In August 2010, Taylor Bell, a senior at a Mississippi public school, published a rap song that he put on YouTube.com and made accessible on his Facebook page to his 1,300 Facebook friends. The song criticized two coaches at Taylor’s school, alleging that each had had improper contact with female students. The last two verses of the song included these two phrases: “looking down girls’ shirts/drool running down your mouth/messing with wrong one/ going to get a pistol down your mouth” and “middle fingers up if you can’t stand that nigga [sic]/middle fingers up if you want to cap that nigga [sic].” (Despite the use of the n-word, there were no allegations of racism’s playing a role here.)
Once Taylor’s school learned of the rap song, he was required to speak with the principal and other administrators. When questioned, he stuck by his allegations of the coaches’ improper contact with female students, and said he was not making threats through the song.
Eventually, the school suspended Taylor indefinitely, pending a school board hearing.
On January 26, 2011, the School Board Disciplinary Committee held the hearing. Taylor attended, accompanied by his mother and his own counsel. The Committee concluded that the writing and dissemination of the rap song was “harassment and intimidation of teachers, and possible threats against teachers.”
The full school board agreed, finding that Taylor “threatened, harassed, and intimidated school employees” with the publication of his song, and upholding the punishment the Committee had chosen.
Subsequently, Taylor and his mother, Dora, sued the school. Here, I’ll focus on the First Amendment claims Taylor brought, although Ms. Bell also brought a Fourteenth Amendment claim alleging that the school had violated het parenting rights. Before the U.S. District Court for the Northern District of Mississippi, both sides sought summary judgment, as they agreed that no contested factual issues remained in the case. In the end, the School Board won, for reasons I’ll explain below. (Interestingly, this isn’t the first time a rap song has been called a threat, only to spark First Amendment arguments on the side of the rapper. I wrote about another such instance in this column, earlier this year.)
The Key Supreme Court Case, Tinker v. Des Moines, and Its Holding
As is the case in the lion’s share of public school speech cases, here too the 1969 case of Tinker v. Des Moines Indep. Cmty. Sch. Dist. plays a role. Its key holding is that “conduct by a student, in class or out of it which for any reason . . . materially disrupts classwork or involves substantial disorder or invasion of the rights of others” is not protected by the First Amendment’s guarantee of freedom of speech. Moreover, the court in Taylor’s case held that school officials can also punish or suppress student speech if it can reasonably be forecast that the speech will cause a substantial disruption of school activities.
The “in class or out of it” language from Tinker has proven particularly important in the age of the Internet, where students’ communications may appear on Facebook page or YouTube postings that are accessed by students off-campus. And due to this language, the court in Taylor’s case had no trouble applying Tinker to Taylor’s Facebook and YouTube postings.
(Interestingly, though, the court in Taylor’s case suggested that linking such postings to schools might be much problematic if the postings had not been intended by the person who first posted them to reach the school, and if the person had not done anything—such as sharing the postings with another student—to increase the chance that the postings would reach the school.
The court bolstered its application of Tinker in this setting by citing a set of prior federal appellate court cases involving students’ drawings, stories, and Instant messages referencing violence that all invoked Tinker.
A possible alternative test that a court might theoretically—but, I think, erroneously—apply here is the “true threat” standard, which I discussed in this earlier column for Justia’s Verdict.
Here, it seems unlikely that Taylor’s rap song lyrics constituted true threats. First, the references to violence were mixed in with numerous other complaints about the coaches at issue, many of them petty. (Readers may want to look to footnote 3 of the opinion for details.) Moreover, it seems unlikely that a truly serious threat would be made in song. And, finally, the lyrics do not actual threaten that the singer will perform the acts he describes—except insofar as Taylor threatened to “hit ya with my ruler.” Granted, other lyrics are threatening, but they don’t involve a threat by Taylor. Instead, they are phrased in the passive voice, saying that the coaches “gonna get a pistol in your mouth,” and urging students to “[put your] middle fingers up if you want to cap that nigga.” Thus, Taylor might well have won his case under a “true threats” test.
However, the test that was actually—and properly, under current law—applied was Tinker’s, and under that test, Taylor’s suspension must stand. Relevant to the judge’s application of Tinker was testimony from the two coaches at issue, who testified that they had felt threatened by the songs, and that the songs had adversely affected their teaching style. The court also found, under Tinker, that the song, giving the allegations it contains, would foreseeably—and actually did—cause a material and substantial disruption at the school.
An Appeal Is Planned, and Taylor May Prevail
As the always-excellent site The First Amendment Center has reported, an appeal is in the works, and Taylor’s attorney, Scott W. Colom, has some interesting points to make, according to the Center’s reportage. In particular, Colon indicated to the Center that he’ll push hard on the fact that this was a song with literary merit (and not, say, a crude face-to-face threat, with no such merit).
Colom also suggested to the Center that he will emphasize the strong facts on his side, such as these: (1) Even one of the coaches who were targets of the song did not take the song seriously, referring to it as “just music.” (2) If the school saw Taylor as a dangerous criminal, it didn’t act like it; it contacted a School Board committee, not the police, after they learned about the song, and did not search him or his locker. (3) Also undermining any suggestion of Taylor’s dangerousness and/or disruptiveness, the principal drove him home, and allowed him to attend school for part of the day before suspending him. Putting these facts together, as Colom has, suggests that Taylor had been, at most, a bit of a nuisance to the school, but not at a level that ought to trigger Tinker.