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Full 5th Circuit to Rehear Case on Student's Violent Off-Campus Rap Song

A full federal appeals court will rehear a case in which a panel ruled that a Mississippi high school student's violent rap song critical of two coaches at his school was protected speech.

The full U.S. Court of Appeals for the 5th Circuit, in New Orleans, issued a brief order on Feb. 19 noting the rehearing in Bell v. Itawamba County School Board.

As I reported in the blog, a panel of the court voted 2-1 in a Dec.12 decision 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 district court went too far by applying the substantial-disurption test, from the U.S. Supreme Court's landmark 1969 decision in Tinker v. Des Moines Independent Community School District, to students' off-campus speech.

The case concerns rap songs recorded by Taylor Bell in 2010, when he was a senior at Itawamba Agricultural High School in Itawamba, Miss. Bell targeted his rap at two male athletic coaches at the school who, Bell alleged in court testimony, had inappropriately touched female students and made sexually-charged comments to them.

Bell testified that he believed that rapping about the allegations 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.

The panel said the Supreme Court has "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, the panel majority said, the evidence in Bell's case did not show that Bell's Internet-posted rap substantially disrupted school.

The dissenting judge on the panel said the growing use of social media by students meant that school administrators had to be vigilant against any student statements resembling threats of violence or harassment.

The full 5th Circuit court's rehearing order says a new argument date will be set.

(Hat Tip to How Appealing.)

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