5th Circuit, Free Speech

En Banc Fifth Circuit Erodes Student Speech Rights

Off-campus speech gets kid punished and the Fifth Circuit thinks that's just fine.

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The Supreme Court in Tinker v. Des Moines Independent Community School District famously stated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That principle should be (and usually is) doubly true for off-campus student speech. But, despite the best efforts of a host of lawyers, last week the en banc Fifth Circuit held that a school’s punishment of a student for his off-campus speech did not offend the First Amendment. As is true of many bad First Amendment decisions, the details of the case are colorful, to say the least.

In December 2010, then-high school senior Taylor Bell says he heard some girls from his school talking about inappropriate behavior on the part of two coaches: “‘The coach is looking down my shirt,’ or, ‘He’s saying that my butt is big.’ One girl, a gay girl, (said that one coach) was like, ‘If you wasn’t so gay, I would turn you out.’ Stuff like that you just don’t say to students — really, individuals period, but especially not to students.”

So Bell did what any self-respecting person would do: he recorded a song about what he’d heard. Then he posted it to Facebook in early January.  

Here are a few lines to give you a sense of the song: “Looking down girls’ shirts / Drool running down your mouth / You fucking with the wrong one / Going to get a pistol down your mouth.”

But an excerpt doesn’t really do the song justice, so I’d recommend you take a minute and read the full lyrics here.

You can all guess what happened: the school caught wind of the song and Bell was first suspended and then shipped off to another school.

So Bell sued.

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The centerpiece of Bell’s complaint, unsurprisingly, was a claim alleging that by punishing him for speech — especially speech about a matter of public concern, conducted off school grounds and without using school resources — the school district had violated his First Amendment right to free speech. But the school district responded that, because it was reasonably foreseeable that Bell’s references to sexual harassment and violence involving school personnel would materially or substantially disrupt the school environment, the school was within its rights to punish Bell. And ruling on cross-motions for summary judgment, a district judge agreed with the school district.

Bell appealed to the Fifth Circuit, where (two years after oral argument!) a divided panel reversed and granted summary judgment for Bell on his First Amendment claim. The majority noted that the Tinker “material and substantial disruption” standard probably did not apply to off-campus speech like Bell’s. The majority then held that even if that standard did apply, uncontested evidence showed that Bell’s speech neither caused such a disruption in fact nor did it pose a reasonable threat of a disruption.  

A vehement dissent suggested that punishing Bell’s speech was appropriate because his song espoused violence against two of the school’s coaches and because schools are now essentially war zones; in fact, most of the dissent’s first three pages are a discussion of recent school shootings, followed by pages of worrying about the rapid proliferation of speech over the internet. Given this recent history, according to the dissent, it is “beyond comprehension” that lines like the one I quoted above (“Looking down girls’ shirts / Drool running down your mouth / You fucking with the wrong one / Going to get a pistol down your mouth.”) might be considered protected speech. And so: “With due deference, the majority’s holding is absurd. This cannot be the law.”

And the dissenting judge, Rhesa Hawkins Barksdale, got the last laugh. The Fifth Circuit granted en banc review, and Judge Barksdale authored the resulting majority opinion. He again discussed school shootings, but this time converted what had been his conclusion in dissent to a holding of the court: “the manner in which [Bell] voiced his concern—with threatening, intimidating, and harassing language—must be taken seriously by school officials, and reasonably could be forecast by them to cause a substantial disruption,” partly in light of “numerous, recent examples of school violence… in which students have signaled potential violence through speech, writings, or actions, and then carried out violence against school communities.”

The en banc majority concluded that “the real tragedy in this instance is that a high-school student thought he could, with impunity, direct speech at the school community which threatens, harasses, and intimidates teachers and, as a result, objected to being disciplined.”

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How very tone deaf. Here is a student who hears and believes that some of his peers — children — have been subjected to sexual harassment by coaches — authority figures at their school. Whether or not his beliefs are correct, he tries in an admittedly clumsy way (he is a high-schooler, after all), and with admittedly “profane and vulgar” language, to attract some attention to the issue using the medium most familiar to him. He is punished for his speech by an arm of the state. And “the real tragedy” here is not the possible abuse his peers have suffered, and it’s not the erosion of speech rights in an era when their exercise could actually do some good — instead it’s that a child thought he had First Amendment protections in the first place?

Thank goodness for the lawyers trying to support student speech rights, even if their efforts fell short in this instance (as is, unfortunately, increasingly common). And let’s hope the Supreme Court sees fit soon to end the decades of caselaw eroding Tinker and return to its original guide star: the principle that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Who knows — maybe this will even be the case the Court uses to do so.

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at [email protected].

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