The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Adam Liptak (New York Times) wrote a couple of weeks ago about an interesting amicus brief in Bell v. Itawamba County School Board. Bell, then a high school student, wrote and posted on YouTube a rap song that the school found to be "threatening, harassing, and intimidating language" towards two coaches. Some friends of Bell's had accused the coaches of sexually harassing them; Bell's song began with
Let me tell you a little story about these Itawamba coaches
and then mentioned the coaches by name. It also had lines that seem to specifically refer to violence against the coaches:
betta watch your back/I'm a serve this nigga, like I serve the junkies with some crack …
Run up on T-Bizzle [Bell's stage name]/I'm going to hit you with my rueger …
you fucking with the wrong one/going to get a pistol down your mouth/Boww …
middle fingers up if you want to cap that nigga/middle fingers up/he get no mercy nigga ….
The school suspended Bell, and transfered him to an "alternative school." Bell sued, claiming that the school violated his First Amendment rights, but a Fifth Circuit en banc decision upheld the school's actions. A few quick thoughts:
1. I generally much like Liptak's work, but I think that part of the column may have been misleading to some readers:
Judge Rhesa Hawkins Barksdale, writing for the majority, said the song was "incredibly profane and vulgar" and contained "numerous spelling and grammatical errors."
"If there is to be education," Judge Barksdale wrote, "such conduct cannot be permitted."
I think some readers could perceive "such conduct" that "cannot be permitted" as referring to the song's being "incredibly profane and vulgar," and to its containing "numerous spelling and grammatical errors." But the majority was arguing that what cannot be permitted is "threatening, harassing, and intimidating a teacher," not off-campus profanity and vulgarity as such. ("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: ….") And the reference to spelling and grammatical errors in Bell's version of the song was even less connected to any explanation of why Bell's conduct "cannot be permitted":
Although there are three different versions of the transcribed rap recording in the summary-judgment record, the school board stipulated, at the preliminary-injunction hearing for this action, to the accuracy of the following version provided by Bell, who refers to himself in the recording as "T-Bizzle". (Accordingly, except for deleting part of both coaches' names, the numerous spelling and grammatical errors in the following version are not noted.)
Liptak may have been just trying to capture the majority's disapproval of the song, and the tone of that disapproval; but it's important to note that the conduct that the court condemned wasn't simply profanity or vulgarity, but the song's perceived threatening and intimidating character. (The column did mention that the school had perceived the song as threatening and intimidating, and quoted the "Going to get a pistol down your mouth" line, so some readers may well have realized that the court's decision was focused on that; but other readers might not have understood that.) In-school profane or vulgar speech can be punished by school authorities, Bethel School Dist. No. 403 v. Fraser, but the Supreme Court has never so held as to outside-school speech, and the Fifth Circuit didn't rely on Fraser in this case.
2. I'm also not persuaded by the brief's "I shot a man in Reno" argument:
The themes found in Taylor Bell's song, and in rap generally, are in fact common across popular culture. In Folsom Prison Blues, country artist Johnny Cash famously sang, "I shot a man in Reno just to watch him die." Johnny Cash, Folsom Prison Blues, on At San Quentin (Columbia Records 1969). Another first-person account of violence recorded by Cash, Delia's Gone, includes lines like "First time I shot her, I shot her in the side. / Hard to watch her suffer but with the second shot she died." Johnny Cash, Delia's Gone, on The Sounds of Johnny Cash (Columbia Records 1962).
Cash, of course, was no more guilty of these crimes than Eric Clapton and Bob Marley were of killing police officers when they recorded their respective versions of I Shot the Sheriff. Eric Clapton, I Shot the Sheriff, on 461 Ocean Boluevard (RSO 1974); Bob Marley, I Shot the Sheriff, on Burnin' Island Records 1973).
But songs about hypothetical people (and, in the case of Folsom Prison Blues, songs expressing regret rather than anger) don't strike me as quite analogous to songs that are (1) about a particular person (2) who might reasonably assume the singer is angry at him (3) and who lives, works, or studies near the singer. If Johnny Cash had sang "I'm going to shoot a man in Reno," or even "I shot a man in Reno," mentioning a specific man with whom he had a beef and who was going to Reno, that would have been a very different song.
More broadly, the brief's implication that the school is punishing Bell because rap music is associated with blacks, and that it wouldn't have punished someone singing a similar non-rap song, strikes me as unlikely. If school officials saw that a coach, already the target of anger and controversy, was named in a country-western song with lyrics such as "better watch your back," "you're screwing with the wrong one," "I'm goin' to hit you with my Ruger," "goin' to get a pistol down your mouth," "middle fingers up if you want to shoot that man," "he'll get no mercy" and so on, I don't think the officials' reactions would likely be "oh, good ole boys will be good ole boys." Perhaps I'm wrong, but I suspect that they would see such a song about a colleague as an attempt to "threaten, harass, and intimidat[e]," rather than the second coming of Johnny Cash.
3. This having been said, there may well be good reason for the Court to take the case. Whether and how the Tinker v. Des Moines Indep. School Dist. "substantial disruption" rule—under which K-12 students can be disciplined and even expelled for speech that poses a material likelihood of substantially disrupting the school—applies to speech outside school, is an important and unresolved question. It's one thing to allow limits on speech within school, and another to limit student speech 24/7.
Of course, "true threats" are excluded from First Amendment protection, and can be criminally punished and thus can also lead to lesser punishments, such as school discipline. But the Fifth Circuit expressly declined "to decide whether Bell's speech also constitutes a 'true threat,'" holding that it can be punished even if it isn't a true threat. Perhaps off-campus near-threatening speech related to teachers (or classmates) can be punished by schools even if it isn't a true threat, precisely because it tends to disrupt the school (not just because of its ideology but precisely because it makes people worry about violence). Yet there are also obvious dangers in broadening the category of punishable threats that way, especially without a clear test defining just what speech will be punishable. This is an important issue, and perhaps the Supreme Court should resolve it.
Still, I'm not surprised that the Fifth Circuit took a dim view of Bell's song, and I think it would have taken an equally dim view of a song by a white student written in a traditionally white genre. Student talk of violence about specifically identified teachers or classmates—especially in the context of an existing controversy about which students are angry—is something schools generally worry about, and rightly so (whether or not the worry can constitutionally translate into punishment). And while songs are indeed often fictional and figurative, not declarative statements, the more they talk about specific nearby people and specific recent events, the more they can be reasonably seen as threats of real action, and not just fiction or hyperbole.
Thanks to Al Rodbell for noting the passage in the New York Times article that I discuss in item 1 above.