Ed Law Briefly: Student’s Rap Song Featuring Profane Lyrics About School Personnel Is Protected Under the First Amendment

RCEd Commentary

Background: A high school senior in 2011 recorded a rap song containing lyrics about two high school coaches engaging in sexually inappropriate activity with female students at school. The video of the song was placed on both Facebook and YouTube. The song contained vulgar language and suggested that the coaches might face violent retaliation for their inappropriate sexual behavior. Among the lyrics: “looking down girls’ shirts/ drool running down your mouth/ messing with wrong one / going to get a pistol down your mouth . . . middle fingers up if you can’t stand that nigga/ middle fingers up if you want to cap that nigga.”

The Itawamba (Mississippi) County School District coaches felt they were being intimidated and harassed by the song. The principal and superintendent accused the student, Taylor Bell, of creating false accusations. He was suspended and later sent from Itawamba Agricultural High School to an alternative school. Bell sued in federal district court but lost. The trial court said the song caused a substantial disruption under Tinker v. Des Moines Independent Community School District.  The student appealed the decision, arguing that he was speaking about a matter of important concern involving sexual harassment.

Issue: Was the student’s off-campus rap song protected speech under the First Amendment to the United States Constitution, or was the district correct to punish him?

Legal Principles: Although the U.S. Supreme Court has not decided a student off-campus speech case yet, several lower federal courts have declared that students’ off-campus speech must create a substantial disruption at school before school officials can discipline anyone. Also, speech that is found to create a “true threat” is not protected under the First Amendment. 

That standard emerges from the Tinker case mentioned above, which dealt with students wearing black arm bands to protest of the Vietnam War. In that 1969 decision, the U.S. Supreme Court explained that students retain free speech rights in school, but teachers and administrators can properly forbid activities that cause significant disruptions or have the potential to do so.

Outcome: The Fifth U.S. Circuit Court of Appeals ruled that the Bell’s speech was protected by the First Amendment because it was recorded off campus using his home computer. The court did not find that the song created a substantial disruption.  Further, the violent lyrics were rhetorical and thus could not be viewed as a serious threat.  The case was sent back to the lower court for further proceedings.

Lessons for Principals and Teachers:

• This case suggests the difficulty school leaders have in determining how far outside the schoolhouse gate their authority extends. Courts have generally required evidence of a substantial disruption on campus before students can be disciplined for off-campus speech.

• When a student’s speech constitutes a true threat, it will not be protected under the First Amendment.

• Speech involves a matter of public concern when it relates to a matter of political or social importance.

U.S. Court of Appeals for the 5th Circuit
Bell v. Itawamba County School District, 2014 WL 7014371 (2014)

_{Note: This information is not intended as legal advice. Federal and other court decisions can differ depending on what region of the country you live in. State laws also weigh in on certain issues. All cases are for educational purposes only, and meant to demonstrate how courts or administrative agencies have acted in specific instances as well as to provide information that can bolster the overall legal literacy of teachers and administrators. Local school attorneys can provide more detail about local law.}