NEW ORLEANS — Off-campus speech that students share on the Internet must have heightened protection from school disciplinary authority to keep whistle-blowers and rap artists safe from punishment, an attorney for a suspended Mississippi high school student told appellate judges Tuesday.
"The question in this case is whether government is so powerful that it can reach into the parents' home, into a student's computer and punish the student as if it were the parent," attorney Scott Colom told the full en banc roster of the Fifth U.S. Circuit Court of Appeals.
Colom urged the judges to uphold a Fifth Circuit panel's December 2014 ruling in favor of Taylor Bell, an aspiring rap artist suspended from school in 2011 for a profane YouTube video about misconduct by two coaches at his school. Bell accused the coaches of sexually harassing female students in a rap song replete with violent imagery, including a line predicting that a coach would "get a pistol down your mouth."
In a rare move, the entire Fifth Circuit agreed to rehear the case and vacated the panel's 2-1 ruling that found the Itawamba County School Board overstepped the First Amendment in disciplining Bell as if the speech had been delivered on campus. There was no evidence that Bell played the rap song on campus, leaving the judges to decide how much authority schools have to punish student speech when it is created and distributed entirely off-campus but has the potential to cause a reaction at the school.
Colom ran into sharp questioning from Judge Rhesa Hawkins Barksdale, the dissenting vote in the December panel opinion, who argued that technology removes any distinction between on-campus and off-campus speech and that schools should have equivalent punitive authority over both.
When Colom said the issue was about the state's ability to regulate speech critical of government officials, Barksdale interjected: "It's not the state — it's a school."
When Colom said giving schools punitive authority over off-campus student speech could even allow them to suspend a student who used sharp language criticizing an elected school superintendent at a political rally, Barksdale shot back.
"That's not what we're dealing with," Barksdale said. "We're dealing with threats, harassment and intimidation."
Several federal appeals courts have, in recent years, given schools comparable authority over speech on social media as they have over speech on school premises under the Supreme Court's 1969 Tinker v. Des Moines Independent Community School District case. The Tinker principle allows schools to punish speech reasonably forecast to substantially disrupt school operations. The December panel opinion, however, questioned whether schools can be trusted with so much control over speech students create on their personal time, noting that Bell was attempting to complain about misconduct by school employees.
The school district's attorney, Benjamin E. Griffith, argued that Bell's constitutional challenge could be invalidated either by extending Tinker to reach potentially disruptive speech that is "intended to reach the school" or by finding that Bell's speech constituted a "true threat," which the Supreme Court has deemed to be categorically outside the First Amendment even in the off-campus adult world.
When challenged about how the speech "disrupted" the school, when the only evidence was that the coaches testified to changing their teaching styles around female students to be more careful, Griffith replied, "'Disrupt' means to break apart. They had to break away and break apart from their teaching style and method."
Several judges visibly struggled to come up with a legal standard that protects student political commentary and whistle-blowing speech from school retaliation. "Everything you say these days has the potential of reaching the Internet, so where's the line?" asked Judge Jennifer Walker Elrod.
Judge Leslie H. Southwick called it "troubling" that the school's position might expose students to punishment not just for disruptive off-campus speech, under the Tinker principle, but to all of the Supreme Court's legal precedent recognizing exceptions to the First Amendment for in-school speech. In addition to Tinker, the Court has allowed schools to punish in-school speech that is "lewd" or that promotes the use of illegal drugs, even if the speech is not disruptive. "Could a school now punish online pro-drug speech?" Southwick asked.
Griffith did not directly answer, instead focusing on the violent imagery of Bell's particular speech -- a position that invites the Court to create a narrower legal standard than Tinker, encompassing only violent speech but not other forms of potentially disruptive off-campus expression. Judges supportive of the school's position emphasized Bell's use of violent imagery and the need for schools to respond to perceived threats without judicial second-guessing.
"This is a case about 'I'm gonna put a gun down your throat -- pow!'" Judge Edith H. Jones remarked. "We don't need to go into highfalutin philosophical metaphysical discussions beyond that."
This post originally appeared on the SPLC blog.