephone, which had access to the Internet. The coach immediately reported the rap recording to the school's principal, Wiygul, who then informed McNeece, the school-district superintendent.
On 7 January, Wiygul, McNeece, and Floyd (the school-board attorney) questioned Bell about the rap recording and its accusations, after which Bell was sent home for the remainder of the day. Because of snow days, the school was closed through 13 January.
During his time away from school, and to give far wider dissemination of his rap recording, Bell created a finalized version of it (adding commentary and a picture slideshow), and uploaded it to YouTube, again making the rap recording available to the public.
Bell returned to school on 14 January, but was removed from class midday by the assistant principal and told he was suspended, pending a disciplinary-committee hearing (school officials permitted him to remain in the school commons until the school bus he rode arrived at the end of the day). By letter that same day to Bell's mother, the school-district superintendent (McNeece) informed her a hearing would be held on 19 January to consider disciplinary action for Bell's "alleged threatening intimidation and/or harassment of one or more school teachers". In the letter, McNeece explained Bell's suspension would continue until further notification, and informed his mother of the possible actions the school board could take.
In an 18 January telephone conversation with the school-board attorney, Bell's mother requested Bell's hearing be continued until 26 January. The school-board attorney re-set the hearing for the requested date.
The disciplinary-committee hearing was held 26 January. Although there is no transcript of the hearing, the recording of it is included in the summary-judgment record. The information contained in the disciplinary-committee-hearing recording more than justified the subsequent action taken by the school board. The disciplinary-committee-hearing recording is the critical evidence at hand, making it necessary to describe the contained information in great detail.
The hearing was facilitated by Floyd, the school-board attorney; three disciplinary-committee members were present, as well as the principal, Bell, his mother, and their attorney. The school-board attorney began by addressing the informal nature of the hearing. And, throughout the hearing, the school-board attorney emphasized
Wiygul, the principal, stated: Coach W. came into his office, explaining "several kids" were talking about a rap recording Bell had posted on Facebook, which was derogatory toward him and another coach, and accused them of inappropriate conduct; the following morning, Bell was brought into a meeting and asked about his accusations, but would not talk about them; at that time, school officials decided it was best to send Bell home for the remainder of the day; and Bell came to school the next school day (which, due to snow, was the following Friday), but the assistant principal told him to leave as he was suspended pending a hearing.
After Wiygul spoke, the YouTube version of the rap recording was played at the hearing.
Bell and his mother then stated that he was not told of the suspension until Friday (14 January), when the assistant principal saw Bell and contacted McNeece, the school-district superintendent, asking her what to do about Bell's presence. According to them, McNeece first instructed the assistant principal that Bell could stay, but then instructed him to tell Bell to leave and not come back.
Bell's attorney then began asking who decided on the temporary suspension and the reason for that decision. Floyd, the school-board attorney, redirected the discussion, explaining the purpose of the hearing was to determine whether the suspension should be upheld, and whether the allegations that Bell threatened, harassed, and intimidated teachers were correct.
One of the committee members asked Bell if he had spoken to anyone at the school about the accusations he made in the rap recording. Bell explained he did not speak to anyone about those accusations, but instead made the rap recording because he knew people were "gonna listen to it, somebody's gonna listen to it". (Several times during the hearing Bell acknowledged he posted the rap recording to Facebook because he knew it would be viewed and heard by students. Moreover, he explained that at least 2,000 people contacted him about the rap recording in response to the Facebook and YouTube postings.)
Although Bell's attorney tried to begin discussing the misconduct of the coaches alleged in the rap recording, the school-board attorney again redirected the conversation to the purpose of the hearing, which was, as she explained, to discuss the "comments made ... the `you've f — ed with the wrong one/going to get a pistol down your mouth/POW [because] those are threats to a teacher".
Bell responded by stating, "Well that ain't really what I said", and then provided what he described as the "original copy". (It is unclear from the disciplinary-committee-hearing recording, or other parts of the summary-judgment record, which copy of the rap item Bell provided. There are three written versions of the rap item in the record. The first was submitted as an exhibit by the school board with its response in opposition to Bell's motion for a preliminary injunction and used the word "ruler", instead of "rueger [sic]", following "I'm going to hit you with my ...". The other two versions were exhibits introduced
Bell explained he did not mean he was going to shoot anyone, but that he was only "foreshadowing something that might happen". Nevertheless, Bell acknowledged that "certain statements" were made to his mother that "`put a pistol down your mouth'[,] that is a direct threat". Floyd, the school-board attorney, clarified for the record, and the mother agreed, that no one at the hearing made those statements to Bell's mother. Rather, those statements were made "outside the school setting".
One of the committee members asked Bell why he had posted a new version of the rap recording on YouTube after school officials had approached him about his posting the rap recording on Facebook. Bell gave a few (and somewhat conflicting) explanations: the version he posted on Facebook was a raw copy, so he wanted a finalized version posted on YouTube; the Facebook version was posted for his friends and "people locally" to hear, whereas the YouTube version was for music labels to hear; and he posted the You-Tube version with a slideshow of pictures to help better explain what the rap recording was about because people had been asking him about it (the Facebook version only included a brief explanation of the backstory in the caption to the rap recording).
Near the end of the disciplinary-committee hearing, Bell explained again that: he put the rap 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 rap recording and did not intend the rap recording to be a threat, he knew students would listen to the rap recording, later stating "students all have Facebook".
Throughout the hearing, the school-board attorney and committee members were very considerate toward Bell and counseled him on what appropriate action he could have taken. (Amazingly, one member even told Bell that he "really can rap" and explained there would have been no problem with the rap recording or its vulgar language if it had not included threats against school employees. The majority claims at 288, in note 29, that this committee member did not characterize Bell's statements as "threatening", and only admonished Bell for his word choice, "thus providing Bell poetic or artistic advice". Given that the disciplinary committee found Bell harassed and intimidated the coaches, while finding it was vague whether he threatened them, this distinction by the majority is wide of the mark. It is consistent with the majority's going to any extreme to avoid the obvious: that Bell threatened, intimidated, and harassed two teachers.) At the close of the disciplinary-committee hearing, the school-board attorney emphasized, and Bell's attorney did not contest, that by posting the rap recording to an open Facebook page, Bell knew anyone could hear the rap recording.
By 27 January letter to Bell's mother, the school-board attorney advised: the disciplinary
By 1 February letter, the school-board attorney confirmed to Bell's attorney the content of their 31 January conversation, during which Bell's attorney had stated: Bell wished to appeal the disciplinary-committee's recommendation; and Bell and his mother were expected to appear before the board on 7 February without counsel, because their attorney was unable to attend due to a scheduling conflict. The letter advised that, despite the recommendation that Bell begin alternative school on 27 January, he had not attended any classes and explained these absences would add to the length of time before he would be allowed to return to a regular classroom.
The only document in the record from the 7 February school-board meeting is the minutes of that meeting. They 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." Subsequently, at the 10 March preliminary-injunction hearing, the school-board attorney testified that, at the 7 February school-board meeting, the board listened to a recitation of Bell's rap item.
The majority at 289, note 32, states the "record is unclear regarding the exact evidence presented to the School Board", but that the "Board's decision apparently was based on the same audio-recording of Bell's song heard by the Disciplinary Committee". The record is not "unclear". During the preliminary injunction hearing, the school-district's attorney asked McNeece, the school-district superintendent, "[T]he two lyrics that I've read into the record and these witnesses have read into the record, were presented to the school board, correct?", to which McNeece replied, "That's correct." Portions of the rap item read into the record include: "[G]oing to get a pistol down your mouth" and "Middle fingers up, if you want to cap that nigga". Therefore, it is not unclear what the school board considered. Furthermore, at the beginning of the preliminary-injunction hearing, Bell's attorney submitted as evidence the transcription of the rap item. As discussed supra, at that hearing, the school board accepted this transcription as "the correct version".
By 11 February letter to Bell's mother, the school-board attorney explained that, contrary to the earlier-described lesser findings of the disciplinary committee (Bell had harassed and intimidated two teachers; but, whether he had made a threat was "vague"), the school board had determined: "Bell did threaten, harass and intimidate school employees in violation of School Board policy and Mississippi State Law". (According to the written school policy, "[h]arassment, intimidation, or threatening other students and/or teachers" constitutes a "severe disruption".)
On 24 February, Bell and his mother filed this action, claiming the school board, superintendent, and principal, inter alia, violated Bell's First Amendment rights. Plaintiffs moved for a preliminary injunction on 2 March, seeking Bell's 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 that all references to this incident be expunged from his school records.
For the earlier-referenced 10 March hearing on the preliminary-injunction request, Bell included four affidavits from students at his school, containing allegations against the coaches. (The affidavits were not considered by the district court during the preliminary-injunction hearing.)
At the hearing, the superintendent testified that she had attended the school-board meeting at which Bell's rap item was presented; and that there was a foreseeable danger of substantial disruption at the school as a result of the rap recording.
Both coaches accused and threatened in the rap recording testified at the preliminary-injunction hearing; each explained the rap recording affected their work at the school. Coach R. testified that, subsequent to the publication of the rap recording, students began spending more time in the gym, despite teachers telling them to remain in classrooms; and Coach W. testified that he interpreted the words in the rap recording literally and was frightened. (The majority at 295-96, in note 41, disputes the nature of the testimony by claiming the only evidence of a substantial disruption was the coaches' alteration of their teaching styles "to avoid any appearance of impropriety", and, at 302, seeks to diminish the importance of the testimony by stating Coach W. "did not indicate whether he actually feared Bell, rather than the possibility that one of the female students' family members might harm him in light of the song's revelations". This is incorrect. For example, as the majority admits at 289-90, Coach W. testified that, in addition to being frightened by the rap recording, he did not allow the members of the school basketball team he coached to leave after games until he was in his vehicle. Moreover, Coach W.'s testimony provides valuable insight into how an objectively reasonable person would interpret the threats in the recording.) At the hearing, the district court refused to entertain questioning on whether the allegations against the two coaches were true. After finding Bell's last day of alternative school would be the next day, 11 March, the district court ruled the issue was moot and denied the preliminary injunction.
On cross-motions for summary judgment, the district court denied Bell's motion and granted defendants' (the school board, superintendent, and principal). In doing so, it ruled the rap recording constituted "harassment and intimidation of teachers and possible threats against teachers and threatened, harassed, and intimidated school employees". Bell v. Itawamba Cnty. Sch. Bd., No. 1-11-CV-56, 859 F.Supp.2d 834, order at 9 (N.D. Miss. 15 Mar. 2012). The court also held 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 held: (1) the individual defendants were entitled to qualified immunity; and (2) Bell's mother could not show a violation of her Fourteenth Amendment rights. Id. at 12.
As discussed above, the majority affirms these last two holdings. I dissent only from its (1) vacating the summary judgment granted the school board on Bell's First Amendment claim and (2) rendering judgment for him on that claim. The judgment awarded the school board on the First Amendment claim should be affirmed. In the alternative, that claim should be remanded to district court for trial.
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) (citation omitted). Summary judgment is proper when "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) (internal citation and quotation marks omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
In determining whether to grant summary judgment, the court, in its de novo review, views the evidence in the light most favorable to the non-movant. E.g., Dameware Dev., LLC v. Am. Gen. Life Ins. Co., 688 F.3d 203, 206-07 (5th Cir. 2012) (citation omitted). Consistent with that, when, as here, cross-motions for summary judgment are in play, "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)). "Although on summary judgment the record is reviewed de novo, this court ... will not consider evidence... not presented to the district court", but "we may affirm the ... decision on any basis presented to the district court". Am. Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 896 (5th Cir.2013) (citations and internal quotation marks omitted).
The summary-judgment record at hand includes, inter alia: (1) affidavits of four students regarding the coaches' supposed conduct; (2) screenshots of Bell's Facebook page; (3) a transcription of the rap item submitted by the school board ("ruler" version); (4) a transcription of the rap item submitted by Bell ("rueger [sic]" 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 disciplinary-committee's findings; (10) the disciplinary-committee-hearing minutes and the all-important CD recording of that hearing; (11) the school-board attorney's letter to Bell's mother informing her of the disciplinary-committee's findings; (12) the school-board-hearing minutes; (13) the school-district 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.
For obvious reasons, in analyzing school-board decisions, deference must be accorded the school-board's determinations. Callahan v. Price, 505 F.2d 83, 87 (5th Cir. 1974); see also Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) ("It is not the role of the federal courts to set aside decisions of school administrators
It is well-established that students do not forfeit their First Amendment rights to freedom of speech and expression when they enter school. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The First Amendment does not, however, guarantee students absolute rights to such freedoms. 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, 39 S.Ct. 247, 63 L.Ed. 470 (1919) (citation omitted). Bell's rap recording, through which the school board found he threatened, intimidated, and harassed two members of the faculty at his high school, was intentionally disseminated through Facebook and YouTube. Accordingly, on two bases (true threat and substantial disruption), the threatening, harassing, and intimidating portions of Bell's incredibly violent, vulgar, and profane rap recording do not enjoy the protection of the First Amendment.
The school-board's decision should be upheld under the "true threat" analysis originally introduced in Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). Although the First Amendment generally protects speech, "the government can proscribe a true threat of violence without offending the First Amendment". Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 616 (5th Cir.2004). "[A] prohibition on true threats `protect[s] individuals from the fear of violence' and `from the disruption that fear engenders,' in addition to protecting people `from the possibility that the threatened violence will occur'". Virginia v. Black, 538 U.S. 343, 360, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (alteration in original) (quoting R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 388, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)). "Speech is a true threat and therefore unprotected if an objectively reasonable person would interpret the speech as a serious expression of an intent to cause a present or future harm." Porter, 393 F.3d at 616 (citation and internal quotation marks omitted). Moreover, intimidation is a form of true threat. See Black, 538 U.S. at 360, 123 S.Ct. 1536 ("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.").
The true-threat analysis was further explained in Doe v. Pulaski County Special School District, which provided a two-step test: (1) whether the speaker "intentionally or knowingly communicated the statement in question to someone" including "a third party"; and (2) "whether a reasonable person would interpret the purported threat as a serious expression of an intent to cause a present or future harm". 306 F.3d 616, 622, 624 (8th Cir.2002) (en banc). Our court affirmatively cited Doe as an "illustrative application" of the true-threat
Regarding the first step, and contrary to the position taken by the majority, there is no genuine dispute that Bell intentionally and knowingly communicated the rap recording in a way that it would reach the school. Bell first posted the rap recording to his open Facebook account, accessible to anyone with a Facebook account, and not limited to his Facebook 1,380-member "friend" group. At the disciplinary-committee hearing, he stated he knew "students and stuff would hear it because ... students all have Facebook". And, Bell posted a revised version of the rap recording to YouTube, which offers unlimited access. When asked at the disciplinary-committee hearing why he did not discuss his allegations with the school principal, he stated that such conversations would have no impact, but "[i]f I do the song, they're going to listen to it". It is undisputed that Bell intentionally targeted the rap recording to students and administrators alike, hoping the latter would take action after hearing the recording.
The next question in this two-step analysis is whether a reasonable person would view the threatening speech as "an intent to cause a present or future threat". Doe, 306 F.3d at 622. This is an issue of law. See generally id. at 616-26 (rendering judgment as a matter of law, holding as objectively reasonable the determination that the threat constituted a "true threat").
As stated, there can be no question that an objectively reasonable person would interpret the rap recording as a true threat. When a student intentionally and publicly states that an educator will be "capped" (shot), have a pistol put down his mouth, and hit with a pistol, an objectively reasonable school administrator may interpret these words to constitute a true threat. "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." Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 772 (5th Cir.2007).
Supporting how an objectively reasonable person would view the comments, Coach W. testified at the preliminary-injunction hearing that he took the rap recording "literally", felt "scared", reported the rap recording to the principal immediately upon hearing it, and took extra safety measures after hearing the rap recording. Consistent with that testimony, Bell's expert witness in the field of rapping testified at the preliminary-injunction hearing that, if a rap item names an individual directly preceding a threat, "it would definitely be cause for conversation with the [rapper], absolutely". And, as discussed earlier, Bell's mother even received comments from community members (outside the school setting) who had heard the rap recording and believed the language about putting a pistol down someone's mouth would constitute a direct threat. After listening to the statements in the rap recording, the school board determined unanimously "that [Bell] did threaten, harass, and intimidate school employees". Therefore, the rap recording was understood, both subjectively by one of the
Bell implores this court to interpret his threats as simply artistic expression. The majority, likewise, contends at 300 and 301 that, because Bell's threats were embedded in some protected speech, his threats were at worst hyperbolic or metaphoric and that such speech does not constitute a true threat. But the nature of the speech and Bell's own admissions belie this contention. As discussed supra, in the written version of the rap recording relied upon by Bell, he threatened, inter alia, to "hit [a coach] with my rueger [sic]", referring, as noted supra, to the firearms manufacturer Sturm, Ruger & Co. (Emphasis added.) In the YouTube version, Bell also stated he was writing about "real-life experience". By his own admission, then, not all of the rap recording was meant to be rhetorical; instead, Bell urges only the portions involving threats, harassment, and intimidation fit that category.
Regardless, under the true-threat analysis, whether Bell intended the rap recording to be taken as a threat is immaterial. Porter, 393 F.3d at 616. The same is true for whether he was capable of carrying out the threat. Id. at 616 n. 25 (discussing Doe's instruction to disregard subjective ability to carry out threat). The school board determined unanimously that the rap recording threatened, harassed, and intimidated the coaches. Accordingly, Bell was suspended for Offense 16 (threatening, harassing, and intimidating) of the severe-disruptions section of the school-district disciplinary policy, and in violation of state law. (Two potential state-law examples, among many, are Mississippi Code Annotated § 37-11-21 (making it a misdemeanor to abuse teachers) and § 97-45-17 (making it a felony to post messages through electronic media for the purpose of causing an injury to another).)
Incredibly, the majority seems to believe that making such threats in a rap recording obscures the fact that Bell's words could reasonably be considered to place two members of the school's faculty in danger, and that taking disciplinary action against him for such conduct violates his First Amendment rights. But, again, "rapping" has nothing to do with this; a student who speaks the words Bell spoke, regardless of the manner of speech, threatens teachers. The majority at 286-87, and in note 27, urges that, by Bell's stating he was writing about real-life, he was referring to his personal experiences at school regarding the allegations about the coaches, and that his "real-life" statement should not be construed to imply a serious intent to carry out the threats in his recording. Again, the public-school system "relies necessarily upon the discretion and judgment of school administrators and school board members". Wood, 420 U.S. at 326, 95 S.Ct. 992. Therefore, as noted supra, "[i]t 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". Id.; see also Morse, 551 U.S. at 425, 127 S.Ct. 2618 (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".).
The majority at 302, in note 49, emphasizes that, based on numerous factors such as the claimed indirect and allegedly conditional nature of the threat, and the claimed lack of evidence demonstrating a violent predisposition, Bell's speech could not have been considered a true threat as a matter of law. The question is not which interpretation is more reasonable; rather, it is whether an objectively reasonable person
The majority at 303, in note 50, accuses this dissent of failing to give "due consideration to the consequences on social and political discourse" by this dissent's labeling Bell's speech a "true threat". The majority equates Bell's threats to other forms of pure political speech and, relying on the facts of Watts, claims Bell's speech could not have reasonably been interpreted as a true threat. (At 300-01, in an absurd metaphor, the majority claims that no reasonable person would conclude performers murdered, or intended to murder, the characters in their well-known songs based on their lyrics. Needless to say, those songs involved fictional characters, not real-life educators during an extremely tragic period of school violence in this Nation's history. This comparison by the majority conveys an attitude that not only ignores this tragic period but also reflects an almost callous indifference toward it.)
Further, the majority glosses over the stark differences between this case and Watts. In Watts, at a Vietnam War protest rally, the speaker made, for effect, hyperbolic "threats" against the President, stating, "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." 394 U.S. at 706, 89 S.Ct. 1399. Here, unlike in Watts, and according to his rap recording, Bell knew these coaches, and interacted with, and had access to, them as a student. Additionally, Bell did not speak abstractly; rather, he advocated their being killed with a specific brand of gun, and in a specific way. Bell's access to the coaches, and the specificity with which he threatened, intimidated, and harassed them, mandate an outcome different from that reached by the majority. As discussed, the First Amendment must give way in the face of speech reasonably interpreted as imminent threats of danger.
Finally, this court should be even more reluctant to overrule the judgment of school officials in the light of the above-described, widespread gun violence throughout our Nation. Combining Bell's intentional communication of the rap recording toward students and administrators with the school board's objective determination that Bell threatened, harassed, and intimidated two teachers, there is no genuine dispute that Bell's threats satisfy the true-threat test and, therefore, are unprotected speech.
In the alternative, and pursuant to the Tinker "substantial-disruption" test, the school-board's decision did not violate Bell's First Amendment rights. In general, our court applies the Tinker analysis to "school regulations directed at specific student viewpoints". Porter, 393 F.3d at 615; see also Wynar, 728 F.3d at 1069 ("[W]hen faced with an identifiable threat of school violence, schools may take disciplinary action in response to off-campus speech that meets the requirements of Tinker."); Wisniewski v. Bd. of Educ. of the Weedsport Cent. Sch. Dist., 494 F.3d 34, 38 (2d Cir. 2007); Boim v. Fulton Cnty. Sch. Dist., 494 F.3d 978, 982-83 (11th Cir.2007) (analyzing threats of violence to individual teachers under Tinker). Tinker allows a school board to discipline a student for speech that either causes a substantial disruption or is reasonably forecast to cause one. 393 U.S. at 514, 89 S.Ct. 733. In that regard, as discussed, judicial review is necessarily deferential: "School administrators must be permitted to react quickly and decisively to address a threat of physical
The majority contends the rap recording is "off-campus" speech, noting throughout its recitation of the facts that, inter alia, Bell composed, recorded, and uploaded the recording off-campus. Even assuming the "on-campus/off-campus" distinction remains relevant today (it does not, as discussed infra), Bell's intent for the speech to reach members of the community (admitted by Bell at the disciplinary-committee hearing and recognized by the majority at 283), evinced by his posting the recording publicly to Facebook and YouTube, makes Bell's speech the functional equivalent of on-campus speech. Treating it otherwise is a classic, and forbidden, elevation of form over substance.
Notwithstanding its assuming the Tinker test applies in this instance, the majority claims at 293-94, in notes 37 and 38, that our precedent only leaves open the possibility of applying Tinker to off-campus speech. But, contrary to the majority's understanding, this is not an open issue: our court has applied Tinker to off-campus speech when, as in this instance, the speech reached the school. In a post-Tinker decision, Sullivan v. Houston Independent School District, our court held that, where a student sold vulgar newspapers off-campus, defendant's "conduct ... outweigh[ed] his claim of First Amendment protection". 475 F.2d 1071, 1075 (5th Cir.1973) ("This case arises from the unauthorized 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)). Our court reasoned: "In the years since Tinker was decided courts have refused to accord constitutional protection to the actions of students who blatantly and deliberately flout school regulations and defy school authorities", proceeding to cite numerous cases applying Tinker to similar speech. Id. at 1076. Although the court was careful to emphasize the reasonable responses of the school and the unhelpful conduct by defendant in the face of such responses, the court also emphasized defendant's "conduct [could] hardly be characterized as the pristine, passive acts of protest `akin to pure speech' involved in Tinker". Id. (citation omitted).
Likewise, the contrast here could not be greater. Bell's rap recording is so far removed from the armbands worn in Tinker, protesting the war in Vietnam, that his seeking protection under the First Amendment, based on the test in Tinker, borders on being frivolous. Consistent with Justice Black's warning in Tinker, the majority's allowing Bell to threaten, intimidate, and harass two teachers, by holding the comments are protected speech, signals a "revolutionary era of permissiveness in this country fostered by the judiciary". Tinker, 393 U.S. at 518, 89 S.Ct. 733 (Black, J., dissenting).
Further, our court's decision in 2004 in Porter supports this conclusion. The Porter court, in noting other circuits' application of Tinker to off-campus activities, interpreted Sullivan as applying Tinker to off-campus speech. 393 F.3d at 615 n. 22, 619 n. 40 (stating "a number of courts have applied the test in Tinker when analyzing off-campus speech brought onto the school campus", citing Sullivan).
The majority at 295, in note 39, accuses this dissent of "patent[ly] misreading" Sullivan and Porter. In a footnote devoid of any relevant legal analysis, the majority
Furthermore, the majority at 297-99 erroneously reads Ponce as limiting the application of Tinker in the school context to Columbine-like situations. Ponce is only one of our court's decisions applying Tinker. The distinction espoused by the majority ignores the paramount consideration that any threat, harassment, and intimidation of a teacher in a school environment must be taken seriously. Limiting an administrator's ability to act on threats in only Columbine-like, mass-shooting circumstances is a recipe for disaster.
But, even assuming our court has not previously applied Tinker to off-campus speech, in the light of the facts underlying this appeal, technological developments, as discussed supra, have rendered the distinction obsolete. The pervasive and omnipresent nature of the Internet, in many respects, has obfuscated the "on-campus/off-campus" distinction read into Tinker by some courts. Accord Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 220-21 (3d Cir.2011) (Jordan, J., concurring) ("For better or worse, wireless internet access, smart phones, tablet computers, [and] social networking ... give an omnipresence to speech that makes any effort to trace First Amendment boundaries along the physical boundaries of a school campus a recipe for serious problems in our public schools."). With students having instant access to the Internet anywhere, drawing such an arbitrary distinction both tortures logic and ignores history.
Skirting the issue, the majority at 293-94, in note 37, advocates that, despite rapidly changing technology, school administrators are powerless to act absent specific Supreme Court guidance. Once again, this flies in the face of the absolute necessity for school officials to act promptly to protect their students and teachers against threats, harassment, and intimidation. To keep pace with technological developments, "speech" made over the Internet (whether through an on-campus or off-campus computer) that is intentionally directed at the school cannot be ignored based solely on the original source. The majority disagrees, citing Morse, 551 U.S. at 424, 127 S.Ct. 2618 (Alito, J., concurring), for the proposition that "[i]t is a dangerous fiction to pretend that parents simply delegate their authority — including their authority to determine what their children may say and hear — to public school authorities", and Shanley, 462 F.2d at 964, for the proposition that a school board's unreasonable "assumption of authority is an unconstitutional usurpation of the First Amendment". Obviously, these general principles do not conflict with the issue at hand.
Here, Bell targeted his rap recording at the school by posting it on Facebook and YouTube, admittedly knowing students, and admittedly hoping administrators, would listen to it. The majority states at 295 that the school's prohibition of student cell phones on-campus made it unlikely the recording would be heard on-campus. This assertion is not supported by the summary-judgment record. For example, in one instance, the rap recording reached
Under Tinker, "school officials may regulate student speech when they can demonstrate that such speech would substantially interfere with the work of the school or impinge upon the rights of other students". Porter, 393 F.3d at 615 (citation and quotation marks omitted). This standard can be satisfied by either 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, 462 F.2d at 974 (citation omitted).
Taking the school board's decision into account, and the deference we must accord it, the issue to be decided is whether a genuine dispute of material fact exists for whether the school board acted reasonably in finding Bell's rap recording constituted an ongoing, or reasonably foreseeable, substantial disruption. Because the school district's written policy embraces the Tinker analysis, this question boils down to whether the school board acted reasonably in determining the rap recording was a substantial disruption because it threatened, harassed, and intimidated two teachers. There is no genuine dispute of material fact; the school board acted reasonably.
The school-district's Discipline — Administrative Policy lists the offense "Harassment, intimidation, or threatening other students and/or teachers" as a "severe disruption". That policy establishes conduct that the school board considers sufficient to satisfy Tinker's substantial-disruption test. Along that line, the superintendent testified at the preliminary-injunction hearing that her initial decision to suspend Bell stemmed from her belief the rap recording constituted a danger of a substantial disruption at the school. In that regard, threats against, and harassment and intimidation of, teachers are inherently disruptive. Finally, as Bell admitted, and the majority recognizes at 287, even assuming arguendo Bell's speech was not an imminent threat, the speech reflected the possibility of future violence by others. This, alone, resolves the issue of whether it was reasonably foreseeable to disrupt the school.
Relying on language in Shanley stating school boards cannot rely on ipse dixit to demonstrate material and substantial interference with school discipline, the majority makes several logical missteps. It asserts at 294 that this dissent's Tinker analysis relies too heavily on the school board's interpretation that "threatening, intimidating and harassing" speech constitutes a "severe disruption". Again, regarding teachers, what else could such speech constitute? Under the majority's understanding of Tinker, a student could say anything so long as he set it to melody or rhyme. Once again, the majority refuses to acknowledge reality.
As the majority notes at 296-97, Shanley also states: "Tinker requires that presumably protected conduct by high school students cannot be prohibited by the school unless there are `facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities...."' 462 F.2d at 970 (citing Tinker, 393 U.S. at 514, 89 S.Ct. 733). As stated,
Further examination of the rap recording demonstrates this. In addition to the above-discussed threats, intimidation, and harassment in the recording, Bell, for example, refers to the teachers as "perverts". He even derides the size of the breasts of the wife of one of the teachers ("his wife ain't got no titties"). Those harassing comments alone forecast a substantial disruption to school discipline.
The majority at 297, in note 43, claims the school board's disciplinary policy embraces the majority's contention that the school may only discipline a student for speech originating physically on-campus because other listed "offenses" relate to on-campus conduct. This assertion is factually and logically incorrect. First, in addition to activities that commonly occur on-campus, the policy lists several prohibited "off-campus" activities, e.g., behavior on a school bus, which likely occurs off school grounds. Second, under this rationale, Bell would be immune from disciplinary action were he to present the rap recording, with its extensive threatening, harassing, and intimidating portions, on television, over the radio, or in a newspaper. As Sullivan makes clear, speech conveyed through the latter media may be restricted. E.g., 475 F.2d at 1076. Finally, this understanding ignores the nature of such comments; even if they are made "off-campus", the danger and disruptiveness — of the comments do not cease to have effect the moment after being made. Rather, they remain linked to the speaker, and as the speaker comes closer to the subject (such as when the student attends school), the danger becomes more present and the likelihood of disruption increases. Therefore, the majority's attempt to limit the school board's policy as applying only to activities physically occurring on school grounds runs counter to the policy's express language and purpose.
After temporarily suspending Bell and holding two hearings, school officials considered the rap recording substantially disruptive. And, as noted, the school board upheld the recommendation of the disciplinary committee, after the board found Bell's rap recording constituted a threat, harassment, and intimidation. In doing so, the school board also reasonably forecast further substantial disruption to the school's mission and school administrators' responsibility to protect students and faculty. (Significantly, the disciplinary-committee hearing and school-board meeting more than satisfied Bell's due-process rights. See Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 635 F.3d 685, 691-92 (5th Cir.2011) (explaining alternative education program does not violate Fourteenth Amendment and, for temporary suspensions, only "an informal give-and-take-between student and disciplinarian" is required) (emphasis added).)
Citing AM. ex rel McAllum v. Cash, 585 F.3d 214, 221 (5th Cir.2009) for the proposition that school officials "must base their decisions on fact, not intuition", the majority at 292 intimates that the school board disciplined Bell based on the "mere expectation" of disruption. The summary-judgment record shows otherwise. For example, Bell's mother testified that members of the community believed the language in
Seeking shelter under the First Amendment, Bell makes two meritless claims: his rap recording is merely hyperbole and, therefore, protected speech; and, as a corollary, the school board acted unreasonably.
First, Bell's claim that the rap recording is not threatening, harassing, or intimidating is immaterial. Under Tinker, a school may take action so long as the speech is reasonably forecast to cause a material and substantial disruption. Shanley, 462 F.2d at 974-75. Here, as discussed supra, it is reasonable to conclude that a material-and-substantial disruption could occur as a result of the statements against the coaches. Possible fact-based substantial disruptions range, for example, from the coaches' inability to properly teach, resulting from students' loss of respect for the coach, to acts of violence carried out against the coaches.
Second, Bell's assertion that the school-board determination was unreasonable is, itself, unreasonable as a matter of law. E.g., Burnham v. Ianni, 119 F.3d 668, 679 (8th Cir. 1997). To find Bell's claim meritorious would require holding no objectively reasonable person could interpret language in Bell's rap recording as threatening, intimidating, or harassing. Not only does such a conclusion defy common sense, but it also goes against the undisputed evidence, in particular Coach W.'s statement that the language frightened him.
The majority attempts to bolster its untenable position by claiming at 282 that the school board did not demonstrate the rap recording "caused a substantial disruption of school work or discipline, or that school officials forecasted or reasonably could have forecasted such a disruption". See also Maj. Op. at 294-96 & nn. 38 & 41. The school board is not required to engage in a "substantial disruption" analysis commensurate with that undertaken by courts assessing speech infringement under Tinker; rather, the school board is required to show "demonstrable factors" that would give rise to any reasonable forecast of a substantial disruption. E.g., LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir.2001); see also, e.g., D.F. v. Bd. of Educ. of Syosset Cent. Sch. Dist., 180 Fed. Appx. 232 (2d Cir.2006) (affirming, without supplementation, the district court's conclusion that Tinker supported the school board's suspension of a student after finding he had "threatened use and/or contemplated use of a weapon in violation of the Code of Conduct").
In sum, Tinker-based judicial decisions assessing substantial-disruption speech review the "totality of the relevant facts", LaVine, 257 F.3d at 989; "Tinker does not prescribe a uniform, `one size fits all' analysis. The [c]ourt must consider the content and context of the speech, and the nature of the school's response", Lowery v. Euverard, 497 F.3d 584, 588 (6th Cir.2007). "We look not only to [the student's] actions, but to all of the circumstances confronting the school officials that might reasonably portend disruption". LaVine, 257 F.3d at 989 (citation omitted).
Generally, Tinker provides school administrators may discipline a student for speech that materially and substantially interferes "with the requirements of appropriate discipline in the operation of the school". 393 U.S. at 513, 89 S.Ct. 733
The totality of the relevant facts are addressed through the lens of the bedrock principle that "the determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board, rather than with the federal courts", and with the understanding that "Tinker does not require certainty that disruption will occur, but rather the existence of facts which might reasonably lead school officials to forecast substantial disruption". Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267-68, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (citation and internal quotation marks omitted); LaVine, 257 F.3d at 989; see also Lowery, 497 F.3d at 596 ("School officials have an affirmative duty to not only ameliorate the harmful effects of disruptions, but to prevent them from happening in the first place.").
Here, Bell presented a transcription of the recording containing the threats and references to guns, and he admitted at the disciplinary-committee hearing that he posted the recording to public websites on the Internet, intending the language to reach both the school community and the public at large. Therefore, not only does the summary-judgment record support the school board's finding the recording threatened, intimidated, and harassed two coaches, but this conclusion stems from Bell's own submissions to, and admissions before, the disciplinary committee.
The majority also contends at 285, in note 21, that there is no evidence indicating how many of Bell's friends listened to the posted recording. This is irrelevant. Bell admits, and the majority recognizes at 283, that Bell intended the speech to reach the school community, which it did. The majority further contends at 285, in note 21, that the Facebook comments undermine this dissent's claim that the school board could have forecasted reasonably a substantial disruption. The majority's logic is flawed; although potentially representative of how some would interpret the recording, simply because one segment of the population views speech one way does not make another understanding objectively unreasonable. This red herring by the majority undermines its position — the only issue of consequence is whether the school board acted reasonably in viewing Bell's speech as "threatening, intimidating, or harassing", not which interpretation is "more reasonable".
Further, the majority's claim ignores that, pursuant to school-district policy, threatening, harassing, and intimidating
Before this court for de novo review are cross-motions for summary judgment. As discussed supra, each motion must be reviewed independently. Assuming arguendo a genuine dispute of material fact exists regarding the school board's summary-judgment motion, then a genuine dispute of material fact also exists regarding Bell's summary-judgment motion.
The key factor for reviewing the school-board's motion is the understandable, and well-established, deference that must be accorded its decision. It goes without saying that no such deference is accorded the First Amendment claim in Bell's summary-judgment motion. The deference accorded the school board is incorporated in its reliance on true threats and substantial disruption as the independent bases for its decision.
Accordingly, assuming arguendo a genuine dispute of material fact exists regarding that decision by the school board, summary judgment cannot be rendered for Bell on his First Amendment claim. Instead, that claim must be remanded to district court for trial. In other words, assuming arguendo the majority is correct in vacating the summary judgment awarded the school board on Bell's First Amendment claim, the majority errs, nevertheless, in rendering summary judgment for Bell on that claim.
For the foregoing reasons, for Bell's First Amendment claim, I dissent from the majority's both vacating the summary judgment for the school board and rendering summary judgment for Bell. Instead, the district court's judgment should be affirmed on all issues. In the alternative, assuming arguendo the school board is not entitled to summary judgment against Bell's First Amendment claim, the majority cannot render summary judgment for Bell on that claim; it must be remanded to district court for trial.
This court, along with the Third Circuit, has left open the question of whether the Tinker "substantial-disruption" test can apply to off-campus speech. In J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 926, 930 (3d Cir.2011) (en banc), the Third Circuit assumed, without deciding, that Tinker applied to a student's creation of a parody MySpace profile mocking the school principal, but held that it was not reasonably foreseeable that the speech would create a substantial disruption. In a separate concurrence, five judges expressed their position that Tinker does not apply to off-campus speech and that "the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large." Id. at 936 (Smith, C.J., concurring). In another Third Circuit en banc case decided the same day as Snyder, and also involving a principal parody profile, the school district did "not dispute the district court's finding that its punishment of [the student] was not appropriate under Tinker." Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 216 (3d Cir.2011) (en banc). The school district relied instead on Fraser. Id. But the court went on to note that Fraser did not allow the school "to punish [the student] for expressive conduct which occurred outside of the school context." Id. at 219. In Porter v. Ascension Parish School Board, this court similarly left open the question of whether Tinker applied to off-campus student speech. 393 F.3d 608, 615-16 n. 22 (5th Cir.2004) (student's sketch depicting violent siege on school was speech protected by the First Amendment and not "on-campus" speech subject to school regulation, where student had completed drawing in his home, stored it for two years, and never intended to bring it to campus, but rather stored it in closet where it remained until, by chance, it was unknowingly taken to school by his brother; but principal was not objectively unreasonable and therefore entitled to qualified immunity and plaintiff's claim against school officials in their official capacity was waived because plaintiff failed to brief the issue).
This court in Porter did not hold that the Tinker substantial-disruption test applies to off-campus speech. 393 F.3d at 615 n. 22. The court concluded that the speech involved in Porter-viz., a drawing depicting school violence that was inadvertently taken to campus by the student's brother — constituted off-campus speech for which the Tinker substantialdisruption test did not apply. Id. at 615. The court found that the circumstances involved in Porter were "outside the scope" of those involved in other non-Fifth Circuit cases which have held that in certain situations off-campus speech that is later brought on campus may be subject to the Tinker substantial-disruption analysis. Id. at 615 n. 22. In dicta, the court acknowledged those other cases applying Tinker to certain categories of off-campus speech and noted that its "analysis today is not in conflict with this body of case law." Id. However, given the facts before it, the Porter court was not in a position to decide whether, and under what circumstances, Tinker applied to off-campus speech.
Thus, contrary to the dissent's assertion, the applicability of the Tinker substantial-disruption test to off-campus speech like Bell's remains an open question in this circuit. However, as explained herein, we need not resolve that consequential question because the School Board did not demonstrate that Bell's song caused or reasonably could have caused a substantial disruption. In so doing, we are guided by the "`older, wiser judicial counsel not to pass on questions of constitutionality... unless such adjudication is unavoidable.'" Pearson v. Callahan, 555 U.S. 223, 241, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Scott v. Harris, 550 U.S. 372, 388, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (Breyer, J., concurring); Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944)); see also Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) ("The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.").
The Morse decision resulted in a narrow holding: a public school may prohibit student speech at school or at a school-sponsored event during school hours that the school "reasonably view[s] as promoting illegal drug use." Id. at 408, 127 S.Ct. 2618. Indeed, Justice Alito's concurrence stated that he joined the majority opinion "on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue." Id. at 422, 127 S.Ct. 2618 (Alito, J., with whom Justice Kennedy joins, concurring). Justice Alito also made clear that he joined the majority only insofar as "the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions" beyond those articulated in the Supreme Court's prior student speech cases. Id. at 423, 127 S.Ct. 2618. As made strikingly clear by Justice Alito's concurrence, Morse therefore in no way expands school officials' authority to restrict student speech on social or political matters; rather, the decision held only that schools have the limited authority to restrict speech at school or a school-approved event that could be reasonably viewed as promoting illegal drug use.
Moreover, while conceding that Bell's song addresses a matter of public concern, the dissent does not give due consideration to the consequences on social and political discourse of reflexively deeming Bell's song a "true threat." The genius of the First Amendment is its implicit recognition that the great diversity of our democracy yields a corresponding diversity in the creative forms of social and political debate. See, e.g., Brown v. Entertainment Merchants Ass'n, ___ U.S. ___, 131 S.Ct. 2729, 2733, 180 L.Ed.2d 708 (2011) ("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 and citation omitted); Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (observing that "one man's vulgarity is another's lyric"). A cartoon can be as powerful as a pamphlet. See Hustler Magazine v. Falwell, 485 U.S. 46, 53, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); accord Brown, 131 S.Ct. at 2733 ("Like the protected books, plays, and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world)."). The most vulgar and hateful of words can be the only ones capable of conveying one's ideology. See Snyder, 131 S.Ct. at 1216-17. Within this same tradition, Bell accomplished his social critique of the coaches' harassment of female students by including vulgar and violent language in his off-campus rap recording. Compare Watts, 394 U.S. at 708, 89 S.Ct. 1399 ("The language of the political arena, like the language used in labor disputes ... is often vituperative, abusive, and inexact."). While some may prefer a socio-political landscape lacking such rhetoric, the First Amendment nevertheless protects it, and the narrow applicability of the "true threat" doctrine ensures that speech on such matters of public concern, even if vulgar or violent, is not chilled. See id. at 706, 89 S.Ct. 1399 (holding that petitioner's statement at a public rally that, if drafted and given a rifle, he would shoot the President was political hyperbole and not a "true threat" and was, therefore, protected by the First Amendment).
