Taylor Bell v. Itawamba County School Board

concurring:

This case involves two serious problems that arise all too frequently in today’s classrooms: violence and sexual harassment. Judge, Dennis’s dissent points out that the harassment of female students is a matter of vital public concern that Bell’s song sought to expose. The problem for Bell is that his song — with its graphic discussion of violence against the coaches— goes well beyond blowing the whistle on the alleged harassment.

Judge Dennis’s dissent contends that these whistleblowing aspects of the song nonetheless entitle the speech to “special protection” under the First Amendment. Dissent at 403, 410. It treats this argument as a separate basis for ruling in Bell’s favor. But fitting this case within Snyder v. Phelps, public employee speech cases like Pickering, and the litany of other cited cases assumes that Tinker is not implicated. Tinker, of course, involved speech on not just a matter of public concern, but the public concern of its day — the *403war in Vietnam. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Yet the Court still balanced the value of that speech against its impact on the learning environment. See id. at 509, 89 S.Ct. 733. That disruption analysis may well have come out differently had the Tinkers combined their armband protest with talk of violence. Identifying some aspect of Bell’s song that addresses a matter of public concern therefore is not enough to elevate it above the Tinker framework unless Tinker does not apply to this type of off-campus speech (in which case the speech would enjoy First Amendment protection from school discipline so long as it constitutes any form of protected speech, not just the “highest rung”).

Whichever First Amendment doctrine one tries to latch onto, the inescapable question is thus whether Tinker’s balancing approach governs “off-campus” student speech that is directed at the school community. For the reasons discussed in the majority opinion, along with the views expressed by every other circuit that has taken a position on this issue, I agree that it does, at least when the speech is threatening, harassing, and intimidating as it is here.

Broader questions raised by off-campus speech will be left for another day. That day is coming soon, however, and this court or the higher one will need to provide clear guidance for students, teachers, and school administrators that balances students’ First Amendment rights that Tinker rightly recognized with the vital need to foster a school environment conducive to learning. That task will not be easy in light of the pervasive use of social media among students and the disruptive effect on learning that such speech can have when it is directed at fellow students and educators. Indeed, although Judge Dennis’s dissent extols the aspects of Bell’s song that sought to combat sexual harassment, the blanket rule it advocates — one that would deprive schools of any authority to discipline students for off-campus speech published on social media no matter how much it disrupts the learning environment — would allow sexual harassment and ferocious cyberbullying that affect our classrooms to go unchecked. See Morrow v. Balaski, 719 F.3d 160, 164 (3d Cir.2013) (describing multiple cyberbullying incidents in which students were threatened by phone and on MySpace by another student); S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Disk, 696 F.3d 771, 773 (8th Cir.2012) (explaining that students’ posts on a blog they created “contained a variety of offensive and racist comments as well as sexually explicit and degrading comments about particular female classmates, whom they identified by name”); Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565, 568 (4th Cir.2011) (detailing online bullying incident in which high school students created web-page called “Students Against Shay’s Herpes” in reference to another high school student).

With these additional observations, I join the majority opinion.

dissenting:

Although mischaracterizing itself as “narrow” in scope, the en banc majority opinion broadly proclaims that a public school board is constitutionally empowered to punish a student whistleblower for his purely off-campus Internet speech publicizing a matter of public concern. As if to enforce the adage that “children should be seen and not heard,” the majority opinion *404holds that the Itawamba County School Board did not violate the First Amendment when it suspended high school senior Taylor Bell for composing and posting a rap song on the Internet using his home computer during non-school hours, which criticized two male teachers for their repeated sexual harassment of minor female students. In my view, the majority opinion commits serious constitutional and summary-judgment procedural errors because: (1) Bell is entitled to summary judgment because his off-campus rap song was specially protected speech on a matter of public concern; (2) the School Board was not authorized by Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), to censor students’ off-campus online speech; and (3) even assuming arguendo that Tinker granted the School Board power to censor such speech, the School Board was not entitled to summary judgment under Tinker, because the evidence, viewed in the light favorable to the non-movant, Bell, does not support the conclusion that Bell’s speech caused a substantial disruption of school activities or justified a reasonable forecast of such a disruption by school officials. The majority opinion thereby denigrates and undermines not only Bell’s First Amendment right to engage in off-campus online criticism on matters of public concern but also the rights of untold numbers of other public school students in our jurisdiction to scrutinize the world around them and likewise express their off-campus online criticism on matters of public concern. In doing so, the majority opinion obliterates the historically significant distinction between the household and the schoolyard by permitting a school policy to supplant parental authority over the propriety of a child’s expressive activities on the Internet outside of school, expanding schools’ censorial authority from the campus and the teacher’s classroom to the home and the child’s bedroom.

As detailed herein, the majority opinion commits a number of fundamental errors that necessitate highlighting lest readers be misinformed by its version of the relevant facts and law. First and foremost, the majority opinion erroneously fails to acknowledge that Bell’s rap song constitutes speech on “a matter of public concern” and therefore “occupies the highest rung of the hierarchy of First Amendment values.” See Snyder v. Phelps, 562 U.S. 443, 452, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (internal quotation marks and citation omitted). Instead, by narrowly focusing its analysis on a few, plainly rhetorical lyrics in Bell’s song, the majority opinion wholly glosses over the urgent social issue that Bell’s song lays barp and thus flouts Supreme Court precedent requiring us to evaluate whether “the overall thrust and dominant, theme of [Bell’s song] spoke to broader public issues” — which it did. See id. at 454, 131 S.Ct. 1207.

Second, in drastically expanding the scope of schools’ authority to regulate students’ off-campus speech, the majority opinion disregards Supreme Court precedent establishing that minors are entitled to “significant” First Amendment protection, including the right to engage in speech about violence or depicting violence, and that the government does not enjoy any “free-floating power to restrict the ideas to which children may be exposed.” See Brown v. Entm’t Merchants Ass’n, — U.S. -, 131 S.Ct. 2729, 2735-36, 180 L.Ed.2d 708 (2011). Similarly, the majority opinion also altogether fails to consider Supreme Court precedents that substantially restrict the government’s ability to regulate Internet speech, Reno v. American Civil Liberties Union, 521 U.S. 844, 868-70, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the extent to which the *405majority opinion’s vague framework fails to provide constitutionally adequate notice of when student speech crosses the line between permissible and punishable off-campus expression, see id. at 871-72, 117 S.Ct. 2329; accord Brown, 131 S.Ct. at 2744-46 (Alito, J., concurring). Further, by deriving its rule from a school policy that focuses on whether a layperson might view Bell’s speech as “threatening,” “harassing,” or “intimidating,” the majority opinion ignores First Amendment precedents demanding that the government prove more than mere negligence before imposing penalties for so-called “threatening” speech. See Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003); N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 904, 928-29, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982).

Third, by holding that the Tinker framework applies to off-campus speech like Bell’s, the majority opinion simply ignores that Tinker’s holding and its sui generis “substantial-disruption” framework are expressly grounded in “the special characteristics of the school environment,” Tinker v. Des Moines Indep. Cmty. Sch. Disk, 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and the need to defer to school officials’ authority “to prescribe and control conduct in the schools,” id. at 507, 89 S.Ct. 733 (emphasis added), whereas Bell’s rap song was recorded and released entirely outside the school environment. The Court’s post-Tinker precedents make clear this critical distinction. See, e.g., Morse v. Frederick, 551 U.S. 393, 422, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (Alito, J., concurring) (noting that Tinker allows schools to regulate “in-school student speech ... in a way that would not be constitutional in other settings”). In this regard, the majority opinion also fails to account for the vital fact that the Tinker framework is far too indeterminate of a standard to adequately protect the First Amendment right of students, like Bell, to engage in expressive activities outside of school, as well as their parents’ constitutional right to direct their children’s upbringing and the First Amendment right of adults and children alike to receive students’ speech. In other words, the majority opinion allows schools to police their students’ Internet expression anytime and anywhere — an unprecedented and unnecessary intrusion on students’ rights.

Fourth and finally, the majority opinion also errs in its very application of the Tinker framework. As detailed in the panel majority’s opinion, the summary-judgment evidence simply does not support the conclusion, as required by Tinker, that Bell’s song substantially disrupted school activities or that school officials reasonably could have forecasted that it would do so. In reaching the opposite conclusion, the majority opinion not only fails to view the summary-judgment evidence in the light most favorable to the non-movant, Bell, accord Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 1865, 188 L.Ed.2d 895 (2014), but also dilutes the Tinker “substantial-disruption” framework into an analytic nullity.

Even in the most repressive of dictatorships, the citizenry is “free” to praise their leaders and other people of power or to espouse views consonant with those of their leaders. “Freedom of speech” is thus a hollow guarantee if it permits only praise or state-sponsored propaganda. Freedom of speech exists exactly to protect those who would criticize, passionately and vociferously, the actions of persons in power. But that freedom is denied to Bell by the majority opinion because the persons whose conduct he dared to criticize were school teachers. If left uncorrected, the majority opinion inevitably will encourage school officials to silence student speakers, like Taylor Bell, solely because *406they disagree with the content and form of their speech, particularly when such off-campus speech criticizes school personnel. Such a precedent thereby clearly contravenes the basic principle that, “[i]n our system, students may not be regarded as closed-circuit recipients of only that which the States chooses to communicate. They may not be confined to expression of those sentiments that are officially approved.” Tinker, 393 U.S. at 511, 89 S.Ct. 733. Today, however, the majority opinion exempts the children of Texas, Louisiana, and Mississippi from this long-established constitutional safeguard. Because the majority opinion’s undue deference to a public school board’s assertion of authority to censor the speech of students while not within its custody impinges the very core of our Constitution’s fundamental right to free speech, I respectfully but emphatically dissent.

I.

The en banc majority opinion completely ignores Bell’s argument that the School Board violated his First Amendment rights in punishing him for his rap song, which he contends was protected speech on “a matter of public concern.” Although Bell strenuously made his “speech on a matter of public concern” argument at every opportunity, including at the en banc oral argument, the en banc majority opinion fails to address this critical point. Instead, the majority opinion transforms the Itawamba County School Board disciplinary policy into an unprecedented rule of constitutional law that effectively permits school officials across our Circuit to punish a student’s protest of teacher misconduct regardless of when or where the speech occurs and regardless of whether the student speaker is, at the time of the speech, an adult or a minor fully within the custody and control of his or her parents. I respectfully but strongly disagree with the majority opinion’s silent rejection of Bell’s argument, not only because Bell’s argument is meritorious, but also because the opinion’s sub silentio decision of the issue presented has led it into several serious and unfortunate constitutional errors.

Speech on “matters of public concern” is “at the heart of the First Amendment’s protection.” Snyder v. Phelps, 562 U.S. 443, 451-52, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (internal quotation marks and citation omitted). “The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ ” Id. at 452, 131 S.Ct. 1207 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). “That is because ‘speech concerning public affairs is more than self-expression; it is the essence of self-government.’ ” Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)). “Accordingly, ‘speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.’ ” Id. (quoting Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).

Although the Supreme Court has noted that “the boundaries of the public concern test are not well defined,” San Diego v. Roe, 543 U.S. 77, 83, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam), it has “articulated some guiding principles, principles that accord broad protection to speech to ensure that courts themselves do not become inadvertent censors,” Snyder, 562 U.S. at 452, 131 S.Ct. 1207. “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, *407a subject of general interest and of value and concern to the public.” Id. at 453, 131 S.Ct. 1207 (internal quotation marks and citations omitted). “The arguably ‘inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.’ ” Id. (quoting Rankin v. McPherson, 483 U.S. 378, 387, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)).

Determining whether speech involves a matter of public concern “requires us to examine ‘the content, form, and context’ of th[e] speech, as revealed by the record as a whole.” Id. (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985)). “As in other First Amendment cases, the court is obligated ‘to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Id. (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)). “In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.” Id. at 454, 131 S.Ct. 1207.

In Snyder, the Supreme Court applied this framework to hold that the First Amendment barred an aggrieved father from recovering for, inter alia, intentional infliction of emotional distress, against an anti-gay church congregation whose picketing coincided with the funeral of his son, who was a marine, notwithstanding the alleged outrageousness and hurtfulness of the picketers’ speech to Snyder.1 562 U.S. at 460,131 S.Ct. 1207. Specifically, in that ease, Fred Phelps, the founder of the Westboro Baptist Church, traveled to Maryland, along with six parishioners, in order to hold a protest on public property 1,000 feet from the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. Id. at 448, 131 S.Ct. 1207. The picketing was conducted under police supervision and out of the sight of those at the church. Id. at 457, 131 S.Ct. 1207. The protest was not unruly; there was no shouting, profanity, or violence. Id. The record confirms that any "distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. Id. The picketers peacefully displayed signs that read “God Hates the USA/ Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank . God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.” Id. at 448, 131 S.Ct. 1207. The Westboro picketers displayed these signs for about 30 minutes before the funeral began. Id. at 449,131 S.Ct. 1207.

Snyder’s father thereafter filed a diversity action against Phelps and other picketers alleging, inter alia, state tort claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. Id. at 449-50, 131 S.Ct. 1207. After a jury awarded millions of dollars in damages, Phelps and his congregants argued that they were entitled to judgment as a matter of law because the First Amendment fully protected their speech. Id. at 450, 131 S.Ct. 1207. The district *408court reduced the punitive damages award, but left the verdict otherwise intact. Id. The Fourth Circuit reversed, concluding that Westboro’s statements were entitled to First Amendment protection because those statements “were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.” Id. at 451,131 S.Ct. 1207.

The Supreme Court granted certiorari and affirmed. Id. at 461, 131 S.Ct. 1207. Evaluating the “content, form and context” of the congregants’ protest, the Court concluded that Westboro’s speech addressed a matter of public concern and was entitled to “special protection” under the First Amendment, thus barring Snyder from recovering in tort on the basis of the “outrageousness” of their speech. Id. at 458,131 S.Ct. 1207. According to the Court:

Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 [109 S.Ct. 2533, 105 L.Ed.2d 342] (1989). Indeed, “the point of all speech protection ... is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,[], 515 U.S. 557, 574 [115 S.Ct. 2338, 132 L.Ed.2d 487] (1995).

Id. Further, the Court concluded:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with- the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

Id. at 460-461, 131 S.Ct. 1207.

Applying these principles to the instant case, the record indisputably reveals that Bell’s speech addressed a matter of public concern. Bell composed his song after a number of his female friends at school informed him that Coaches Wildmon and Rainey had frequently sexually harassed them during school. The lyrics of Bell’s song2 describe in detail the female students’ allegations of sexual misconduct, e.g., describing Coach Wildmon as “telling students that they [were] sexy,” and Coach Rainey as “rubbing on the black girls’ ears in the gym.” With a darkly parodie — and, by many standards, crude — tone, the song ridicules the coaches for their outrageously inappropriate conduct with the female students, e.g., describing one coach as having “drool running down [his] mouth” while he “look[s] down girls’ shirts,” and positing that Wildmon is “fucking around” *409because of his wife’s appearance (the song states that “his wife ain’t got no titties”).3 By describing Rainey as “Bobby Hill the second,” the song also draws parallels between the coaches’ alleged sexual misconduct and the alleged sexual misconduct of a former Itawamba coach, Bobby Hill, who was arrested the previous year for sending sexually explicit text messages to a female student. Although the song does contain some violent lyrics, the song’s overall “content” is indisputably a darkly sardonic but impassioned protest of two teachers’ alleged sexual misconduct, e.g., opining that Rainey is “a fool/30 years old fucking with students at the school.” That Bell’s song may fall short of the School Board’s aesthetic preferences for socio-political commentary is not relevant to determining whether the rap song’s content addresses a matter of public concern. See, e.g., Snyder, 562 U.S. at 458, 131 S.Ct. 1207 (observing that “[t]he arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern”) (internal quotation marks omitted). In Snyder, the Supreme Court explicitly rejected the argument that the crude and egregiously offensive messages on the anti-gay protesters’ signs — which included “Fag Troops,” “God Hates the USA/Thank God for 9/11” and “Thank God for Dead Soldiers” — should affect the inquiry into whether the signs addressed a matter of public concern. Id. at 454, 131 S.Ct. 1207. According to the Court, “[wjhile these messages may fall short of refined social or political commentary, the issues they highlight ... are matters of public import.” Id. So much more so here where Bell addresses a serious issue of alleged teacher sexual misconduct toward minor students. Indeed, similar to Snyder, even if some of Bell’s lyrics were crude and contained violent imagery, “th[is] would not change the fact that the overall thrust and dominant theme of [Bell’s song] spoke to broader public issues.” See