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Appeals Court Backs Student Over Violent Rap Produced Off Campus

A federal appeals court has ruled that a high school student's rap song using vulgar and violent lyrics to criticize two male coaches at his school, on the grounds that they allegedly sexually harassed female students, is protected by the First Amendment.

The panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled 2-1 that the student's rap message was produced and distributed entirely outside of school and did not substantially disrupt school.

The majority said a federal trial court went too far by ruling that the U.S. Supreme Court's landmark 1969 decision about student speech in Tinker v. Des Moines Independent Community School District applied to students' off-campus speech.

"We do not decide whether the Tinker substantial-disruption test can be applied to a student's rap song that he composed, recorded, and posted on the Internet while he was off campus during non-school hours," the 5th Circuit majority said. "Rather, we decide only that, even assuming arguendo the School Board could invoke Tinker in this case, it would not afford the School Board a defense for its violation of [student Taylor] Bell's First Amendment rights because the evidence does not support a finding, as would be required by Tinker, that Bell's song either substantially disrupted the school's work or discipline or that the school officials reasonably could have forecasted such a disruption."

The case concerns rap songs record by Taylor Bell in December 2010, when he was a senior at Itawamba Agricultural High School in Itawamba, Miss. Bell testified that several of his female friends at school told him that two male athletic coaches at school had inappropriately touched them and made sexually-charged comments to them and other female students at school. (The allegations about the male coaches are so explicit, and Bell's lyrics so violent and vulgar, I'll refer you to the 5th Circuit court's Dec. 12 opinion in Bell v. Itawamba County School Board for the details.)

Bell testified that if he wrote and sang about the alleged incidents, he believed somebody would listen to his music and that it might help remedy the problem of teacher-on-student sexual harassment at his school.

Bell was suspended from school, and he challenged the discipline in a lawsuit raising First Amendment free speech concerns.

A federal district court granted summary judgment to the school district, but the 5th Circuit court reversed that.

"Contrary to the district court's conclusions, the Supreme Court's student-speech cases, including Tinker, do not address students' speech that occurs off campus and not at a school-approved event," the 5th Circuit court said. "The court has not decided whether, or, if so, under what circumstances, a public school may regulate students' online, off-campus speech, and it is not necessary or appropriate for us to anticipate such a decision here. Even if Tinker were applicable to the instant case, the evidence does not support the conclusion, as required by Tinker, that Bell's Internet-posted song substantially disrupted the school's work and discipline or that school officials reasonably could have forecasted that it would do so."

"Furthermore, in light of the rap's factual context, its lyrics' conditional nature, and the reactions of its listeners, we likewise reject the argument that Bell's rap song was excepted from First Amendment protections because it constituted a true threat," the court majority said.

U.S. Circuit Judge Rhesa Hawkins Barksdale dissented, saying that in light of widespread use of social media by students and the record of violent incidents at schools in recent years, "school administrators must remain vigilant as they seek to prevent violence against students and faculty. As part of this vigilance, they must take seriously any statements by students resembling threats of violence, as well as intimidation and harassment by them."

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