The U.S. Supreme Court will be asked to consider whether to hear a case that could have rippling effects on high school students’ off-campus and online speech.
The attorneys for Taylor Bell, who was suspended from Itawamba Agricultural High School in January 2011 for posting a homemade rap video to Facebook and YouTube, filed a petition with the highest court on Tuesday, asking the justices to review the Fifth Circuit’s decision in applying standards established almost 50 years ago in the Tinker v. Des Moines Independent Community School District to off-campus online speech.
Bell, who was sent to an alternative school for the six weeks remaining of the school quarter, used profanity and violent imagery in his video addressing accusations of inappropriate behavior by two male school coaches toward female students.
“Looking down girls shirts / drool running down your mouth / you fucking with the wrong one / going to get a pistol down your mouth / Boww,” Bell wrote in his song.
If the Supreme Court accepts the case, it would be the first time the justices address school discipline of speech outside of the school campus posted to social media websites.
In Tinker, the Supreme Court ruled in 1969 that school officials may not censor student speech unless it causes a substantial or material disruption to the educational operation of the school. Since the standard was established prior to the internet’s existence, courts have been divided about whether Tinker covers off-campus online speech.
“Students’ off-campus speech is entitled to full First Amendment protection,” the petition argued. “But at a minimum, off-campus speech should be governed by a more protective standard than Tinker, which was developed to balance the relevant considerations when students speak on campus.”
The case was first heard in Feb. 2011 by the U.S. District Court for the Northern District of Mississippi. The district court ruled in favor of the Itawamba County School District, finding that, since the teachers changed their teaching styles after the rap’s publication, Bell had caused a substantial disruption. School administrators reasonably understood the speech to be threatening, harassing and intimidating, the court decided.
The district court found “the Tinker standard applies to Taylor Bell’s song without regard to whether it was written, produced, and published outside of school.”
In Dec. 2014, a Fifth Circuit panel of three judges overturned the district court’s decision, with two out of three judges voting in favor of Bell. They found that the song did not cause a substantial disruption and because it was recorded off campus, the Tinker test did not apply.
But in February, the Fifth Circuit decided to rehear the case before all 15 circuit judges, and in August, the majority affirmed the district court’s original decision in favor of the school district.
Judge Rhesa Hawkins Barksdale, who authored the majority opinion, wrote that because of a rise in incidents of violence against schools, administrators must take seriously any possible threats of violence and that “it is necessary to establish the extent to which off campus student speech may be restricted without offending the First Amendment.”
Four Fifth Circuit justices dissented, at least in part, and expressed that guidance was needed on the issue of off-campus speech from the Supreme Court.
In a dissent, Circuit Judge James L. Dennis wrote that the decision “denigrates and undermines not only Bell’s First Amendment right to engage in off-campus online criticism on matters of public concern, but also the rights of untold numbers of other public school students.”
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