Free-speech status: It's complicated.

Photographer: Ted Aljibe/AFP/Getty Images

What Students Post Online Can Get Them Suspended

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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When I was a student in a private religious school, I looked with envy on the First Amendment rights of public school children, who couldn’t, I imagined, be disciplined for what they said off campus. Now a divided U.S. Court of Appeals for the 5th Circuit has held that I was wrong. According to the appeals court, a student can be suspended for posting rap lyrics on Facebook and YouTube that threatened a teacher at the school, because the speech was predictably disruptive. Depending on how Thursday's decision is interpreted, it could be used to limit students’ off-campus political speech in cases where no threat existed at all.

The facts of the case provide ample ammunition for both opponents and supporters of unfettered student speech. Taylor Bell, a student at Itawamba Agricultural High School in Itawamba County, Mississippi, wrote, recorded and posted online a rap criticizing two coaches at the school. The song alleged that they were harassing the female track and field athletes they coached. Race was an issue in the rap (not that the court of appeals acknowledged it). The coaches are white; the female athletes are black; and the student-rapper, who’s black, used charged racial language while accusing the coaches of attraction to black women.

If the rap had only accused the teachers, the case would still have been interesting. But what makes it so tricky is that the rap went further. It said that if anyone -- by implication a teacher -- challenged the rapper, he’d get hit “with my Ruger” or “get a pistol down your mouth.” Bell claimed that these phrases were generic rap bragging: tropes, not threats. The majority of the court thought, plausibly enough, that these were threats against the coaches.

To decide whether the school was permitted to discipline Bell, the court used a 1969 precedent, Tinker v. Des Moines Independent Community School District. That landmark case, which created the doctrine of school free speech, involved public school students who wore black armbands on campus to protest the Vietnam War. The court held that the students were protected by the First Amendment, and that their speech could be restricted only if it could reasonably be predicted to “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Mere “discomfort and unpleasantness” weren’t enough.

The Tinker case involved conduct that took place in school. The 5th Circuit said that the precedent applied to Bell’s rap, even though it was posted online. The court gave two major reasons: that the ubiquity of the Internet and social media makes it absurd to draw a line between in-school and out-of-school speech, and that, although Bell’s speech didn’t “portend” a Columbine-style shooting, nevertheless school violence has become a major current concern.

That left the question of whether Bell’s speech was disruptive to the school operation. The court said it was, because threats are disruptive.

The decision may sound like common sense. Nevertheless, a glaring problem with the court’s opinion is the idea that off-campus speech can be disciplined if it’s sufficiently disruptive. It’s easy to imagine artistic work by students, or political activities or protests, that would disrupt school in the sense of creating arguments or classroom discussions.

Several judges, concurring separately, insisted that the court’s opinion wouldn’t lead to restrictions on such speech. They pointed out that the court’s opinion says that Bell’s rap was threatening, and therefore disruptive. It’s a nice thought -- but the majority never said it was restricting its holding to threats. The holding could also be cited as a precedent for restricting any off-campus speech that would disrupt school administration.

A sharp dissent by Judge James Dennis rejected the very premise that the Tinker case applied. Dennis argued that Bell’s rap was intended to draw attention to a matter of serious public concern: sexual harassment of students by coaches. This merited special free-speech protection, the judge said, and so should’ve been fully protected. The Tinker case was limited to the school environment, Dennis argued. More broadly, Dennis reasoned, online speech has been broadly protected by the U.S. Supreme Court.

The effect of the majority opinion is, indeed, to give schools the authority to discipline students for any online speech they deem disruptive. And online is of course where most young people do most of their talking. The consequences are therefore extremely far-reaching.

Whether you think this is a good thing probably depends on how much power you want schools to have over students’ lives. If, for example, you want schools to regulate online bullying, you should welcome the holding. If, like me, you worry that institutional control over private life is risky to our liberties, you’ll think the court got it wrong.

The issue will certainly reach the Supreme Court, either as the result of an appeal of this decision or in a future case. In the meantime, students should be on notice that their out-of-school speech is fair game for school regulation -- whether it rhymes or not.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net