Off-campus speech of a physically threatening nature can be regulated by school officials says 5th Circuit

Bell v. Itawamba County School Board No. 12-60264 (5th Cir. August 20, 2015).

In an en banc opinion, the majority determined that when off-campus speech directly affects campus activities, the speech can be regulated without violating the First Amendment.

Away from school or a school function and without using school resources (off-campus speech), Taylor Bell, a student at Itawamba Agricultural High School posted a rap recording containing threatening language against two high school teachers/coaches on the Internet.  His stated purpose was to expose the harassment two teachers engaged in against female students. However, the lyrics used physically threatening language. The Itawamba County School Board took disciplinary action against Bell who sued for First Amendment violations. On cross-motions for summary judgment the trial court ruled the Itawamba Board acted reasonably and legally. Bell appealed.

The only claim analyzed by the en banc court was the First Amendment issue. There is a great deal of First Amendment analysis from all authors. However the main analysis centered on the U.S. Supreme Court’s opinion in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507, 89 S. Ct. 733, 737, 21 L. Ed. 2d 731 (1969) noting that while students retain certain First Amendment rights, those rights can be regulated in the interest of school operations in certain circumstances. The majority held Bell’s admittedly intentional speech was directed at the school community and contained threats to, and harassment and intimidation of, two teachers which permitted Tinker’s application in this instance. However, the majority declined to adopt a bright line standard and ruled based on the specific factual information in the record. The threats must be taken seriously by school officials, and reasonably could be forecast to cause a substantial disruption.  The concurring opinions addressed the distinction between off-campus speech of a physically threatening nature and off-campus speech which is not threatening and therefore not applicable under Tinker. Judge Costa, in his concurrence, noted that while Bell’s stated purpose of exposing the teachers’ harassment of female students is an important public concern, the method Bell chose to voice that subject (i.e. physically threatening language) is what crossed the line.

The dissenting judges believe the subject matter expressed by Bell was important. Since he did it off-campus it was his First Amendment right. The school was unable to establish an actual impairment to school operations.  However, even though dissenting, Judge Prado shared the majority’s concern on the effect such speech will have to the campus community and explained why current First Amendment precedent is a poor fit for online life in today’s society.

If you would like to read this opinion click here. Before STEWART, Chief Judge, JOLLY, DAVIS, JONES, SMITH, BARKSDALE, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON and COSTA.  Opinion by Justice Barksdale. Judge JOLLY specially concurred. Judge ELROD, joined by Judge JONES, concurred. Judge COSTA, joined by Judges OWEN and HIGGINSON concurred. Judge DENNIS, joined fully by Judge GRAVES, and in part by Judge PRADO, dissented. Additionally, Judges PRADO and GRAVES each separately dissented. Judge HAYNES dissented in part. Attorney for Appellant – Scott Winston Colom. Attorney for Appellee – Michael Stephen Carr,