Protect students’ rights to use online media to expose wrongdoing, SPLC tells appeals court
FOR IMMEDIATE RELEASE Contact: Frank D. LoMonte, executive director 703.807.1904 / firstname.lastname@example.org
In the case of a Mississippi student disciplined for a rap video about inappropriate behavior by school coaches that was posted to YouTube, the Student Press Law Center (“SPLC”) is asking a federal appeals court to clarify that whistleblowing about school wrongdoing is constitutionally protected speech.
The SPLC filed a friend-of-the-court brief Wednesday with the 5th U.S. Circuit Court of Appeals in New Orleans, urging the court to overturn a lower court’s March 15 order dismissing the student’s First Amendment claims. The district court ruling “sends the intolerable message that schools may ban and punish even well-founded reports of employee misconduct,” the SPLC argues in its amicus brief.
“Because schools have so heavily censored on-campus media, it’s imperative that students have some uncensored vehicle they can use to discuss their concerns about school issues and school personnel,” said attorney Frank D. LoMonte, executive director of the SPLC. “This student chose an unnecessarily offensive way to make his point, but the precedent set by this case risks putting other student commentators and whistleblowers in danger. The Fifth Circuit needs to make it crystal clear that students have a constitutional right to use their off-campus hours to complain about school conditions, even if the complaints upset people and provoke a reaction on campus.”
In January 2011, Taylor Bell, then a senior at Itawamba Agricultural School near Tupelo, Miss., created a YouTube video of a rap song with lyrics about what he claimed was inappropriate behavior by two athletic coaches, including touching female students and leering down their shirts. Although the song used violent imagery and profanity, Bell testified that the song was his attempt to call public attention to misconduct. The school learned of the video, suspended Bell and transferred him to alternative school on the grounds that the song constituted “harassment and intimidation.”
In March, a U.S. district judge for the Northern District of Mississippi dismissed the Bell family’s lawsuit challenging the discipline as unconstitutional. Judge Neal Biggers ruled that, even though the video was created off-campus with no connection to school, the video was punishable under the same legal standards that apply to on-campus speech because it was “reasonably foreseeable” that the lyrics would have a disruptive impact on campus.
While acknowledging that Bell’s choice of language was intemperate and perhaps deserving of punishment by his family, the SPLC argues in its amicus brief that Judge Biggers went too far in permitting school punishment of entirely off-campus expression merely because of the way people might react to it on campus.
Noting that Secretary of State Clinton, in a recent speech to students at George Washington University, hailed the importance of uncensored Internet access by using the example of schoolchildren in Syria who used Facebook to call attention to the sexual abuse of students in their school, the SPLC wrote: “The very same online speech that Secretary Clinton held up as emblematic of the liberating power of the Internet in one of the Arab world’s most oppressive backwaters is, under the District Court’s ruling, subject to government punishment today in the Northern District of Mississippi.”
Rather than applying the legal standards that govern regulation of in-school speech, the SPLC urged the Fifth Circuit to send the case back to the lower court to determine whether the speech was so extreme – i.e., realistically threatening violence, or falsely defaming the coaches – that the speech would have been unprotected by the First Amendment even if uttered by a non-student in a public setting.
The brief was prepared with the assistance of SPLC volunteer attorney Scott L. Sternberg of the law firm of Baldwin Haspel Burke & Mayer, LLC, in New Orleans. Mr. Sternberg, who worked for the SPLC as a journalism fellow before law school, has a diverse civil litigation practice including energy, admiralty and maritime law, in addition to teaching First Amendment law at the college level.
Since 1974, the Student Press Law Center has served as the nation’s only nonprofit legal assistance service dedicated to the needs of student journalists and the educators who work with them. More information about the work of the Student Press Law Center is available on its website at www.splc.org.