from the court the admonition here number one is to stay in the market phone so that the recording and we can hear your responses and number two is to answer the questions that the court has successfully and directly as you possibly that and i quote here it should have come as a shock to the parents of five high school seniors that their elected school board had assume suzerainty over their children before and after school to control what students say away from school and if you follow that up with the supreme court's case tanker parts of the most famous to speech case if you read that case carol you can see that the exception that the supreme court recognized was based on the need for the schools to be able to maintain order and control during school hours it the supreme court recognized that you can't have students dropping sco during the middle of teaching are doing a middle of culture but it limited it eliminate that pointed out that it was only because the speech was at a school assembly and you had a captive audience a student stefano practical purposes had to be at the school that is who had the ability to regulate that speech you draw any difference between right why is apologizing well why isn't there at least a fact issue whether this is a true when he said i'm going to hit you with the rig are going to get a pistol down your mouth first of all you and he didn't say would of a dispute about what the words are and also there's no genuine issue of dispute about the fact that it's in the context of music if you were to apply the truth right standard to tailor songs in a row that that's a sincere game with three then there's a whole host of music out there there's now subject to criminal liability i mean just box to hit this thing pointed out that some of the music that i refer you to the bob marley so i shot the sheriff i didn't shoot the deputy and johnny cash i shot a man to watch him die he said now how do you distinguish the fourth circuit and other cases that involve cyberbullying you are the first the first our knowledge is that a parent has a right to be upset about speaks like this but the question is did the government have the ability to regulate what about the decision which held that the school could suspend a student without notice for engaging in that condo or do you find it materially distinguishable here the way you're describing first amendment rights in ink in very over the internet had no public next to it taylor saw was not private speak he put it on you tube he wanted the public to hear that that distinguishes it because he wasn't trying to make a profit it was a private conversation he was trying to bring attention to the public were not before the school board when it made its decision to suspend and put in the alternative school for threatening harassing and intimidating teachers those were kept for another proceeding with the coaches so the school board was dealing with a threat to a teacher now do you think that school boards have to hold some sort of trial before they can discipline a student for threatening harassing and intimidating a teacher well what i would say is first of all though those statements were offered to the school board that when it comes to public speak speech in a public forum where students have same parson memorize of those if you look at the last minute it's have you made this contention before that this is a speech in a public forum because i don't remember reading it i read everything have you previously said this is speech in a public forum as if he's on the street one i believe i don't know if i you don't exact words but from the very beginning what a difference what we are from the very beginning we've contended that this is public sp because he said it's not the state it's the school we're talking about a student or understand it a governmental entity but we're talking about disciplining a high school student based on finding that he threatened and if you look at first of all that is in the context of music i mean i put it to you this is made in difference if it had been on the campus speech on the campus yada if it was all kept space then the tickers to and it would have without a doubt a p consistently by overwhelming majority said that doesn't pop off campus speech it has to when a student sends a message because of social media it travels instantaneously to the school and the students there and of the students who attend that school whether they're on the campus or not how can you have a distinction between off campus and on campus speech when it involves the internet where you are of you have to go back to the purpose i take or take it was never about control of the students here and say it was always about controlling order the school district calling suppose this rap music instead of attacking the teachers had threatened sexual made it very clear in his view that anything that was necessary to protect students was was within the purview of the school's regulation although political whistleblower that concede that thinker applies to off campus speech but i'm going to ask you for a moment too soon argue window that it does and so if it does under the state the school would be required to show that the speech caused a substantial they change their behavior right that's a result not of the lyrics but that's a result of the allegations of misconduct so they had to do it with the no coach testified that i changed my teaching methods because of allegations of misconduct one coach said i was frightened there's no telling what happens these days in the world with violence he said i do not let my basketball team leave the gym until on safely in my car another coach said well when you're a coach you got to have sort of a hands on approach i can't have that anymore so i coach the girls track team but instead of coaching the girls track team i have to send the boys track team over to coach girls track team because of this concern that anything i do any action i take will be perceived as misconduct but the question is the school board had before it and the disciplinary committee had before it the rap recording and the testimony by mr bell that he intended for this to be heard by everyone and that he knew students would get it because all students have cellphones so to harp on and i'll name harp but to concentrate on what the coaches said or didn't say at which proceedings doesn't take into consideration what the school disciplinary committee dealt with in a very measured considerate proceeding and what the school board h dealt with when it heard heard the rap recording and a bit of testimony and root right but the school had this is still have to have factual evidence to show that they acted out of a fear of the steps of destruction are because of missteps disruption in their record so they found threatening intimidating and harassing language they're all teachers now i know the claim is well that's just because the school disciplinary policy says threatening harassing and intimidating teachers constitutes a substantial disruption but they made those findings and we can't require school boards to hold a trial and our court has said that it is judge dennis's written in the cash opinion not much is required to prove the actual disruption you do have to have some facts but that's not a high hill because i'm going to make sure i understand the response you ma point that if you think or applies the facts before the board at that time through the lens of that there was not this evidence of what coaches did is that the point you were making  i'll also add that no court has ever held that the type of disruption you know while ms claims teachers changing the way they coax or the way teach is a type of disruption that ticket was trying to prevent the type of disruption take your what the school board has to deal with in the disciplinary committee has to deal with is the instant that they get this message they can't hold a trial they've got to take proactive as the schools are open and said especially in the background of the increasing gun just point but i my response to that is that it is much worse a blot on a young man's character to have the police come in investigate then it is for him to be suspended for th and the more you push toward a set of separation between on campus and off campus the more you are going to force school administrators to bring in the long arm of the law and i think that is a very bad consequence for the perpetrators who may in fact often be rude certainly redeemable but also just acting out of youthful idio then it's forward but oh we're now here mr griffin may it please this honorable court today the context in which these communications were made is of absolute importance we're dealing with cyber communication that is almost instantaneous we're dealing with communications that occurred one day through mr bell threats on that reached the school the next day who are in assessing whether or not attention lee substantially disruptive effect from those talks of communications cannot does not have the luxury of sitting back and saying let's wait and see does it matter of mr bell put it on facebook or whether one of his friends overheard him singing and down  it on to the net or whether somebody just recorded it does his placement of it on the net have any bearing in this analysis yes your honor a direct effect fact that he did place it on  him we believe evidence by that action that it so if he didn't put it on there but somebody heard him perform in this song in a public venue and put it on there would you still be bringing this case may well would you still have this be defending this ca a language or two third parties that are the decisions where they're talking about the speaker's intent or subject matter and communications to reach but every speech that target everything we say has that possibility of reaching the internet these days so that what's the line a line would be whether there is a direct specific targeted intent of the speaker's speech in this case the song where the song basically said in that language  stick a pistol down your mouth in the present tense your honor i at the size if you didn't say those two statements that we discussed earlier would you still have a right to suspend mr bell because certainly the comments about the coaches could cause a disruption is that your position whether it causes a disruption or not the disruptive effect come from the language that is basically saying this nigga which is blow the head off so calling the coach  nature of it's important what if he wanted to have a black lives matter rally or a blue lives matter rally or some kind of war wanted to speak about whether  would these things might cause disruptions and we know from from the news that sometimes these things cause disruptions with those be captured in your interpretation of tinker to off campus speech or is there a line that separates out those types of things i would distinguish those from what has actually occurred in this case and realizing of course in garland texas in just the last few weeks we're dealing with language that was very insightful to two individuals that's an entirely different matter how do you do your  promote how do you distinguish the distinction comes in the intent of the speaker for language that is very specific and is the significant terms of the violence the use of a specific type of guy on a weapon the type of violence that would be but he said his intent was to draw attention to these coaches and to warn them not to threaten them so if the intent of the speaker is an issue mr bell's intent has not really been challenge nobody's ever actually said that he meant to threaten the c intended to threaten the coaches the relevant inquiry your honor undertaker is whether there was an intent for this to be communicated to the school and whether from that there would be at least a reasonable likelihood of a disruptive effect from those communications mr griffi as a point of clarification i think the cases in the lower courts that have dealt with the sections have said whether reasonable person would perceive that there was a threat of violence it's not based on subjective intend intent is event by the language yes your honor and the courts it can again say that the specific subjective intent really has nothing to do with it it's looking at the objective language and the objective conclusion that one would draw from that here it is believe that the district court specifically undertook a threat analysis it said that i am affirming the school board's finding of threat threatening progressing and or dating communicate was finding of bread was part and parcel of the language from the school board's policy wasn't it wasn't a policy just threatening a razzing in a terminating language the difference there your honor is the school board didn't mindlessly say well let's check out this and not engage in a meaningful analysis they engaged in a meaningful analysis with ample due process provisions provided for full discussion plenary discussion of what occurred they had mr bell his attorney they had the language itself from the i just want to talk to you now maintain that the school board made a finding that there was a true threat y just in violation of this threatening harassing intimidating policy but that there was a truth to it the school board made a finding of threat it said harassing intimidating and threatening language it also said this was disruptive and the school board's findings were picked up by judge neal biggers saying that number one the teacher disruption standard was clearly satisfied this was disruptive effect or there was enough there for the school board to have made a reasonable forecast of a disruption and at the same time the district court affirmed the school board standing of th proof and there has to be factors judge then it is pointed out so clearly in the column to see it in a column decision you have to have more than just if the dixit of a school board say it is because we say it is and this school board did precisely that judge were right it went further about saying this was the rationale and the reason for it and all america their support of finding that it was disruptive the facts that support the disruptive finding are the facts that you had teachers number one that changed their teaching style teachers that were affected by this specifically the language that went to the school instantaneously within a day of its being released on the internet through you tube and facebook you had the full impact that this would have baskets sickly referring to not only shooting but the type of pistol that would be used to shoot or cap someone let me tell jurors they really want to one of the responses you gave the judge you know it's a question they used to quote the distinction lies the speaker as jones brought you back to the objective standard to which you agree so trying to understand what was the anchor of your statement quote the distinction lies in the intent of the speaker the references to mean it or i manage the damage is that there be evidence from the communication of the conclusion that can rationally be reached by the trier of fact that this was intended to reach the school that it did in fact reach the school and had a disruptive  refer i think the cases have dealt with that when they distinguish this entire area this panoply of subjective intent from objective intent that is and family and we know that in alone is the case that's been argued before the supreme court would train trip an argument to justice in the court goes to considerable back and forth with his solicitor driven about subjective in the context of rap resolution i was anticipating that question judge and i'm glad you asked that the a lot of this case and we're all argument and i believe in the briefs of all including all the i miki very clearly dealt with the subject of intent requirement in the criminal statute that was that issue and in this case was the fact that the teachers changed their teaching style doesn't that go to the whether the coaches are touching the women rather than whether or not the coaches are threatened by the violence so i don't understand what you mean by that answer of coach you said i'm scared they were they were in fear because of the language and one said it very specifically said these days you cannot tell what someone means when they say words like this don't know whether or not i'm sorry you ma but whether or not they're having to have males coach women because there's that's not the same that's not relevant is it for this determination that i do not believe was the focus of the remarks they were basically saying i had to pull back from a hands on teaching style i basically had to observe and be a passive coach i could not and disrupt just simply means to break apart they had to break away from and break apart from their teaching style and genuinely disputed issues of fact that were raised at the parliamentary injunction hearing level and there were not at the original panel hearing that took place two years before the panel's decision was rendered and that issue of whether there was a genuine issue of material fact has been repeatedly answered by both counsel that know we did not believe that was a fact issue and we don't just believe that we believe the record the summary judgment record evidence amply supports the it's been on the law for every since most voters as consumers union has in it that for the courts to characterize the protected nature of speech not there on fact is he's correct your honor that's why we deal with it as a pure question of law that is in very nicely to what i wanted to ask you because based on judge graves this question about the threat as i understand it school boards react and they make findings but they don't they're not required to say all right based on a b c indeed this constitutes a true threat under watch based on easy and g n h this constitutes a substantial disruption under tinker it's a trade center et they simply make findings in the we need to take disciplinary action isn't it for the courts then to come back in and look at the record and decide whether the discipline falls under the watch or tinker don't keep the wall between on campus and off campus and and the way that perhaps some have argued in this case and do allow this sort of posting on facebook an otherwise to breach the campus and be treated as if it's on campus speech where does that take i'm thinking of justice alito concurring opinion and the box it for jesus when he talks about  you can restrict speech advocating drug use you can restrict lewd speech on campus drug used speech on campus if we if if we bring the internet into this and facebook postings there seem to  me all of that applies to whatever's posted on the internet too so long as whatever the other standards may be we're trying to make sure subjectively objectively the speaker was trying to reach the audience of the school students doesn't you know whatever the benefit and perhaps persuasiveness that might apply here to what are threats it seems to me is troubling to apply this other categories of speech that can be prohibited by school districts if they are posted on the internet so if you if you're building your house of argument on this idea there's no distinction don't offer those components of your structure as well and troubling to say that off campus postings but on face book advocating drug use and these other things can be regulated by the school so long as they're directed at students the missing element for taker analysis purposes is substantial disruption or the proper ability actually under record to say there's a reasonable forecast that it's rough and if that element is there just south which i believe yes the tanker analysis would be fully applicable to communications that may originate off campus but have a foreseeable a disruptive impact on the campus of that to be more is to not rely on the impact it allowed it seems to me you've started the case at least as well and probably better than i have read to be more relied on just the nature of advocating to was ambiguous but ultimately concludes that it was actually a message best understood as advocating the use of illegal drugs so that wasn't a disruption issue it was a category of speech issue it seems to me and that's the problem seems to me also if you're using off campus as just analogous to the case law it already exists about on campus speech donna that's a good analysis if morse were sought to be the basis for the off campus speech on campus aff morse is not the direct basis more so i see as a very strong pronouncement by our supreme court judge of the autos concurring opinion saying there are certain classifications of speech where we don't even get into tinker we're talking about per se prohibit prohibited instructive along with the poor decision ponce basically in terms of the language that was used very very very not just hateful but language that was specific in terms of his violence that was targeted to this young girl thirteen fourteen times during the course of this speech if that had been done on campus is there a difference in the treatment or the protection that it has under the first amendment from school to discipline as as opposed to of can and i would go back to cash versus mccollum i think there you're dealing with insightful language that could potentially cause student fights it could cause student uproar to be just like the confederate flag it would have that same effect and i believe it would change the analysis on campus with that type of level there can be a distinction between of campus speech and on campus speech while at the same time recognizing that off campus speech can also be unprotected yes or on in the context in which that language was used and this is a classic example because it was not the use of the horrendous term in turn t multiple times in this song that was not the basis for the lower court or the school board or the disciplinary committee's action well does the first amendment protect this student's communication with  students referring to the black race as nigger thirteen times off campus where there is no reference to any of the three key threatening violent  gun related remarks you both were completely absent from this case you have a different case this would be a different factual scenario and off campus i question whether there would be a clear line of authority for the school board to have acted and it probably would not have if it fair to say this is not a case about what other hypotheticals might be about political speech or sexual speech this is a case about i'm going to put a gun down your throat  without the qualifications and tended to reach and actively interested to reach student audience attention but there's a category of speech a student can automatically be disciplined for suggesting either himself or others want to be considering murdering somebody on campus as a category of speech in rap music in a journal and something else that can be prohibited there are extreme cases where the court and this is hypothetical where a court could very clearly say this is so preposterous what five year old could possibly take up and i k forty seven and shoot his kindergarten class and i could see that type of case coming up as a matter of employers ability in the course of a dress that is a backs stop your honor in terms of saying there are certain types of threats that are in anybody's book not plausible not likely and as a matter of law can't be considered to be for the ability of threatening to the  a weapon or capping or anything those that language that is pretty common to rap songs if he had taken that out then the school board would not have been able to punish him  court said even though there were terrible things were said on the sign signs at the pickets were carrying that nevertheless they had the right to express their views on the the main theme their speech which was that america is do becoming demoralized america is approving of homosexuality america is allowing homosexuals in there and the armed services that was their main thing even though that part of it was very hurtful to the snyder family who were trying to have a few of them want to bury their poured dead son the supreme court said never the less we have to if if they did not do anything but that expressed their view about the terrible things that are happening in this country because god is punishing us for approving of homosexuality they have a right to say that and they would they did that on public property and they spoke on a matter of public concern and we have to own that even though it might be distasteful to some of us because if we don't we can't allow freedom of speech own matters that that that matter very much to us in governing ourselves as a democracy so how can you say that that you have the right to punish them simply because he allowed some boger and violent imagery and words to to be part of his his main speech which was against molesting female students use we do not take that position our position is that when threats are made in the specific context of putting up pistol in your mouth in the active tense of speaker to recipient and in the context of putting a ruger hitting you with my rugrats a storm and rug pistol that will blow a nine millimeter hole in a body those are very specific targeted and there is no other way to look at them other than matters of physical violence and make him now to answer to answer your question this is not a school board saying we disagreed with the tenor and the tone and we don't like that language use and and we're offended this is not a matter of mere offense this is a matter of the school board taking immediate and proper proactive action of mediately at the point this communication reached the personal animosity between bell and nice coaches before this happened that bell had had not had any disciplinary things on his record his t and go home on a school bus nobody called the police nobody thought this that bill himself was going to be a threat to these coaches isn't that right i know you if i may say from prague course of dealing up i understand the question before you even asked and i think it's a very good one and i think what you're asking is this are we dealing with a situation where a school board is simply that offended by something as decided to shut down a student with censorship no  we dealing with a matter in which the school board with its heavy responsibility in the context of a post columbine violence in schools culture that has been kept the horrendous events at sandy hook and one hundred one hundred shootings involving guns in public schools we're dealing with that type of context and only in the specific context of the facts of this case but we're not dealing with the school board say we are offended by the language that goes to the heart of first amendment protection and that is protected speech that i raney's testimony is at the time he testified at the hearing on the polygamy injunction he said that i never listened to the song i've stayed away from the song he said i viewed it as just a rap song and i figured if i left it alone things were just bad now isn't that what he'd say but it didn't he say but it did not just get left alone it came that's fine but when he said he was a fifty but alongside a mr griffin so you're saying he said he was afraid both coaches expressed in their own testimony there either fear or there of the fact that they were fright or scared off and so the record will reflect that coach randy testified that he was afraid i believe both coaches both coaches all right and while and further in that connection on the day the school learned about it principal why go drove bell home in the correct you drove him home because if i had all the fear because of mental not whether she took him home he drove him home and then on the day they told him he was suspended they allowed him to remain at the school for the rest of the day in the correct but your honor what you're missing is so important here the reasonable forecast of disruption that is an adequate and independent basis for invoking the term the thinker disruption standard that's being completely missed by and the road the school bus home that day in that right but what you're resting upon your honor and you can't get from a judicial standpoint you can't rest upon prove actual disruption the cases are legion that say there is no requirement for proof of actual disruption if there is a  try to answer it just then that there is no basis for us to say that this is simply a matter of language we disagree with but we're dealing with multiple at least seven major factors in indicate the disruptive effect among those where the c going ok we need to have at it test a rule that we apply and i'm wondering why the ponce rule extending to teachers would not be adequate given that you focused entirely on violence and if the poncing rule is not adequate they which of the circuits tests do you turn to it seems that the ninth circuit is the one that goes to threats of violence so tell us which circuits test she wishes to adopt if we have to go there but tell us first why ponce would not be good enough and say is almost adequate but ponce was prior to the the cyber revolution and the school violence revolution that we're in fairly recent decision well reasoned well written is one that gives you a basis i think for extending ponce to the type of disruptive effect in the true threat analysis here and it's both your honor and that's the d j i'm from the record i think that would be your classic case in which judge graves i know in earlier argument we had some argument about can you say circuit has extended thinker to off campus speech discusses the nuance that i think exists in this case which is allow school to punish deadly violence but never allow school to punish student in artfully first of all i want to ask you can one and that if he said unmistakably clearly i'm going to kill and maim the teacher in his larynx would that be protected good speech under the circumstances here you're out of what i would say to a plot dolls or talk oh no i ask you a question that can have a yes or no and then you can explain but it seems to me is it would it make a difference if it was unmistakably a threat to kill a teacher is that protected screw speech or not and i'm talking about the context of this case in which you know extreme especially that he made that threat if the expression he made that threat there's a potential that it could be a true threat the problem i'm not talking true i'm just asking you one question is that what is it protected speech or is it not the idea here is the problem we ask the question because i'm of the going to do ok you're not going to answer mr gray here i'm all of a younger generation and so i'm familiar with  and all other forms of music and portree and then have to make that distinction based on a ph d in those various forms of comments in order to be able to suspend a student there but there has to be  quoting the vernonia case that what is appropriate in schools is different from what's appropriate in society at large suppose all these kids taylor behl inspired copycats and they all started taking rap music that threaten teachers and they all started posting it in communicating to each other don't you agree that that would undermine the discipline in the teaching function of the school it would distract everybody from the mission of the school it would also threaten the school don't you think there's a point at which this kind of thing can cascade well the taker does allow schools to regulate speak to have the potential for disrupti sexual content in a speech at school and he was disciplined he or she was disciplined and then there's more serious frederick so really there and and we have justice alito concurrent and noisy frederick your on the internet that's not ok but it's ok to step inside one foot inside the schoolhouse gate and send out a message on the internet to thirteen hundred facebook friends that you're right your point absolutely a argument now that you framed it this way is that this whole case is about off campus speech that if he had made it on campus it would have been prohibited or could be prohibited if it's off campus it isn't cannot be just a minute on judge jolliest line of questioning i assume that you have been hired as the counsel to a school board and you were asked a question by the school board is there any speech or conduct that occurs off campus for which we can discipline the student and let me explain that that question would involve both in first amendment protected speech or conduct or none first amendment a slippery slope it is going to lead to cases like aids us versus kids are you saying that you even if you don't threaten a teacher that it's ok and it's not disciplinary basis to intimidate and harass a teacher you know what i'm saying is that a student away from school has a state bar so maybe right as a dog also i'm not asking about away from school i'm saying are you saying it's ok whether it's off campus on campus it's ok to harass and intimidate a teacher partially as is what about if you stood outside the door to the auditorium and performed this rap record in the students or just walking to class is that can that be discipline it could be this way because that's in school sweet  you taking a strong little bright line position but i worry it doesn't accommodate competing interests and in here is what are you i have sort of three part question one is is your position this primary position one that would in your mind have us create a split with every other circuit that extended turn pink or to off campus speech so legally that's a problem when i have factually it is relying on tinker that preceded the internet and it's in a context where every public school as coaches coaching are going to be using fields that are off campus so fact they've got a problem in the third problem i have with it is looking to the future what you seem to be saying is well don't have states take over the role of parents but you're essentially saying the school should be calling authorities police authorities and have the state criminal apparatus take it over so it's a bright lying strong will position but it has problems for me legally factually and then as a rule going forward well i think even if we don't