David L. Hudson Jr.: Case of student rapper deserves close examination

  The case of a former high school student from Mississippi punished for a rap song he created off-campus and posted online has the potential to be the most significant K-12 student speech case in several years.

  A divided full panel of the 5th U.S. Circuit Court of Appeals recently ruled in Bell v. Itawamba County School Board that school officials were justified because they could reasonably believed that the song would create a substantial disruption at school.

  In January 2011, senior Taylor Bell created the song “PSK The Truth Needs to be Told.”  With some crude and explicit language, Bell relates his animosity toward two white coaches at his high school who allegedly made inappropriate sexual remarks to black female students.

  School officials ended up expelling Bell, saying his off-campus rap song amounted to harassing, intimidating, and threatening school officials.

  Bell sued, alleging a violation of his free-speech rights and the case has bounced between various levels of the courts. A federal district court ruled against Bell, but a divided three-judge panel of the 5th Circuit reinstated his lawsuit and ruled in his favor.

  However, school officials sought full review by the 5th Circuit and, citing much of the song’s explicit language, ruled in favor of school officials, focusing largely on the song’s explicit lyrics and deference to the judgment of school officials in the age of school shootings.

  However, several judges dissented.  Among those supporting Bell’s claim, the judges noted:

-Taylor Bell was, in a sense, a “whistleblower” who exposed what may have been extremely inappropriate conduct by coaches at the school – who could face disciplinary action of Bell’s allegations were supportable.

-Bell’s expression was rap music – a form of music ensconced with hyperbole and braggadocio. Many lyrics are more figurative than literal.  As the U.S. Supreme Court explained years ago in Watts v. United States (1969), hyperbole is not the same thing as a truly threatening speech.

-The music was created entirely off-campus at a music studio. The lower courts are deeply divided over just how far school authority extends with regard to purely off-campus speech that has a target audience of many in the school community.

-The high purpose of the First Amendment is that it gives citizens the right to criticize government officials. As Judge James Dennis wrote in his dissent to the en banc ruling in Bell’s case: “’Freedom of speech’ is thus a hollow guarantee if it permits only praise or state-sponsored propaganda.”

  About the author: David L. Hudson, Jr. is the Ombudsman for the Newseum Institute First Amendment Center. He is the author of Let The Students Speak!: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011) and Teen Legal Rights.

  This article was published by the Newseum Institute.