School tries to punish off-campus student speech


Growing up in Sri Lanka, I went to a private school that had rules for how one should behave and what one could do even outside of school hours and off school property. For example, one could not go to see films on weekdays because one was supposed to be studying and not indulging in such frivolous behavior. My parents ignored this rule because I was doing well in school anyway.

I recall one occasion when I was at the theater and saw with alarm that the principal was also there and that he had seen me. Sure enough, the next day I got a message to see him in his office and he gave me a dressing down and a reminder of the rule. It did not matter to him that he had seen that I had gone to see the film with my parents.

In the US there does not exist such a broad reach of school administrators over the lives of students, but there have been some efforts to control the off-campus speech of public school students, especially online speech that can now be seen and monitored by anyone.

Clay Calvert of the University of Florida writes about these efforts. While court cases have sometimes gone against public school officials and upheld the free speech rights of students, the US Supreme Court has not as yet addressed the issue of off-campus speech.

A case in point is the Supreme Court’s famous 1969 proclamation in Tinker v Des Moines Independent Community School District that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

In this case, a divided court upheld the right of students to wear to school black armbands emblazoned with peace signs as a form of political protest against the war in Vietnam. The majority reasoned that such speech could be stopped only if school officials had actual facts to believe it would lead to a substantial and material disruption of the educational atmosphere.

But Tinker was an on-campus speech case. And although the Supreme Court has considered three more student speech cases since Tinker, none involved either off-campus or digital expression.

But this could change with the case of Taylor Bell, a Mississippi high school student who posted a video criticizing two male teachers for sexually harassing female minor students. The school punished him for allegedly threatening the two teachers and the Fifth Circuit Court of Appeals narrowly ruled that his First Amendment rights were not violated by that action.

In November of last year, Bell filed an appeal with the US Supreme Court but they have not decided whether to accept the case. If they do, it will be an important case that establishes what free speech rights students have when they are not in school.

It seems to me that when off campus, students should have the same rights and be subjected to the same restrictions as any other person. School administrators are notoriously capricious and overly eager to clamp down on student behaviors and they should not be allowed to censor student speech off-campus.

Comments

  1. sonofrojblake says

    Publishing a video effectively calling a teacher in a public school a paedophile could reasonably be called defamation (assuming, obviously, that the allegation is false), and specifically defamatory per se on grounds of allegations or imputations of criminal activity and allegations or imputations “injurious to another in their trade, business, or profession” – surely it’s hard to go on being a teacher with that sort of allegation hanging over you. But hey, I’m not a lawyer. The problem with that stuff is obviously that the teachers are unlikely to be able to afford to sue to protect their reputation so… what? Should the school do it? Or should anyone be able to say anything as long as the target of their ire can’t afford a lawyer?

    Obviously if the allegations are true then all bets are off – the truth is no libel/slander.

  2. Melvin says

    “The problem with that stuff is obviously that the teachers are unlikely to be able to afford to sue to protect their reputation so… what? Should the school do it?”

    Interesting question, but not exactly the point. Their is a significant difference between defending a teacher and punishing a student.

  3. moarscienceplz says

    I can’t understand the words in his rap, but the court documents say this:

    In the recording, Bell names the two teachers and describes violent acts to be carried out against them.

    (emphasis mine)

    If true, this takes away a pure free speech defense. Promoting violence should not be anyone’s right. Whether the punishment he got was appropriate, I don’t know, but if he was an adult who threatened violence on his own time and his employer fired him, I would not consider that necessarily a violation of his 1st Amendment rights.

  4. Crimson Clupeidae says

    There was also the dubious ruing in the “Bong Hits 4 Jesus” case. That was off campus, but technically occurred during a school event, if I recall. I still think it was an over reach on the part of the school administration.

  5. Holms says

    I don’t see how incitements to violence are exempt from restraint if they are in the form of a song.

  6. moarscienceplz says

    oolon #4

    He didn’t name the coaches, it was a rap about them “perving” on the girls.

    Sorry, that is dead wrong.
    I was able to read deeper in to the opinion of the Fifth Circuit Court of Appeals, here, which contains a transcript provided by Bell himself. it includes these lines:

    that pussy ass nigga W[.] got me turned up the fucking max

    and

    What the hell was they thinking when they hired Mr.R[.]
    dreadlock Bobby Hill the second

    Please note that W[.] and Mr.R[.] are redactions the court itself did to the transcript. Also that Mr.R[.]’s name rhymes with “second”, so it’s probably something like “Redmond”. Bell did include the coaches’ names.

    The opinion also includes this:

    At the very least, this incredibly profane and vulgar rap recording had
    at least four instances of threatening, harassing, and intimidating language
    against the two coaches:
    1. “betta watch your back / I’m a serve this nigga, like I
    serve the junkies with some crack”;
    2. “Run up on T-Bizzle / I’m going to hit you with my rueger”;
    3. “you fucking with the wrong one / going to get a pistol
    down your mouth / Boww”; and

    4. “middle fingers up if you want to cap that nigga /
    middle fingers up / he get no mercy nigga”.

    Bell’s use of “rueger” [sic] references a firearm manufactured by Sturm, Ruger
    & Co.; to “cap” someone is slang for “shoot”.

    Bell insists he was only “foreshadowing something that might happen”, which sounds an awful lot like the excuses the right wing radio blowhards use whenever another abortion clinic gets attacked and people get murdered.

    Just at what point can “free expression” trump public safety, oolon?

  7. EnlightenmentLiberal says

    Judging purely from what I’ve read here, incitement charges seem highly unlikely. AFAIK, and I am not an expert or lawyer, there needs to be a “reasonable person” expectation that the speech is likely to move others to commit violence in an immediate timeframe, and that is not present here.

    However, there is still the “true threats” angle, and the kid seems pretty boned. The kid mentioned specific names and specific methods of violence. AFAIK, it’s not open and shut, but my guess is that the kid is in a bad spot legally on a possible “true threats” charge.

    As for defamation? I think it depends a lot on the state. Arguably, the teachers are not public figures, which means a defamation civil suit is easier to win for the teachers against the student.

  8. Mano Singham says

    I want to emphasize that the point of my post was not to weigh the merits of the student’s words. I was saying that any adjudication (and possible punishment) of the student’s statements should not be left to school administrators but handled though the normal legal channels.

  9. sonofrojblake says

    The point of my response was that on a teacher’s salary, can anyone afford the “normal legal channels”? And if not, what then?

  10. Mano Singham says

    sonofrojblake,

    If there is a serious threat of violence, then it is no longer a civil matter and the prosecutors take over. If it is a defamation case, then yes, the person being defamed has to take legal action. Those are the rules that apply to all of us. Why should student speech be treated differently?

  11. doublereed says

    Schools are supposed to be schools, not prisons.

    That’s the actual issue here. In America, we basically treat our schools like prisons. Of course school officials shouldn’t be involved in crap like that. It’s none of their business.

    I remember when colleges were asking athletes for their social media passwords so that they could control/monitor their online presence. It’s sickening and has no place in education.

  12. deepak shetty says

    I was saying that any adjudication (and possible punishment) of the student’s statements should not be left to school administrators

    Based on #7 , If violence was threatened , then the school administrators can and should act – irrespective of the legal adjudication of the threat (which by nature would demand more stringent evidence of intent)
    There is no way a school administrator can let “2. “Run up on T-Bizzle / I’m going to hit you with my rueger”;
    3. “you fucking with the wrong one / going to get a pistol down your mouth ” be allowed to be said to teachers but in a court of law I can see that artistic license / intent etc may lead to innocent verdict.
    I would think this is true even in places of employment

  13. StevoR says

    Hmm ..Looking at the lyrics and what the student here is saying – based mainly on #7. moarscienceplz – it looks to me more like Hate speech than Free speech – a distinction I think is worth making and two things that should be treated very differently.

    Free speech permitted as much as possible with a few notable exceptions (e.g. libel, yelling fire in crowded theatre, deliberately lying about medical treatments, false advertising, etc .. ) versus Hate speech which really should not be allowed or encouraged or supported at all.

  14. sonofrojblake says

    As I understand it, StevoR, while not encouraging or supporting hate speech, unlike the many European countries that make it illegal, it’s permitted (indeed , a Constitutionally guaranteed right) in the US.

    The entire continued existence of the Westboro Baptist Church is pretty much predicated on this fact.

  15. StevoR says

    @ ^ sonofrojblake : Yep. Fair enough. There’s a certain amount of truth in that. It can be hard to decide where to draw the line in a lot of ways.

Leave a Reply

Your email address will not be published. Required fields are marked *