IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60264

TAYLOR BELL; DORA BELL, individually and as mother of Taylor Bell, 

 Plaintiffs - Appellants

v.

ITAWAMBA COUNTY SCHOOL BOARD; TERESA MCNEECE, 

Superintendent of Education for Itawamba County, Individually and in her 

official capacity; TRAE WIYGUL, principal of Itawamba Agricultural High 

School, Individually and in his official capacity, 

 Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, 

BARKSDALE, DENNIS, CLEMENT, PRADO, OWEN, ELROD, 

SOUTHWICK, HAYNES, GRAVES, HIGGINSON and COSTA, Circuit 

Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Away from school or a school function and without using school resources

(off-campus speech), Taylor Bell, a student at Itawamba Agricultural High 

School in Itawamba County, Mississippi, posted a rap recording containing 

threatening language against two high school teachers/coaches on the Internet 

(first on his publicly accessible Facebook profile page and then on YouTube), 

United States Court of Appeals

Fifth Circuit

FILED

August 20, 2015

Lyle W. Cayce

Clerk

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intending it to reach the school community. In the recording, Bell names the 

two teachers and describes violent acts to be carried out against them. 

Interpreting the language as threatening, harassing, and intimidating the 

teachers, the Itawamba County School Board took disciplinary action against 

Bell. 

Bell claims being disciplined violated his First Amendment right to free 

speech. On cross-motions for summary judgment, the district court ruled, inter 

alia: the school board, as well as the school-district superintendent, Teresa 

McNeece, and the school principal, Trae Wiygul, acting in their official 

capacities (the school board), acted reasonably as a matter of law. Bell v. 

Itawamba Cnty. Sch. Bd., 859 F. Supp. 2d 834 (N.D. Miss. 2012). 

Primarily at issue is whether, consistent with the requirements of the 

First Amendment, off-campus speech directed intentionally at the school 

community and reasonably understood by school officials to be threatening, 

harassing, and intimidating to a teacher satisfies the almost 50-year-old

standard for restricting student speech, based on a reasonable forecast of a 

substantial disruption. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 

U.S. 503, 514 (1969) (infringing otherwise-protected school speech requires 

“facts which might reasonably have led school authorities to forecast 

substantial disruption of or material interference with school activities”). 

Because that standard is satisfied in this instance, the summary judgment is 

AFFIRMED.

I.

On Wednesday, 5 January 2011, Bell, a high-school senior, posted a rap 

recording on his public Facebook profile page (and later on YouTube), using 

what appears to be a representation of a Native American as the rap 

recording’s cover image. (His high-school mascot is a Native American.) The 

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recording, in part, alleges misconduct against female students by Coaches W. 

and R. 

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.)

Let me tell you a little story about these Itawamba 

coaches / dirty ass niggas like some fucking coacha 

roaches / started fucking with the white and know they 

fucking with the blacks / that pussy ass nigga W[.] got 

me turned up the fucking max /

Fucking with the students and he just had a baby / 

ever since I met that cracker I knew that he was crazy

/ always talking shit cause he know I’m from daw-city

/ the reason he fucking around cause his wife ain’t got 

no tidies /

This niggha telling students that they sexy, betta 

watch your back / I’m a serve this nigga, like I serve 

the junkies with some crack / Quit the damn basketball 

team / the coach a pervert / can’t stand the truth so to 

you these lyrics going to hurt

What the hell was they thinking when they hired Mr. 

R[.] / dreadlock Bobby Hill the second / He the same 

see / Talking about you could have went pro to the NFL

/ Now you just another pervert coach, fat as hell / 

Talking about you gangsta / drive your mama’s PT 

Cruiser / Run up on T-Bizzle / I’m going to hit you with 

my rueger

Think you got some game / cuz you fucking with some 

juveniles / you know this shit the truth so don’t you try 

to hide it now / Rubbing on the black girls ears in the 

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gym / white hoes, change your voice when you talk to 

them / I’m a dope runner, spot a junkie a mile away / 

came to football practice high / remember that day / I 

do / to me you a fool / 30 years old fucking with 

students at the school

Hahahah / You’s a lame / and it’s a dam shame / 

instead you was lame / eat shit, the whole school got a 

ring mutherfucker

Heard you textin number 25 / you want to get it on / 

white dude, guess you got a thing for them yellow 

bones / looking down girls shirts / drool running down 

your mouth / you fucking with the wrong one / going 

to get a pistol down your mouth / Boww

OMG / Took some girls in the locker room in PE / Cut 

off the lights / you motherfucking freak / Fucking with 

the youngins / because your pimpin game weak / How 

he get the head coach / I don’t really fucking know / 

But I still got a lot of love for my nigga Joe / And my 

nigga Makaveli / and my nigga codie / W[.] talk shit 

bitch don’t even know me

Middle fingers up if you hate that nigga / Middle 

fingers up if you can’t stand that nigga / middle fingers 

up if you want to cap that nigga / middle fingers up / 

he get no mercy nigga

(Emphasis added.) 

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

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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”.

A screenshot of Bell’s Facebook profile page, taken approximately 16 

hours after he posted the rap recording, shows his profile, including the rap 

recording, was open to, and viewable by, the public. In other words, anyone 

could listen to it. 

On Thursday, 6 January, the day after the recording was posted, Coach 

W. received a text message from his wife, informing him about the recording; 

she had learned about it from a friend. After asking a student about the 

recording, the coach listened to it at school on the student’s smartphone

(providing access to the Internet). The coach immediately reported the rap 

recording to the school’s principal, Wiygul, who informed the school-district 

superintendent, McNeece. 

The next day, Friday, 7 January, Wiygul, McNeece, and the school-board 

attorney, Floyd, questioned Bell about the rap recording, including the veracity 

of the allegations, the extent of the alleged misconduct, and the identity of the 

students involved. Bell was then sent home for the remainder of the day. 

Because of inclement weather, the school was closed through Thursday, 

13 January. During Bell’s resulting time away from school, and despite his 

having spoken with school officials about his rap recording, including the 

accusations against the two coaches, Bell created a finalized version of the

recording (adding commentary and a picture slideshow), and uploaded it to 

YouTube for public viewing. 

Bell returned to school when it reopened on Friday, 14 January; he was 

removed from class midday by the assistant principal and told he was 

suspended, pending a disciplinary-committee hearing. (He was permitted to 

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remain in the school commons until the school bus he rode arrived at the end 

of the day.) By letter that day to Bell’s mother, the superintendent informed 

her: Bell’s suspension would continue until further notification; and a hearing 

would be held to consider disciplinary action for Bell’s “alleged threatening 

intimidation and/or harassment of one or more school teachers”. The listed, 

possible basis for such action was consistent with the school district’s 

administrative disciplinary policy, which lists “[h]arassment, intimidation, or 

threatening other students and/or teachers” as a severe disruption. 

The disciplinary-committee hearing, originally scheduled for 

Wednesday, 19 January, was delayed at Bell’s mother’s request; it was held on 

Wednesday, 26 January. Although there is no transcript of the hearing, it was 

recorded; that recording is in the summary-judgment record. The hearing 

was facilitated by the school-board attorney, Floyd; three disciplinarycommittee members were present, as well as the school principal and Bell, his 

mother, and their attorney. 

The hearing began with the principal’s providing a summary of events, 

after which the YouTube version of the rap recording was played. Among the 

disciplinary-committee members’ questions, one member asked Bell whether

he had reported the alleged misconduct to school officials. Bell explained he 

had not done so because he believed they would ignore his complaints. Instead, 

he made the rap recording because he knew people were “gonna listen to it, 

somebody’s gonna listen to it”, acknowledging several times during the hearing 

that he posted the recording to Facebook because he knew it would be viewed 

and heard by students. Moreover, he explained that at least 2,000 people had 

contacted him about the rap recording in response to the Facebook and 

YouTube postings.

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One of the committee members asked Bell why he had posted a new 

version of the rap recording on YouTube, after school officials had discussed 

with him his posting it on Facebook. Bell gave a few (and somewhat 

conflicting) explanations: the Facebook version was a raw copy, so he wanted 

a finalized version on YouTube; the Facebook version was for his friends and 

“people locally” to hear, whereas the YouTube version was for music labels to 

hear; and he posted the YouTube version with a slideshow of pictures to help 

better explain the subject matter of the recording (his Facebook version only 

included a brief explanation of the backstory in the caption to the rap 

recording). 

Although Bell’s attorney, at one point, attempted to discuss the 

misconduct of the coaches alleged in the rap recording, the school-board 

attorney redirected the proceeding to its purpose: to resolve whether Bell

threatened, harassed, and intimidated the teachers; and, to decide whether his 

suspension should be upheld. In numerous instances, the school-board 

attorney emphasized this purpose, noting Bell’s “comments made [in the 

recording that] ‘you’ve f—ed with the wrong one / going to get a pistol down 

your mouth / POW’[,] those are threats to a teacher”. 

Bell contested the school-board attorney’s interpretation, responding: 

“Well that ain’t really what I said”; and then provided what he described as the 

written “original copy” of what had been recorded. (It is unclear from the 

disciplinary-committee-hearing recording, or other parts of the summaryjudgment record, which copy Bell provided.) Bell explained he did not mean 

he was going to shoot anyone, but that he was only “foreshadowing something 

that might happen”. (Emphasis added.) But, he agreed that individuals 

“outside the school setting” had made “certain statements” to his mother that 

“‘put a pistol down your mouth’[,] that is a direct threat”. 

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Near the end of the disciplinary-committee hearing, Bell explained 

again: he put the recording on Facebook and YouTube knowing it was open to 

public viewing; part of his motivation was to “increase awareness of the 

situation”; and, although he did not think the coaches would hear the recording 

and did not intend it to be a threat, he knew students would listen to it, later 

stating “students all have Facebook”. 

On 27 January, the day after the hearing, the school-board attorney 

informed Bell’s mother by letter that: the disciplinary committee had 

determined “the issue of whether or not lyrics published by Taylor Bell 

constituted threats to school district teachers was vague”, but that the 

publication of the recording constituted harassment and intimidation of two 

teachers, in violation of school-district policy and state law; as a result, the 

disciplinary committee recommended to the school board that Bell’s seven-day 

suspension be upheld and that he be placed in the county’s alternative school 

for the remainder of the nine-week grading period (approximately six weeks); 

Bell would not be “allowed to attend any school functions and [would] be 

subject to all rules imposed by the Alternative School”; and “[he would] be given 

time to make up any work missed while suspended or otherwise receive a 0, 

pursuant to Board policy”.

After being informed of the disciplinary-committee’s recommendation, 

Bell’s attorney informed the school-board attorney, by 31 January telephone 

call, that: Bell wished to appeal to the school board the disciplinarycommittee’s recommendation; and, although Bell and his mother were 

expected to appear at the board meeting on 7 February, they would be without 

counsel because he was unable to attend due to a scheduling conflict.

On 7 February, the school board, after being presented with a recitation 

of the recording, unanimously found: Bell “threatened, harassed and 

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intimidated school employees”. (The only document in the record from the 

school-board meeting is the minutes, which state: “Chairman Tony Wallace 

entertained a motion by Clara Brown to accept the discipline recommendation 

of the Discipline Committee regarding student with MSIS #000252815 

(I.A.H.S.) and finding that this student threatened, harassed and intimidated 

school employees. Wes Pitts seconded the motion. Motion Carried 

Unanimously.”) In other words, unlike the earlier-described disciplinary 

committee findings, which do not characterize the rap recording as threatening

(instead, finding that point “vague”), the school board found Bell had not only 

harassed and intimidated the teachers, but had also threatened them. 

By 11 February letter to Bell’s mother, the school-board attorney 

explained the board’s findings: “Bell did threaten, harass and intimidate 

school employees in violation of School Board policy and Mississippi State 

Law”. (Again, as stated in the written school-district policy, “[h]arassment, 

intimidation, or threatening other students and/or teachers” constitutes a 

severe disruption.) 

Approximately two weeks later, on 24 February, Bell and his mother 

filed this action, claiming, inter alia, the school board, superintendent, and 

principal (again, the school board) violated his First Amendment right to free 

speech. On 2 March, Bell requested a preliminary injunction, seeking his 

immediate reinstatement to his high school, including the reinstatement of “all 

privileges to which he was and may be entitled as if no disciplinary action had 

been imposed”, and all references to the incident being expunged from his 

school records. 

At the 10 March hearing for the requested injunction, Bell presented four 

affidavits from students at his school concerning alleged misconduct by the 

coaches. (The affidavits, however, were not considered by the court.) In 

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addition, Bell, his mother, school-board attorney Floyd, and Franklin (offered 

as an expert in rap music) were called as witnesses by Bell; superintendent 

McNeece and Coaches R. and W., by the school district. 

Bell testified about his making and disseminating the recording; the 

meaning behind certain statements in it; and the resulting events leading up 

to, and after, school officials disciplined him. Bell’s mother testified about her 

recollection of the events leading up to the disciplinary-committee and schoolboard hearings. She testified the school principal never stated Bell was

dangerous or threatening, and that Bell was told to stay in the school before 

suspending him. 

Floyd testified about her recollection of the events before, during, and 

after the disciplinary-committee and school-board hearings. During her

testimony, the court noted Bell’s contention that the rap recording addressed 

a matter of public concern. Floyd discussed the school-district policy Bell 

violated: he threatened, harassed, and intimidated school employees; 

similarly, she testified that, at their respective hearings, the disciplinary 

committee and the school board discussed the possibility of disruption. 

Over the school-district’s objection, Franklin was permitted to testify as 

an expert. Characterizing the statements in Bell’s recording as nothing more 

than “colorful language” used to entice listeners and reflective of the norm 

among young rap artists, Franklin testified that it gave him no cause for 

concern. On cross-examination, however, he testified: if an individual’s name 

is used in a rap recording and precedes the words “[p]ut a pistol in your mouth 

and cap him”, “it would definitely be cause for a conversation with the young 

man, absolutely”. 

The superintendent testified: she had attended the school-board 

meeting; there was a foreseeable danger of substantial disruption at the school 

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as a result of the rap recording; and, a written version of Bell’s rap recording 

was presented to the school board, before it adopted the disciplinarycommittee’s recommendation for suspension and temporary placement in the 

alternative school. 

Both coaches identified in the rap recording testified that it adversely 

affected their work at the school. Coach R. testified: subsequent to the 

publication of the recording, students began spending more time in the gym, 

despite teachers’ telling them to remain in classrooms; and the recording 

affected him in the way he conducted himself around students, noting he would 

no longer work with female members of the track team, instead instructing 

males on the team on how to coach the females and then having the males do 

so. Coach W. testified he: interpreted the statements in the rap recording

literally, after hearing it on a student’s smartphone at school; was “scared”, 

because “you never know in today’s society . . . what somebody means, [or] how 

they mean it”; and would not allow the members of the school basketball team 

he coached to leave after games until he was in his vehicle. 

After finding Bell’s last day attending the alternative school would be 

the next day, 11 March, the district court ruled whether to grant injunctive 

relief was moot. Accordingly, the requested injunction was denied.

It does not appear that any discovery took place after the preliminaryinjunction hearing. On 9 May, following a case-management conference, the 

magistrate judge entered an order stating: “it appears that there are no factual 

issues and that this case should be resolved by motions for summary 

judgment”; and the parties had 90 days to file those motions. 

Therefore, approximately three months later, the school board filed its 

summary-judgment motion on 1 August; Bell and his mother, on 5 August. On 

15 March 2012, the district court denied the Bells’ motion and granted the 

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school board’s. In doing so, it concluded the rap recording constituted 

“harassment and intimidation of teachers and possible threats against 

teachers and threatened, harassed, and intimidated school employees”. Bell, 

859 F. Supp. 2d at 840 (internal quotation marks omitted). The court also 

concluded the rap recording “in fact caused a material and/or substantial 

disruption at school and . . . it was reasonably foreseeable to school officials the 

song would cause such a disruption”. Id. Moreover, the court concluded, inter 

alia: (1) the superintendent and principal were entitled to qualified immunity

in their individual capacities; and (2) Bell’s mother could not show a violation 

of her Fourteenth Amendment rights (she claimed the school’s disciplining Bell 

violated her right to make decisions regarding the custody and care of her son). 

Id. at 841–42.

On appeal, only the summary judgment against Bell’s First Amendment 

claim was challenged. A divided panel in December 2014 held, inter alia: the 

school board violated Bell’s First Amendment right by disciplining him based 

on the language in the rap recording. Bell v. Itawamba Cnty. Sch. Bd., 774 

F.3d 280, 304–05 (5th Cir. 2014), reh’g en banc granted & opinion vacated, 782 

F.3d 712 (5th Cir. 2015). En-banc review was granted in February 2015.

II.

Because the summary judgment against Bell’s mother’s Fourteenth 

Amendment claim and for the school officials’ qualified-immunity claim was 

not contested on appeal, the only issue before our en-banc court is the summary 

judgment against Bell’s First Amendment claim. (The misconduct alleged by 

Bell against the two teachers is, of course, not at issue.) 

A summary judgment is reviewed de novo, applying the same standard 

as did the district court. E.g., Feist v. La., Dep’t of Justice, Office of the Att’y 

Gen., 730 F.3d 450, 452 (5th Cir. 2013). Summary judgment is proper when 

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“there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law”. Fed. R. Civ. P. 56(a). “A genuine dispute of 

fact exists when evidence is sufficient for a reasonable jury to return a verdict 

for the non-moving party, and a fact is material if it might affect the outcome 

of the suit.” Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (citations

and quotation marks omitted).

In determining whether to grant summary judgment, the court, in its de 

novo review, views the evidence in the light most favorable to the nonmovant. 

E.g., Dameware Dev., L.L.C. v. Am. Gen. Life Ins. Co., 688 F.3d 203, 206–07 

(5th Cir. 2012). Consistent with that, on cross-motions for summary judgment, 

“we review [de novo] each party’s motion independently, viewing the evidence 

and inferences in the light most favorable to the nonmoving party”. Cooley v. 

Hous. Auth. of Slidell, 747 F.3d 295, 298 (5th Cir. 2014) (internal quotation 

marks omitted) (quoting Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 

498 (5th Cir. 2001)).

The summary-judgment record at hand includes, inter alia: (1) the

affidavits of four students regarding the coaches’ alleged misconduct; (2) 

screenshots of Bell’s Facebook page; (3) a transcription of the rap recording

submitted by the school board; (4) a transcription of the recording submitted 

by Bell (stipulated version); (5) the letter from the superintendent to Bell’s 

mother, informing the Bells of a hearing before the disciplinary committee; (6) 

the digital recording of the rap recording; (7) the first screenshot of Bell’s 

Facebook “wall”; (8) the second screenshot of Bell’s Facebook “wall”; (9) the 

recording of the disciplinary-committee hearing; (10) the minutes of that 

hearing, containing the recommended disciplinary action; (11) the school-board 

attorney’s letter to Bell’s mother, informing her of the disciplinary committee’s 

findings and recommended discipline; (12) the school-board-hearing minutes; 

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(13) the school-district’s discipline policy; (14) the school-board attorney’s letter 

to Bell’s mother informing her of the school-board’s determination; and (15) the

transcript of the preliminary-injunction hearing.

A. 

Students qua students do not forfeit their First Amendment rights to 

freedom of speech and expression. Tinker, 393 U.S. at 506, 511 (“School 

officials do not possess absolute authority over their students . . . . In the 

absence of a specific showing of constitutionally valid reasons to regulate their 

speech, students are entitled to freedom of expression of their views.”). On the 

other hand, the First Amendment does not provide students absolute rights to 

such freedoms, and those rights must be tempered in the light of a school 

official’s duty to, inter alia, “teach[] students the boundaries of socially 

appropriate behavior”, Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 

(1986), and “protect those entrusted to their care”, Morse v. Frederick, 551 U.S. 

393, 408 (2007). As Justice Oliver Wendell Holmes, Jr., wrote nearly a century 

ago: “[T]he character of every act depends upon the circumstances in which it 

is done. The most stringent protection of free speech would not protect a man 

in falsely shouting fire in a theatre and causing a panic.” Schenck v. United 

States, 249 U.S. 47, 52 (1919) (citation omitted). Therefore, because “the 

constitutional rights of students in public school are not automatically 

coextensive with the rights of adults in other settings”, Fraser, 478 U.S. at 682, 

certain speech, which would be protected in other settings, might not be 

afforded First Amendment protection in the school setting.

Balancing these competing interests, Tinker provided in 1969 the

standard for evaluating whether the First Amendment protects a student’s 

speech. There, the Court considered the suspension of students for wearing 

black armbands in protest against the Vietnam War. Tinker, 393 U.S. at 505–

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14. In holding the students’ speech protected under the First Amendment, the 

Court, focusing primarily on the effect of that speech on the school community, 

held: A student “may express his opinions . . . if he does so without materially 

and substantially interfer[ing] with the requirements of appropriate discipline 

in the operation of the school and without colliding with the rights of others”. 

Id. at 513 (alteration in original) (emphasis added) (internal quotation marks

omitted). Put another way, “conduct by the student, in class or out of it, which 

for any reason . . . materially disrupts classwork or involves substantial 

disorder or invasion of the rights of others is, of course, not immunized . . . ”. 

Id. (emphasis added). Approximately three years after Tinker, our court held 

this standard can be satisfied either by showing a disruption has occurred, or 

by showing “demonstrable factors that would give rise to any reasonable 

forecast by the school administration of ‘substantial and material’ disruption”. 

Shanley v. Ne. Indep. Sch. Dist., Bexar Cnty., Tex., 462 F.2d 960, 974 (5th Cir. 

1972) (emphasis added) (holding school’s suspension of students for their offcampus distribution of “underground” newspaper violated Tinker).

Since Tinker, the Court has revisited student speech on several 

occasions, each time carving out narrow exceptions to the general Tinker

standard based on certain characteristics, or content, of the speech. See, e.g., 

Morse, 551 U.S. at 425 (Alito, J, concurring) (grave and unique threats to the 

physical safety of students, in particular, speech advocating illegal drug use); 

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (school-sponsored 

speech); Fraser, 478 U.S. at 685 (lewd, vulgar, or indecent speech); see also

Morgan v. Swanson, 659 F.3d 359, 374 (5th Cir. 2011) (en banc) (describing the 

Court’s holdings as “expand[ing] the kinds of speech schools can regulate . . . . 

to several broad categories of student speech” (internal quotation marks

omitted)). In Fraser, the Court held the school board acted within its authority 

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when it disciplined a student for an “offensively lewd and indecent” speech 

delivered at a student assembly. 478 U.S. at 677–78, 685. In Hazelwood, the 

Court upheld a school’s right to “exercis[e] editorial control over the style and 

content of student speech” in a school-sponsored newspaper when the student 

engages in “expressive activities that students, parents, and members of the 

public might reasonably perceive to bear the imprimatur of the school” and the 

school officials’ “actions are reasonably related to legitimate pedagogical 

concerns”. 484 U.S. at 262, 271, 273. 

And, most recently in Morse, the Court considered whether a school 

infringed a student’s First Amendment right of free speech when it disciplined 

him for holding up a banner that stated “BONG HiTS 4 JESUS” at a schoolsponsored event. 551 U.S. at 397–98. The Court, through Justice Alito’s 

controlling concurrence (joined by Justice Kennedy), held a school may 

discipline a student for speech which poses a “grave and . . . unique threat to 

the physical safety of students”, such as “advocating illegal drug use”. Id. at 

425. (Justice Alito limited his “join[ing] the opinion of the Court on the 

understanding that the opinion does not hold that the special characteristics 

of the public schools necessarily justify any other speech restrictions”. Id. at 

423.) 

For these exceptions, schools are not required to prove the occurrence of 

an actual disruption or one that reasonably could have been forecast. 

Similarly, in Ponce v. Socorro Independent School District, our court extended 

the Morse exception to certain threats of school violence. 508 F.3d 765, 771–

72 (5th Cir. 2007). In response to a diary brought to school containing 

“terroristic threat[s]” mirroring recent mass school shootings, the school 

suspended the student. Id. at 767. On appeal, our court upheld the suspension 

as constitutional, extending Morse’s exception to speech “bearing the stamp of 

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. . . mass, systematic school-shootings” based on the “[l]ack of forewarning and 

the frequent setting within schools [which] give mass shootings the unique 

indicia that the concurring opinion [in Morse] found compelling with respect to 

drug use”. Id. at 771.

In challenging the summary judgment, Bell claims the school board 

violated his First Amendment free-speech rights by temporarily suspending 

him and placing him in an alternative school for the six weeks remaining in

the grading period. In support, he contends: Tinker does not apply to offcampus speech, such as his rap recording; and, even if it does, Tinker’s 

“substantial disruption” test is not satisfied. For the reasons that follow, we 

hold: Tinker applies to the off-campus speech at issue; there is no genuine 

dispute of material fact precluding ruling, as a matter of law, that a school 

official reasonably could find Bell’s rap recording threatened, harassed, and 

intimidated the two teachers; and a substantial disruption reasonably could

have been forecast, as a matter of law.

1.

As our court explained in Morgan v. Swanson, student-speech claims are 

evaluated “in light of the special characteristics of the school environment, 

beginning by categorizing the student speech at issue”. 659 F.3d at 375

(footnotes and internal quotation marks omitted). We must thus decide 

whether Bell’s speech falls under Tinker, or one of the Court’s above-described 

exceptions. See, e.g., Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d 

Cir. 2001) (employing a similar approach, noting “[s]peech falling outside of 

. . . categories [such as those in Fraser and Hazelwood] is subject to Tinker’s 

general rule”). 

The parties do not assert, and the record does not show, that the school 

board disciplined Bell based on the lewdness of his speech or its potential 

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perceived sponsorship by the school; therefore, Fraser and Hazelwood are not 

directly on point. Bell’s speech likewise does not advocate illegal drug use or 

portend a Columbine-like mass, systematic school-shooting. And, as Justice 

Alito noted, when the type of violence threatened does not implicate “the 

special features of the school environment”, Tinker’s “substantial disruption”

standard is the appropriate vehicle for analyzing such claims. Morse, 551 U.S. 

at 425 (citing Tinker, 393 U.S. at 508–09) (“[I]n most cases, Tinker’s 

‘substantial disruption’ standard permits school officials to step in before 

actual violence erupts”.). Although threats against, and harassment and 

intimidation of, teachers certainly pose a “grave . . . threat to the physical 

safety” of members of the school community, id., violence forecast by a student

against a teacher does not reach the level of the above-described exceptions

necessitating divergence from Tinker’s general rule. We therefore analyze 

Bell’s speech under Tinker. See Ponce, 508 F.3d at 771–72 & n.2 (“[B]ecause

[threats of violence against individual teachers] are relatively discrete in scope 

and directed at adults, [they] do not amount to the heightened level of harm 

that was the focus of both the majority opinion and Justice Alito’s concurring 

opinion in Morse”.); see also Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. 

Dist., 494 F.3d 34, 38 (2d Cir. 2007) (analyzing threats of violence to individual 

teachers under Tinker); Boim v. Fulton Cnty. Sch. Dist., 494 F.3d 978, 982–83 

(11th Cir. 2007) (same). 

2.

In claiming Tinker does not apply to off-campus speech, Bell asserts: 

Tinker limits its holding to speech inside the “schoolhouse gate”; and each of 

the Court’s subsequent decisions reinforces this understanding.

“Experience shows that schools can be places of special danger.” Morse, 

551 U.S. at 424 (Alito, J., concurring). Over 45 years ago, when Tinker was 

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decided, the Internet, cellphones, smartphones, and digital social media did 

not exist. The advent of these technologies and their sweeping adoption by 

students present new and evolving challenges for school administrators, 

confounding previously delineated boundaries of permissible regulations. See, 

e.g., Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1064 (9th Cir. 2013) 

(“With the advent of the Internet and in the wake of school shootings at 

Columbine, Santee, Newtown and many others, school administrators face the 

daunting task of evaluating potential threats of violence and keeping their 

students safe without impinging on their constitutional rights.”). Students 

now have the ability to disseminate instantaneously and communicate widely 

from any location via the Internet. These communications, which may 

reference events occurring, or to occur, at school, or be about members of the 

school community, can likewise be accessed anywhere, by anyone, at any time. 

Although, under other circumstances, such communications might be

protected speech under the First Amendment, off-campus threats, harassment, 

and intimidation directed at teachers create a tension between a student’s freespeech rights and a school official’s duty to maintain discipline and protect the 

school community. These competing concerns, and differing standards applied 

to off-campus speech across circuits, as discussed infra, have drawn into 

question the scope of school officials’ authority. See Morse, 551 U.S. at 418 

(Thomas, J., concurring) (lamenting the Court’s failure to “offer an explanation 

of when [Tinker] operates and when it does not”, and noting: “I am afraid that 

our jurisprudence now says that students have a right to speak in schools 

except when they do not”).

Greatly affecting this landscape is the recent rise in incidents of violence 

against school communities. See LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987 

(9th Cir. 2001) (“[W]e live in a time when school violence is an unfortunate 

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reality that educators must confront on an all too frequent basis”.). School 

administrators must be vigilant and take seriously any statements by students 

resembling threats of violence, Ponce, 508 F.3d at 771, as well as harassment 

and intimidation posted online and made away from campus. This nowtragically common violence increases the importance of clarifying the school’s 

authority to react to potential threats before violence erupts. See Morse, 551 

U.S. at 408 (pressing that dangerous speech, such as speech advocating drug 

use, is substantially different from the political speech at issue in Tinker,

because it presents a “far more serious and palpable” danger than an 

“undifferentiated fear or apprehension of disturbance” or “a mere desire to 

avoid the discomfort and unpleasantness that always accompany an unpopular 

viewpoint” (citation and internal quotation marks omitted)); see also Ponce, 508 

F.3d at 772 (“School administrators must be permitted to react quickly and 

decisively to address a threat of physical violence . . . without worrying that 

they will have to face years of litigation second-guessing their judgment as to 

whether the threat posed a real risk of substantial disturbance.”). 

In the light of these competing interests and increasing concerns 

regarding school violence, it is necessary to establish the extent to which offcampus student speech may be restricted without offending the First 

Amendment. Our holding concerns the paramount need for school officials to 

be able to react quickly and efficiently to protect students and faculty from 

threats, intimidation, and harassment intentionally directed at the school 

community. See, e.g., Morse, 551 U.S. at 425 (Alito, J., concurring) (“[D]ue to 

the special features of the school environment, school officials must have 

greater authority to intervene before speech leads to violence.”); Lowery v. 

Euverard, 497 F.3d 584, 596 (6th Cir. 2007) (“School officials have an 

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affirmative duty to not only ameliorate the harmful effects of disruptions, but 

to prevent them from happening in the first place.”).

a.

Despite Bell’s recognizing the wealth of precedent across numerous 

circuits contrary to his position, he asserts: Tinker does not apply to speech 

which originated, and was disseminated, off-campus, without the use of school 

resources. Bell’s position is untenable; it fails to account for evolving 

technological developments, and conflicts not only with our circuit’s precedent, 

but with that of every other circuit to have decided this issue.

Since Tinker was decided in 1969, courts have been required to define its 

scope. As discussed below, of the six circuits to have addressed whether Tinker

applies to off-campus speech, five, including our own, have held it does. (For 

the other of the six circuits (the third circuit), there is an intra-circuit split. 

See Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 219–20 (3d Cir. 2011) (en 

banc) (Jordan, J., concurring) (discussing that Tinker’s applicability to offcampus speech remains unresolved in the third circuit); see also J.S. ex rel. 

Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 931 & n.8 (3d Cir. 2011) (en 

banc) (divided court assuming, without deciding, that the Tinker substantialdisruption test applies to online speech harassing a school administrator).) 

The remainder of the circuits (first, sixth, seventh, tenth, eleventh, D.C.) do 

not appear to have addressed this issue.

Although the Supreme Court has not expressly ruled on this issue, our 

court, 43 years ago, applied Tinker to analyze whether a school board’s actions 

were constitutional in disciplining students based on their off-campus speech. 

E.g., Shanley, 462 F.2d at 970 (“When the Burnside/Tinker standards are 

applied to this case . . . ”.); see also Sullivan v. Hous. Indep. Sch. Dist., 475 F.2d 

1071, 1072 (5th Cir. 1973) (“This case arises from the unauthorized 

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distribution of an underground newspaper near a high school campus, and

presents the now-familiar clash between claims of First Amendment protection 

on the one hand and the interests of school boards in maintaining an 

atmosphere in the public schools conducive to learning, on the other.” 

(emphasis added)); Wisniewski, 494 F.3d at 39 (interpreting Sullivan as 

applying Tinker to off-campus speech); Porter v. Ascension Parish Sch. Bd., 393 

F.3d 608, 615 n.22, 619 n.40 (5th Cir. 2004) (same).

In Shanley, students distributed newspapers containing articles they 

authored “during out-of-school hours, and without using any materials or 

facilities owned or operated by the school system”, “near but outside the school 

premises on the sidewalk of an adjoining street, separated from the school by 

a parking lot”. 462 F.2d at 964. In concluding the students’ speech was 

protected, our court ruled: “[T]he activity punished here does not even 

approach the ‘material and substantial’ disruption . . . either in fact or in 

reasonable forecast [and] [a]s a factual matter . . . there were no disturbances 

of any sort, on or off campus, related to the distribution of the [newspaper]”. 

Id. at 970.

Further, as noted supra, four other circuits have held that, under certain 

circumstances, Tinker applies to speech which originated, and was 

disseminated, off-campus. See, e.g., Wynar, 728 F.3d at 1069; D.J.M. ex rel. 

D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 766–67 (8th Cir. 2011); 

Kowalski v. Berkeley Cnty. Schs., 652 F.3d 565, 573–74 (4th Cir. 2011);

Doninger v. Niehoff, 527 F.3d 41, 48–50 (2d Cir. 2008). Therefore, based on 

our court’s precedent and guided by that of our sister circuits, Tinker applies

to off-campus speech in certain situations.

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b.

Therefore, the next question is under what circumstances may offcampus speech be restricted. Our court’s precedent is less developed in this 

regard. For the reasons that follow, and in the light of the summary-judgment 

record, we need not adopt a specific rule: rather, Bell’s admittedly 

intentionally directing at the school community his rap recording containing 

threats to, and harassment and intimidation of, two teachers permits Tinker’s 

application in this instance.

i.

In 1972 in Shanley, our court expressly declined to adopt a rule holding 

a school’s attempt to regulate off-campus speech under Tinker was per se

unconstitutional. 462 F.2d at 974. Our court explained: “[E]ach situation 

involving expression and discipline will create its own problems of 

reasonableness, and for that reason we do not endeavor here to erect any 

immovable rules, but only to sketch guidelines”. Id. Likewise, in 1973 in 

Sullivan, our court considered Tinker, but did not address any parameters for

its application to off-campus speech. 475 F.2d at 1076–77.

Our court’s far more recent, 2004 opinion in Porter, however, provides 

valuable insight in this regard. There, the school expelled a student after his 

brother brought to school a sketchpad containing a two-year-old drawing of the 

school’s being attacked by armed personnel. 393 F.3d at 611. The depiction, 

albeit violent in nature, “was completed [at] home, stored for two years, and 

never intended by [the creator of the drawing] to be brought to campus”. Id. at 

615 (emphasis added). After concluding Tinker applied to the school’s 

regulations, our court held the speech was protected because the student never 

intended for the drawing to reach the school, describing its introduction to the 

school community as “accidental and unintentional”. Id. at 618, 620 (“Because 

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[the student’s] drawing was composed off-campus, displayed only to members 

of his own household, stored off-campus, and not purposefully taken by him to 

[school] or publicized in a way certain to result in its appearance at [school], 

we have found that the drawing is protected by the First Amendment”.). Of 

importance for the issue at hand, and after describing precedent from our and 

other circuits’ applying Tinker to off-campus speech, our court stated its 

holding was “not in conflict with this body of case law” regarding the First 

Amendment and off-campus student speech because the drawing’s being 

“composed off-campus and remain[ing] off-campus for two years until it was 

unintentionally taken to school by his younger brother takes the present case 

outside the scope of these precedents”. Id. at 615 n.22 (emphasis added).

Porter instructs that a speaker’s intent matters when determining 

whether the off-campus speech being addressed is subject to Tinker. A

speaker’s intention that his speech reach the school community, buttressed by 

his actions in bringing about that consequence, supports applying Tinker’s 

school-speech standard to that speech.

In addition, those courts to have considered the circumstances under 

which Tinker applies to off-campus speech have advocated varied approaches. 

E.g., Wynar, 728 F.3d at 1069 (holding that, regardless of the location of the 

speech, “when faced with an identifiable threat of school violence [(threats 

communicated online via MySpace messages)], schools may take disciplinary 

action in response to off-campus speech that meets the requirements of 

Tinker”); Snyder, 650 F.3d at 940 (Smith, J., concurring) (noting that any 

standard adopted “cannot turn solely on where the speaker was sitting when 

the speech was originally uttered [because s]uch a standard would fail to 

accommodate the somewhat ‘everywhere at once’ nature of the [I]nternet”, and 

advocating allowing schools to discipline off-campus speech “[r]egardless of its 

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place of origin” so long as that speech was “intentionally directed towards a 

school”); Kowalski, 652 F.3d at 573 (applying Tinker when a “sufficiently 

strong” nexus exists between the student’s speech and the school’s pedagogical 

interests “to justify the action taken by school officials in carrying out their role 

as the trustees of the student body’s well-being”); D.J.M., 647 F.3d at 766 

(applying Tinker because “it was reasonably foreseeable that [the student’s]

threats about shooting specific students in school would be brought to the 

attention of school authorities and create a risk of substantial disruption

within the school environment”); Doninger, 527 F.3d at 48 (holding Tinker

applies to speech originating off-campus if it “would foreseeably create a risk 

of substantial disruption within the school environment, at least when it was 

similarly foreseeable that the off-campus expression might also reach campus” 

(internal quotation marks omitted)).

The pervasive and omnipresent nature of the Internet has obfuscated 

the on-campus/off-campus distinction advocated by Bell, “mak[ing] any effort 

to trace First Amendment boundaries along the physical boundaries of a school 

campus a recipe for serious problems in our public schools”. Layshock, 650 

F.3d at 220–21 (Jordan, J., concurring). Accordingly, in the light of our court’s 

precedent, we hold Tinker governs our analysis, as in this instance, when a 

student intentionally directs at the school community speech reasonably 

understood by school officials to threaten, harass, and intimidate a teacher, 

even when such speech originated, and was disseminated, off-campus without 

the use of school resources. 

This holding is consistent with our circuit’s precedent in Shanley and 

Sullivan, that of our sister circuits, and our reasoning in Porter. Further, in 

holding Tinker applies to the off-campus speech in this instance, because such 

determinations are heavily influenced by the facts in each matter, we decline: 

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to adopt any rigid standard in this instance; or to adopt or reject approaches 

advocated by other circuits. 

ii.

Turning to the matter before us, there is no genuine dispute of material 

fact that Bell intended his rap recording to reach the school community. He 

admitted during the disciplinary-committee hearing that one of the purposes 

for producing the recording was to “increase awareness of the [alleged 

misconduct]” and that, by posting the rap recording on Facebook and YouTube, 

he knew people were “gonna listen to it, somebody’s gonna listen to it”, 

remarking that “students all have Facebook”. In short, Bell produced and 

disseminated the rap recording knowing students, and hoping administrators, 

would listen to it. 

Further, regardless of whether Bell’s statements in the rap recording 

qualify as “true threats”, as discussed in part II.B., they constitute threats, 

harassment, and intimidation, as a layperson would understand the terms. 

The Oxford English Dictionary defines: “threaten” as “to declare (usually 

conditionally) one’s intention of inflicting injury upon” another, 17 Oxford 

English Dictionary 998 (2d ed. 1989); “harass” as “[t]o wear out, tire out, or 

exhaust with fatigue, care, [or] trouble”, 6 id. at 1100 (emphasis in original); 

and “intimidate” as “[t]o render timid, inspire with fear; [or] to force to or deter 

from some action by threats or violence”, 8 id. at 7–8. See also Black’s Law 

Dictionary 1708 (10th ed. 2014) (defining “threat” as “[a] communicated intent 

to inflict harm or loss on another or on another’s property”); id. at 831 (defining 

“harassment” as “[w]ords, conduct, or action . . . that, being directed at a 

specific person, annoys, alarms, or causes substantial emotional distress to

that person and serves no legitimate purpose”); Elonis v. United States, 135 S. 

Ct. 2001, 2011–12 (2015) (explaining that a “threat” can have different 

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definitions based on context (for example, the difference between its use in 

criminal statutes and its being protected speech under the First Amendment)). 

A reasonable understanding of Bell’s statements satisfies these 

definitions; they: threatened violence against the two coaches, describing the 

injury to be inflicted (putting the pistol down their mouths and pulling the 

trigger, and “capping” them), described the specific weapon (a “rueger” [sic], 

which, as discussed supra, is a type of firearm), and encouraged others to 

engage in this action; and harassed and intimidated the coaches by forecasting 

the aforementioned violence, warning them to “watch [their] back[s]” and that 

they would “get no mercy” when such actions were taken. Accordingly, as 

further discussed infra, there is no genuine dispute of material fact that Bell 

threatened, harassed, and intimidated the coaches by intentionally directing

his rap recording at the school community, thereby subjecting his speech to 

Tinker.

3.

Having held Tinker applies in this instance, the next question is whether 

Bell’s recording either caused an actual disruption or reasonably could be

forecast to cause one. Taking the school board’s decision into account, and the 

deference we must accord it, see, e.g., Wood v. Strickland, 420 U.S. 308, 326 

(1975), overruled in part on other grounds, Harlow v. Fitzgerald, 457 U.S. 800 

(1982); Shanley, 462 F.2d at 975; Callahan v. Price, 505 F.2d 83, 87 (5th Cir. 

1974), this question becomes whether a genuine dispute of material fact exists 

regarding the reasonableness of finding Bell’s rap recording threatening, 

harassing, and intimidating; and, if no genuine dispute precludes that finding, 

whether such language, as a matter of law, reasonably could have been forecast 

to cause a substantial disruption.

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a.

As noted by our court in Shanley, “in deference to the judgment of the 

school boards, we refer ad hoc resolution of . . . issues [such as this one] to the 

neutral corner of ‘reasonableness’”. 462 F.2d at 971; see also id. at 975 (“[T]he 

balancing of expression and discipline is an exercise in judgment for school 

administrations and school boards, subject only to the constitutional 

requirement of reasonableness under the circumstances”.). For the reasons 

discussed supra, there is no genuine dispute of material fact that the school 

board’s finding the rap recording threatened, harassed, and intimidated the 

two coaches was objectively reasonable.

b.

Next, we consider whether the school board’s disciplinary action against 

Bell, based on its finding he threatened, harassed, and intimidated two 

coaches, satisfies Tinker. Arguably, a student’s threatening, harassing, and 

intimidating a teacher inherently portends a substantial disruption, making 

feasible a per se rule in that regard. We need not decide that question because, 

in the light of this summary-judgment record, and for the reasons that follow, 

Bell’s conduct reasonably could have been forecast to cause a substantial 

disruption. 

i.

As discussed supra, Tinker allows a school board to discipline a student 

for speech that either causes a substantial disruption or reasonably is forecast 

to cause one. 393 U.S. at 514. The Tinker test is satisfied when: an actual 

disruption occurs; or the record contains facts “which might reasonably have 

led school authorities to forecast substantial disruption of or material 

interference with school activities”. Id.

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“Tinker requires a specific and significant fear of disruption, not just 

some remote apprehension of disturbance.” Saxe, 240 F.3d at 211. “School 

officials must be able to show that their actions were caused by something more 

than a mere desire to avoid the discomfort and unpleasantness that always 

accompany an unpopular viewpoint.” A.M. ex rel. McAllum v. Cash, 585 F.3d 

214, 221 (5th Cir. 2009) (alterations and internal quotation marks omitted). 

“Officials must base their decisions on fact, not intuition”, id. at 221–22 

(internal quotation marks omitted); and those decisions are entitled to 

deference, Shanley, 462 F.2d at 967 (“That courts should not interfere with the 

day-to-day operations of schools is a platitudinous but eminently sound maxim 

which this court has reaffirmed on many occasions.”). See also Wood, 420 U.S. 

at 326 (“It is not the role of the federal courts to set aside decisions of school 

administrators which the court may view as lacking a basis in wisdom or 

compassion.”). 

As our court has held: “While school officials must offer facts to support 

their proscription of student speech, this is not a difficult burden, and their 

decisions will govern if they are within the range where reasonable minds will 

differ”. Cash, 585 F.3d at 222 (emphasis added) (internal citations and 

quotation marks omitted). Accordingly, school authorities are not required 

expressly to forecast a “substantial or material disruption”; rather, courts 

determine the possibility of a reasonable forecast based on the facts in the 

record. See, e.g., id. at 217, 222; see also Tinker, 393 U.S. at 514 (“[T]he record 

does not demonstrate any facts which might reasonably have led school 

authorities to forecast substantial disruption of or material interference with 

school activities, and no disturbances or disorders on the school premises in 

fact occurred”. (emphasis added)).

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Factors considered by other courts in determining, pursuant to Tinker, 

the substantiality vel non of an actual disruption, and the objective 

reasonableness vel non of a forecasted substantial disruption, include: the 

nature and content of the speech, the objective and subjective seriousness of 

the speech, and the severity of the possible consequences should the speaker 

take action, e.g., Wynar, 728 F.3d at 1070–71; the relationship of the speech to 

the school, the intent of the speaker to disseminate, or keep private, the speech, 

and the nature, and severity, of the school’s response in disciplining the 

student, e.g., Doninger, 527 F.3d at 50–52; whether the speaker expressly 

identified an educator or student by name or reference, and past incidents 

arising out of similar speech, e.g., Kowalski, 652 F.3d at 574; the manner in 

which the speech reached the school community, e.g., Boim, 494 F.3d at 985; 

the intent of the school in disciplining the student, Snyder, 650 F.3d at 926, 

929 (majority opinion), 951 (Fisher, J., dissenting); and the occurrence of other 

in-school disturbances, including administrative disturbances involving the 

speaker, such as “[s]chool officials ha[ving] to spend considerable time dealing 

with these concerns and ensuring that appropriate safety measures were in 

place”, D.J.M., 647 F.3d at 766, brought about “because of the need to manage” 

concerns over the speech, Doninger, 527 F.3d at 51. 

ii.

Applying this precedent to the summary-judgment record at hand, and 

for the reasons that follow, a substantial disruption reasonably could have been

forecast as a matter of law. Viewing the evidence in the requisite light most 

favorable to Bell, including his assertions that he wanted only to raise 

awareness of alleged misconduct by two teachers (Bell admitted at the 

disciplinary-committee hearing that his recording was meant to “increase 

awareness of the situation” and that he was “foreshadowing something that 

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might happen” (emphasis added)), the manner in which he voiced his concern—

with threatening, intimidating, and harassing language—must be taken 

seriously by school officials, and reasonably could be forecast by them to cause 

a substantial disruption.

The speech pertained directly to events occurring at school, identified the 

two teachers by name, and was understood by one to threaten his safety and 

by neutral, third parties as threatening. (Bell agreed at the disciplinarycommittee hearing that “certain statements” were made to his mother “outside 

the school setting” that “‘put a pistol down your mouth’[,] that is a direct 

threat”.) The possible consequences were grave—serious injury to, including 

the possible death of, two teachers. Along that line, Bell admitted he intended 

the speech to be public and to reach members of the school community, which 

is further evidenced by his posting the recording to Facebook and YouTube. 

As noted, the school district’s Discipline – Administrative Policy lists 

“[h]arassment, intimidation, or threatening other students and/or teachers” as 

a severe disruption. Although we may not rely on ipse dixit in evaluating the 

school board’s actions, Shanley, 462 F.2d at 970, the school-district’s policy 

demonstrates an awareness of Tinker’s substantial-disruption standard, and 

the policy’s violation can be used as evidence supporting the reasonable 

forecast of a future substantial disruption. See, e.g., Morse, 551 U.S. at 408–

10 (relying on, inter alia, the student’s violation of established school policy in 

holding the school board did not violate the student’s First Amendment right); 

Fraser, 478 U.S. at 678, 686 (noting that the “[t]he school disciplinary rule 

proscribing ‘obscene’ language and the prespeech admonitions of teachers gave 

adequate warning to [the student] that his lewd speech could subject him to 

sanctions”).

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Further, even after finding Bell threatened, intimidated, and harassed 

two teachers, the school board’s response was measured—temporarily 

suspending Bell and placing him in an alternative-education program for the 

remainder of the nine-week grading term (about six weeks). The 

reasonableness of, and amount of care given to, this decision is reinforced by 

the school board’s finding, differently from the disciplinary committee’s, that 

Bell’s statements also constituted threats.

And finally, numerous, recent examples of school violence exist in which 

students have signaled potential violence through speech, writings, or actions, 

and then carried out violence against school communities, after school 

administrators and parents failed to properly identify warning signs. See, e.g., 

Report of the Virginia Tech Review Panel, Mass Shootings at Virginia Tech 

April 16, 2007, 52 (August 2007), available at

https://governor.virginia.gov/media/3772/fullreport.pdf (section entitled 

“Missing the Red Flags”); see also Ponce, 508 F.3d at 771 (“[T]he difficulty of 

identifying warning signs in the various instances of school shootings across 

the country is intrinsic to the harm itself”.); LaVine, 257 F.3d at 987 (“After 

Columbine, Thurston, Santee and other school shootings, questions have been 

asked how teachers or administrators could have missed telltale ‘warning 

signs,’ why something was not done earlier and what should be done to prevent 

such tragedies from happening again.”). 

In determining objective reasonableness vel non for forecasting a 

substantial disruption, the summary-judgment record and numerous related 

factors must be considered against the backdrop of the mission of schools: to 

educate. It goes without saying that a teacher, which includes a coach, is the 

cornerstone of education. Without teaching, there can be little, if any, learning. 

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Without learning, there can be little, if any, education. Without education, 

there can be little, if any, civilization.

It equally goes without saying that threatening, harassing, and 

intimidating a teacher impedes, if not destroys, the ability to teach; it impedes, 

if not destroys, the ability to educate. It disrupts, if not destroys, the discipline 

necessary for an environment in which education can take place. In addition,

it encourages and incites other students to engage in similar disruptive 

conduct. Moreover, it can even cause a teacher to leave that profession. In 

sum, it disrupts, if not destroys, the very mission for which schools exist—to 

educate. 

If there is to be education, such conduct cannot be permitted. In that 

regard, the real tragedy in this instance is that a high-school student thought 

he could, with impunity, direct speech at the school community which 

threatens, harasses, and intimidates teachers and, as a result, objected to 

being disciplined.

Put succinctly, “with near-constant student access to social networking 

sites on and off campus, when offensive and malicious speech is directed at 

school officials and disseminated online to the student body, it is reasonable to 

anticipate an impact on the classroom environment”. Snyder, 650 F.3d at 951–

52 (Fisher, J., dissenting). As stated, the school board reasonably could have 

forecast a substantial disruption at school, based on the threatening, 

intimidating, and harassing language in Bell’s rap recording.

B.

In considering Bell’s First Amendment claim, and our having affirmed 

summary judgment for the school board under Tinker, it is unnecessary to 

decide whether Bell’s speech also constitutes a “true threat” under Watts v. 

United States, 394 U.S. 705 (1969) (holding hyperbolic threats on the 

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President’s life are not “true threats”). See Elonis, 135 S. Ct. at 2012 (declining

to address the First Amendment question (whether the speech was a “true 

threat” not protected by that amendment) after resolving the case on other 

grounds).

III.

For the foregoing reasons, the judgment is AFFIRMED.

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E. GRADY JOLLY, specially concurring:

In determining the contours of constitutionally permissible school 

discipline, older cases are relevant for block building, but only block building, 

as we decide what speech schools may discipline under the First Amendment.

In Tinker, there was no threat to kill a teacher, no threat of violence, and no 

lewd or slanderous comments regarding a teacher. Tinker also did not address 

the intersection between on-campus speech and off-campus speech. When 

Tinker refers to a disruption, it is saying that student ideas may be expressed 

on campus unless they are so controversial that the expression creates a 

disruption. Those principles are controlling where the facts fit, but Tinker’s

admonitions—or the admonitions in various precedents—are not equally 

forceful in every case. The same can be said of Morse. It is perhaps more 

applicable here than Tinker, because it speaks in terms of physical and moral 

danger to students. Morse makes clear that such danger does not require proof 

of disruptive effects that the speech may cause, as would be required in the 

case of mere expression of non-lethal statements. 

It is true that in a footnote in Ponce we indicated that individual threats 

of violence are more appropriately analyzed in the light of Tinker as opposed 

to threats of mass violence, which we analyzed under Morse. These are 

evolving principles, however, and we now have before us a different case from 

Tinker, Morse, Ponce, or Porter. Tinker may well be a relevant precedent here. 

But that does not mean that all aspects of a political speech case must be 

slavishly applied to a case of threats to kill teachers. 

We should apply reasonable common sense in deciding these continually 

arising school speech and discipline cases, as we would in any case dealing with 

the evolving common law, which takes into account the technological and 

societal environs of the times. When Tinker was written in 1969, the use of 

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the Internet as a medium for student speech was not within the Court’s mind.

It is also true that this issue was not in the forefront of the Court’s mind when 

Porter was written in 2004, or even when Morse and Ponce were written. Ever

since Morse, the use, the extent and the effect of the online speech seem to have 

multiplied geometrically.

Judges should also view student speech in the further context of public 

education today—at a time when many schools suffer from poor performance, 

when disciplinary problems are at their highest, and when schools are, in many 

ways, at their most ineffective point. Judges should take into account the effect 

the courts have had on these problems in school discipline. Increasing judicial 

oversight of schools has created unforeseen consequences, for teachers and for

schools as much as for students. Students feel constraints on conduct and 

personal speech to be more and more permissive. Teachers will decide not to 

discipline students, given the likelihood of protracted litigation and its 

pressures on the time and person of those who work hard to keep up with the 

increasing demands placed on them as teachers. Schools will not take on the 

risk of huge litigation costs when they could use these resources on school 

lunches, textbooks, or other necessary school resources to educate children, all 

of which are sorely lacking in so many, many instances.

Judges can help to address these concerns by speaking clearly, succinctly 

and unequivocally. I would decide this case in the simplest way, consonant 

with our cases and the cases in other circuits, by saying as little as possible 

and holding:

Student speech is unprotected by the First 

Amendment and is subject to school discipline when that 

speech contains an actual threat to kill or physically harm 

personnel and/or students of the school; which actual 

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threat is connected to the school environment; and which 

actual threat is communicated to the school, or its students, 

or its personnel. 

With these comments, I join Judge Barksdale’s opinion.

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JENNIFER WALKER ELROD, Circuit Judge, joined by JONES, Circuit 

Judge, concurring:

I fully concur in the careful, well-reasoned majority opinion, because 

Bell’s rap was directed to the school and contained threats of physical violence. 

See Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1069 (9th Cir. 2013)

(declining to consider threshold tests from other circuits and holding only that 

schools may discipline off-campus student speech under the Tinker standard 

“when faced with an identifiable threat of school violence”); see also Morse v. 

Frederick, 551 U.S. 393, 424 (2007) (Alito, J., concurring) (remarking that “any 

argument for altering the usual free speech rules in the public schools . . . 

must . . . be based on some special characteristic of the school setting,” and 

recognizing only one such special characteristic: “threat[s] to the physical 

safety of students”); Ponce v. Socorro Ind. Sch. Dist., 508 F.3d 765, 770–72 (5th 

Cir. 2007) (interpreting Morse to allow punishment of off-campus speech 

threatening a mass shooting). 

Most importantly, nothing in the majority opinion makes Tinker

applicable off campus to non-threatening political or religious speech, even 

though some school administrators might consider such speech offensive, 

harassing, or disruptive. See Morse, 551 U.S. at 403, 409 (majority opinion) 

(noting that the student speech in Morse did not “convey[] any sort of political 

or religious message” and recognizing that while “much political and religious 

speech might be perceived as offensive to some,” such speech “is at the core of 

what the First Amendment is designed to protect”) (internal quotation marks 

omitted); id. at 422–23, 424 (Alito, J., concurring) (emphasizing the First 

Amendment’s protection of speech that comments on political or social issues 

and observing that “[i]t is . . . wrong to treat public school officials, for purposes 

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relevant to the First Amendment, as if they were private, nongovernmental

actors standing in loco parentis”).

Indeed, as Judge D. Brooks Smith has cautioned, because Tinker allows 

the suppression of student speech (even political speech) based on its 

consequences rather than its content, broad off-campus application of Tinker

“would create a precedent with ominous implications. Doing so would empower 

schools to regulate students’ expressive activity no matter where it takes place, 

when it occurs, or what subject matter it involves—so long as it causes a 

substantial disruption at school.” See J.S. ex rel. Snyder v. Blue Mountain Sch. 

Dist., 650 F.3d 915, 939 (3d Cir. 2011) (en banc) (Smith, J., concurring) (fivejudge concurrence opining that Tinker does not apply off campus). I agree with 

my learned colleague on the Third Circuit that the First Amendment does not, 

for example, allow a public school to punish a student for “writ[ing] a blog entry 

defending gay marriage” from his home computer, even if the blog entry causes 

a substantial disruption at the school. Id. (Smith, J., concurring). 

By my read, the majority opinion avoids such “ominous implications” and 

does not subject a broad swath of off-campus student expression to Tinker. 

Rather, it quite sensibly decides only the case before it, applying Tinker to 

Bell’s rap, which was intentionally directed toward the school and contained 

threats of physical violence. Because this cautious approach does not place 

public school officials in loco parentis or confer upon them a broad power to 

discipline non-threatening off-campus speech, I concur in full.

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GREGG COSTA, Circuit Judge, joined by OWEN and HIGGINSON, Circuit 

Judges, concurring: 

This case involves two serious problems that arise all too frequently in 

today’s classrooms: violence and sexual harassment. Judge Dennis’s dissent

points out that the harassment of female students is a matter of vital public 

concern that Bell’s song sought to expose. The problem for Bell is that his 

song—with its graphic discussion of violence against the coaches—goes well 

beyond blowing the whistle on the alleged harassment. 

Judge Dennis’s dissent contends that these whistleblowing aspects of the 

song nonetheless entitle the speech to “special protection” under the First 

Amendment. Dissent at 1, 12. It treats this argument as a separate basis for 

ruling in Bell’s favor. But fitting this case within Snyder v. Phelps, public 

employee speech cases like Pickering, and the litany of other cited cases 

assumes that Tinker is not implicated. Tinker, of course, involved speech on 

not just a matter of public concern, but the public concern of its day—the war 

in Vietnam. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504 

(1969). Yet the Court still balanced the value of that speech against its impact 

on the learning environment. See id. at 509. That disruption analysis may 

well have come out differently had the Tinkers combined their armband 

protest with talk of violence. Identifying some aspect of Bell’s song that 

addresses a matter of public concern therefore is not enough to elevate it above 

the Tinker framework unless Tinker does not apply to this type of off-campus 

speech (in which case the speech would enjoy First Amendment protection from 

school discipline so long as it constitutes any form of protected speech, not just 

the “highest rung”).

Whichever First Amendment doctrine one tries to latch onto, the 

inescapable question is thus whether Tinker’s balancing approach governs “off-

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campus” student speech that is directed at the school community. For the 

reasons discussed in the majority opinion, along with the views expressed by 

every other circuit that has taken a position on this issue, I agree that it does,

at least when the speech is threatening, harassing, and intimidating as it is 

here.

Broader questions raised by off-campus speech will be left for another 

day. That day is coming soon, however, and this court or the higher one will 

need to provide clear guidance for students, teachers, and school 

administrators that balances students’ First Amendment rights that Tinker

rightly recognized with the vital need to foster a school environment conducive 

to learning. That task will not be easy in light of the pervasive use of social 

media among students and the disruptive effect on learning that such speech 

can have when it is directed at fellow students and educators. Indeed, 

although Judge Dennis’s dissent extols the aspects of Bell’s song that sought 

to combat sexual harassment, the blanket rule it advocates—one that would 

deprive schools of any authority to discipline students for off-campus speech 

published on social media no matter how much it disrupts the learning 

environment—would allow sexual harassment and ferocious cyberbullying

that affect our classrooms to go unchecked. See Morrow v. Balaski, 719 F.3d 

160, 164 (3d Cir. 2013) (describing multiple cyberbullying incidents in which 

students were threatened by phone and on MySpace by another student);

S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 773 (8th Cir. 

2012) (explaining that students’ posts on a blog they created “contained a 

variety of offensive and racist comments as well as sexually explicit and 

degrading comments about particular female classmates, whom they identified 

by name”); Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565, 568 (4th Cir. 2011) 

(detailing online bullying incident in which high school students created 

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webpage called “Students Against Shay’s Herpes” in reference to another high 

school student).

With these additional observations, I join the majority opinion.

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JAMES L. DENNIS, Circuit Judge, with whom GRAVES, Circuit Judge, joins 

in full, and with whom PRADO, Circuit Judge, joins except as to Parts I and 

II. B., dissenting:

Although mischaracterizing itself as “narrow” in scope, the en banc

majority opinion broadly proclaims that a public school board is 

constitutionally empowered to punish a student whistleblower for his purely 

off-campus Internet speech publicizing a matter of public concern. As if to 

enforce the adage that “children should be seen and not heard,” the majority 

opinion holds that the Itawamba County School Board did not violate the First 

Amendment when it suspended high school senior Taylor Bell for composing 

and posting a rap song on the Internet using his home computer during nonschool hours, which criticized two male teachers for their repeated sexual 

harassment of minor female students. In my view, the majority opinion 

commits serious constitutional and summary-judgment procedural errors 

because: (1) Bell is entitled to summary judgment because his off-campus rap 

song was specially protected speech on a matter of public concern; (2) the 

School Board was not authorized by Tinker v. Des Moines Independent 

Community School District, 393 U.S. 503 (1969), to censor students’ off-campus 

online speech; and (3) even assuming arguendo that Tinker granted the School 

Board power to censor such speech, the School Board was not entitled to 

summary judgment under Tinker, because the evidence, viewed in the light 

favorable to the non-movant, Bell, does not support the conclusion that Bell’s 

speech caused a substantial disruption of school activities or justified a 

reasonable forecast of such a disruption by school officials. The majority 

opinion thereby denigrates and undermines not only Bell’s First Amendment 

right to engage in off-campus online criticism on matters of public concern but 

also the rights of untold numbers of other public school students in our 

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jurisdiction to scrutinize the world around them and likewise express their offcampus online criticism on matters of public concern. In doing so, the majority 

opinion obliterates the historically significant distinction between the 

household and the schoolyard by permitting a school policy to supplant 

parental authority over the propriety of a child’s expressive activities on the 

Internet outside of school, expanding schools’ censorial authority from the 

campus and the teacher’s classroom to the home and the child’s bedroom. 

As detailed herein, the majority opinion commits a number of 

fundamental errors that necessitate highlighting lest readers be misinformed 

by its version of the relevant facts and law. First and foremost, the majority 

opinion erroneously fails to acknowledge that Bell’s rap song constitutes 

speech on “a matter of public concern” and therefore “occupies the highest rung 

of the hierarchy of First Amendment values.” See Snyder v. Phelps, 562 U.S. 

443, 452 (2011) (internal quotation marks and citation omitted). Instead, by 

narrowly focusing its analysis on a few, plainly rhetorical lyrics in Bell’s song, 

the majority opinion wholly glosses over the urgent social issue that Bell’s song 

lays bare and thus flouts Supreme Court precedent requiring us to evaluate 

whether “the overall thrust and dominant theme of [Bell’s song] spoke to 

broader public issues”—which it did. See id. at 454. 

Second, in drastically expanding the scope of schools’ authority to 

regulate students’ off-campus speech, the majority opinion disregards Supreme 

Court precedent establishing that minors are entitled to “significant” First 

Amendment protection, including the right to engage in speech about violence 

or depicting violence, and that the government does not enjoy any “free-floating 

power to restrict the ideas to which children may be exposed.” See Brown v. 

Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2735–36 (2011). Similarly, the 

majority opinion also altogether fails to consider Supreme Court precedents 

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that substantially restrict the government’s ability to regulate Internet speech, 

Reno v. American Civil Liberties Union, 521 U.S. 844, 868–70 (1997), and the 

extent to which the majority opinion’s vague framework fails to provide 

constitutionally adequate notice of when student speech crosses the line 

between permissible and punishable off-campus expression, see id. at 871–72; 

accord Brown, 131 S. Ct. at 2744–46 (Alito, J., concurring). Further, by 

deriving its rule from a school policy that focuses on whether a layperson might 

view Bell’s speech as “threatening,” “harassing,” or “intimidating,” the 

majority opinion ignores First Amendment precedents demanding that the 

government prove more than mere negligence before imposing penalties for socalled “threatening” speech. See Virginia v. Black, 538 U.S. 343, 359 (2003); 

N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 904, 928–29 (1982). 

Third, by holding that the Tinker framework applies to off-campus 

speech like Bell’s, the majority opinion simply ignores that Tinker’s holding 

and its sui generis “substantial-disruption” framework are expressly grounded 

in “the special characteristics of the school environment,” Tinker v. Des Moines 

Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), and the need to defer to 

school officials’ authority “to prescribe and control conduct in the schools,” id. 

at 507 (emphasis added), whereas Bell’s rap song was recorded and released 

entirely outside the school environment. The Court’s post-Tinker precedents 

make clear this critical distinction. See, e.g., Morse v. Frederick, 551 U.S. 393, 

422 (2007) (Alito, J., concurring) (noting that Tinker allows schools to regulate 

“in-school student speech . . . in a way that would not be constitutional in other 

settings”). In this regard, the majority opinion also fails to account for the vital 

fact that the Tinker framework is far too indeterminate of a standard to 

adequately protect the First Amendment right of students, like Bell, to engage 

in expressive activities outside of school, as well as their parents’ constitutional 

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right to direct their children’s upbringing and the First Amendment right of 

adults and children alike to receive students’ speech. In other words, the 

majority opinion allows schools to police their students’ Internet expression 

anytime and anywhere—an unprecedented and unnecessary intrusion on 

students’ rights. 

Fourth and finally, the majority opinion also errs in its very application 

of the Tinker framework. As detailed in the panel majority’s opinion, the 

summary-judgment evidence simply does not support the conclusion, as 

required by Tinker, that Bell’s song substantially disrupted school activities or 

that school officials reasonably could have forecasted that it would do so. In 

reaching the opposite conclusion, the majority opinion not only fails to view the 

summary-judgment evidence in the light most favorable to the non-movant, 

Bell, accord Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014), but also dilutes the 

Tinker “substantial-disruption” framework into an analytic nullity. 

Even in the most repressive of dictatorships, the citizenry is “free” to 

praise their leaders and other people of power or to espouse views consonant 

with those of their leaders. “Freedom of speech” is thus a hollow guarantee if 

it permits only praise or state-sponsored propaganda. Freedom of speech 

exists exactly to protect those who would criticize, passionately and 

vociferously, the actions of persons in power. But that freedom is denied to 

Bell by the majority opinion because the persons whose conduct he dared to 

criticize were school teachers. If left uncorrected, the majority opinion 

inevitably will encourage school officials to silence student speakers, like 

Taylor Bell, solely because they disagree with the content and form of their 

speech, particularly when such off-campus speech criticizes school personnel. 

Such a precedent thereby clearly contravenes the basic principle that, “[i]n our 

system, students may not be regarded as closed-circuit recipients of only that 

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which the States chooses to communicate. They may not be confined to 

expression of those sentiments that are officially approved.” Tinker, 393 U.S. 

at 511. Today, however, the majority opinion exempts the children of Texas, 

Louisiana, and Mississippi from this long-established constitutional 

safeguard. Because the majority opinion’s undue deference to a public school 

board’s assertion of authority to censor the speech of students while not within 

its custody impinges the very core of our Constitution’s fundamental right to 

free speech, I respectfully but emphatically dissent.

I.

The en banc majority opinion completely ignores Bell’s argument that 

the School Board violated his First Amendment rights in punishing him for his 

rap song, which he contends was protected speech on “a matter of public 

concern.” Although Bell strenuously made his “speech on a matter of public 

concern” argument at every opportunity, including at the en banc oral 

argument, the en banc majority opinion fails to address this critical point. 

Instead, the majority opinion transforms the Itawamba County School Board 

disciplinary policy into an unprecedented rule of constitutional law that 

effectively permits school officials across our Circuit to punish a student’s 

protest of teacher misconduct regardless of when or where the speech occurs 

and regardless of whether the student speaker is, at the time of the speech, an 

adult or a minor fully within the custody and control of his or her parents. I 

respectfully but strongly disagree with the majority opinion’s silent rejection 

of Bell’s argument, not only because Bell’s argument is meritorious, but also 

because the opinion’s sub silentio decision of the issue presented has led it into 

several serious and unfortunate constitutional errors. 

Speech on “matters of public concern” is “at the heart of the First 

Amendment’s protection.” Snyder v. Phelps, 562 U.S. 443, 451–52 (2011) 

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(internal quotation marks and citation omitted). “The First Amendment 

reflects ‘a profound national commitment to the principle that debate on public 

issues should be uninhibited, robust, and wide-open.’” Id. at 452 (quoting New 

York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). “That is because ‘speech 

concerning public affairs is more than self-expression; it is the essence of selfgovernment.’” Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964)). 

“Accordingly, ‘speech on public issues occupies the highest rung of the 

hierarchy of First Amendment values, and is entitled to special protection.’” 

Id. (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)). 

Although the Supreme Court has noted that “the boundaries of the public 

concern test are not well defined,” San Diego v. Roe, 543 U.S. 77, 83 (2004) (per 

curiam), it has “articulated some guiding principles, principles that accord 

broad protection to speech to ensure that courts themselves do not become 

inadvertent censors,” Snyder, 562 U.S. at 452. “Speech deals with matters of 

public concern when it can be fairly considered as relating to any matter of 

political, social, or other concern to the community, or when it is a subject of 

legitimate news interest; that is, a subject of general interest and of value and 

concern to the public.” Id. at 453 (internal quotation marks and citations 

omitted). “The arguably ‘inappropriate or controversial character of a 

statement is irrelevant to the question whether it deals with a matter of public 

concern.’” Id. (quoting Rankin v. McPherson, 483 U.S. 378, 387 (1987)). 

Determining whether speech involves a matter of public concern 

“requires us to examine ‘the content, form, and context’ of th[e] speech, as 

revealed by the record as a whole.” Id. (quoting Dun & Bradstreet, Inc. v. 

Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985)). “As in other First 

Amendment cases, the court is obligated ‘to make an independent examination 

of the whole record in order to make sure that the judgment does not constitute 

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a forbidden intrusion on the field of free expression.’” Id. (quoting Bose Corp. 

v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984)). “In 

considering content, form, and context, no factor is dispositive, and it is 

necessary to evaluate all the circumstances of the speech, including what was 

said, where it was said, and how it was said.” Id. at 454. 

In Snyder, the Supreme Court applied this framework to hold that the 

First Amendment barred an aggrieved father from recovering for, inter alia, 

intentional infliction of emotional distress, against an anti-gay church 

congregation whose picketing coincided with the funeral of his son, who was a 

marine, notwithstanding the alleged outrageousness and hurtfulness of the 

picketers’ speech to Snyder. 1 562 U.S. at 460. Specifically, in that case, Fred 

Phelps, the founder of the Westboro Baptist Church, traveled to Maryland, 

along with six parishioners, in order to hold a protest on public property 1,000 

feet from the funeral of Marine Lance Corporal Matthew Snyder, who was 

killed in Iraq in the line of duty. Id. at 448. The picketing was conducted under 

police supervision and out of the sight of those at the church. Id. at 457. The 

protest was not unruly; there was no shouting, profanity, or violence. Id. The 

record confirms that any distress occasioned by Westboro’s picketing turned on 

the content and viewpoint of the message conveyed, rather than any 

interference with the funeral itself. Id. The picketers peacefully displayed 

signs that read “God Hates the USA/Thank God for 9/11,” “America is 

Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for 

Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re 

Going to Hell,” and “God Hates You.” Id. at 448. The Westboro picketers 

 

1 “The funeral procession passed within 200 to 300 feet of the picket site. Although 

Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he 

did not see what was written on the signs until later that night, while watching a news 

broadcast covering the event.” Id. at 449.

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displayed these signs for about 30 minutes before the funeral began. Id. at 

449. 

Snyder’s father thereafter filed a diversity action against Phelps and 

other picketers alleging, inter alia, state tort claims of intentional infliction of 

emotional distress, intrusion upon seclusion, and civil conspiracy. Id. at 449–

50. After a jury awarded millions of dollars in damages, Phelps and his 

congregants argued that they were entitled to judgment as a matter of law 

because the First Amendment fully protected their speech. Id. at 450. The 

district court reduced the punitive damages award, but left the verdict 

otherwise intact. Id. The Fourth Circuit reversed, concluding that Westboro's 

statements were entitled to First Amendment protection because those 

statements “were on matters of public concern, were not provably false, and 

were expressed solely through hyperbolic rhetoric.” Id. at 451. 

The Supreme Court granted certiorari and affirmed. Id. at 461. 

Evaluating the “content, form and context” of the congregants’ protest, the 

Court concluded that Westboro’s speech addressed a matter of public concern 

and was entitled to “special protection” under the First Amendment, thus 

barring Snyder from recovering in tort on the basis of the “outrageousness” of 

their speech. Id. at 458. According to the Court: 

Such speech cannot be restricted simply because it is upsetting or 

arouses contempt. “If there is a bedrock principle underlying the 

First Amendment, it is that the government may not prohibit the 

expression of an idea simply because society finds the idea itself 

offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 

(1989). Indeed, “the point of all speech protection . . . is to shield 

just those choices of content that in someone's eyes are misguided, 

or even hurtful.” Hurley v. Irish-American Gay, Lesbian and 

Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995). 

Id. Further, the Court concluded: 

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Westboro believes that America is morally flawed; many 

Americans might feel the same about Westboro. Westboro’s

funeral picketing is certainly hurtful and its contribution to public 

discourse may be negligible. But Westboro addressed matters of 

public import on public property, in a peaceful manner, in full 

compliance with the guidance of local officials. The speech was 

indeed planned to coincide with Matthew Snyder's funeral, but did 

not itself disrupt that funeral, and Westboro’s choice to conduct its 

picketing at that time and place did not alter the nature of its 

speech.

Speech is powerful. It can stir people to action, move them to tears 

of both joy and sorrow, and—as it did here—inflict great pain. On 

the facts before us, we cannot react to that pain by punishing the 

speaker. As a Nation we have chosen a different course—to protect 

even hurtful speech on public issues to ensure that we do not stifle 

public debate. That choice requires that we shield Westboro from 

tort liability for its picketing in this case.

Id. at 460-461.

Applying these principles to the instant case, the record indisputably 

reveals that Bell’s speech addressed a matter of public concern. Bell composed 

his song after a number of his female friends at school informed him that 

Coaches Wildmon and Rainey had frequently sexually harassed them during 

school. The lyrics of Bell’s song2 describe in detail the female students’ 

allegations of sexual misconduct, e.g., describing Coach Wildmon as “telling 

students that they [were] sexy,” and Coach Rainey as “rubbing on the black 

girls’ ears in the gym.” With a darkly parodic—and, by many standards, 

crude—tone, the song ridicules the coaches for their outrageously 

inappropriate conduct with the female students, e.g., describing one coach as 

having “drool running down [his] mouth” while he “look[s] down girls’ shirts,” 

 

2 Bell's Facebook page labels the song “P.S. Koaches,” but Bell's complaint identifies 

the song's title as “PSK The Truth Needs to be Told.”

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and positing that Wildmon is “fucking around” because of his wife’s appearance 

(the song states that “his wife ain’t got no titties”).3 By describing Rainey as 

“Bobby Hill the second,” the song also draws parallels between the coaches’ 

alleged sexual misconduct and the alleged sexual misconduct of a former 

Itawamba coach, Bobby Hill, who was arrested the previous year for sending 

sexually explicit text messages to a female student. Although the song does 

contain some violent lyrics, the song’s overall “content” is indisputably a darkly 

sardonic but impassioned protest of two teachers’ alleged sexual misconduct, 

e.g., opining that Rainey is “a fool/30 years old fucking with students at the 

school.” That Bell’s song may fall short of the School Board’s aesthetic 

preferences for socio-political commentary is not relevant to determining 

whether the rap song’s content addresses a matter of public concern. See, e.g., 

Snyder, 562 U.S. at 453 (observing that “[t]he arguably inappropriate or 

controversial character of a statement is irrelevant to the question whether it 

deals with a matter of public concern”) (internal quotation marks omitted). In 

Snyder, the Supreme Court explicitly rejected the argument that the crude and 

egregiously offensive messages on the anti-gay protesters’ signs—which 

included “Fag Troops,” “God Hates the USA/Thank God for 9/11” and “Thank 

God for Dead Soldiers”—should affect the inquiry into whether the signs 

addressed a matter of public concern. Id. at 454. According to the Court, 

 

3 Notably, the instances of sexual misconduct detailed in Bell’s lyrics were not 

unsubstantiated. Four different female students submitted sworn affidavits detailing the 

sexual harassment they endured at the hands of the coaches. For instance, consistent with 

Bell’s lyrics, one female student stated in her sworn affidavit that Rainey had rubbed her 

ears without her permission. Likewise, another female student claimed that Wildmon had 

looked down her shirt; told her that she “was one of the cutest black female students” at 

Itawamba; commented on her “big butt”; and told her that he “would date her if [she] were 

older.” Another female student consistently stated that Rainey told her, “Damn, baby, you 

are sexy,” while in the school gym. Another female student stated that Rainey told her that 

he would “turn” her “back straight from being gay.” 

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“[w]hile these messages may fall short of refined social or political 

commentary, the issues they highlight . . . are matters of public import.” Id. 

So much more so here where Bell addresses a serious issue of alleged teacher 

sexual misconduct toward minor students. Indeed, similar to Snyder, even if 

some of Bell’s lyrics were crude and contained violent imagery, “th[is] would 

not change the fact that the overall thrust and dominant theme of [Bell’s song] 

spoke to broader public issues.” See id. 

The “form” of Bell’s speech, i.e., a rap song, likewise militates in favor of 

finding that it addresses a matter of public concern. It is axiomatic that music, 

like other art forms, has historically functioned as a mechanism to raise 

awareness of contemporary social issues.4 Rap is no exception. “Over the past 

twenty years there has been extensive academic discourse on the role of rap 

music . . . as a form of political expression.” Commonwealth v. Gray, 463 Mass. 

731, 755 n.24 (2012) (collecting authorities). A long aspiring rap artist 

himself,5 Bell invoked this same tradition by deploying the artistic conventions 

and style of the rap genre in order to critique the coaches’ sexual harassment 

of female students.

Finally, the “context” of Bell’s speech likewise evinces that it addresses 

a matter of public import. By releasing his song on the Internet, Bell sought 

to bring attention to the coaches’ sexual misconduct against his female 

classmates, just as the Westboro group in Snyder sought to bring attention to 

its protest by picketing in public. See Snyder, 562 U.S. at 454–55 (concluding 

that the “context” of “[the protesters’] signs, displayed on public land next to a 

 

4 See, e.g., Bob Dylan, The Times They Are A-Changin’, on The Times They Are a 

Changin’ (Columbia Records 1964) (“Come Senators, Congressmen, please heed the call. 

Don’t stand in the doorway, don’t block up the hall.”). 

5 Bell’s stage name is “T-Bizzle.” 

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public street, reflect the fact that the church finds much to condemn in modern 

society”). In a monologue introduction on the YouTube version of his song, Bell 

described the genesis of the rap as follows:

A lot of people been asking me lately you know what was my 

reasoning behind creating P.S. Koaches. It’s . . . something that’s 

been going on . . . for a long time [] that I just felt like I needed to 

address. I’m an artist . . . I speak real life experience. . . .

Later, at the Disciplinary Committee meeting, Bell likewise explained that the 

song was an effort to “speak out” on the issue of teacher-on-student sexual 

harassment.6 

Although Bell was an enrolled high school student, he was not within the 

custody of the school system when he initially composed, recorded, and posted 

his rap song on the Internet during the Christmas holidays. At that time he 

was eighteen years old but living with his mother, and therefore was an adult 

capable of making his own decisions as to expressing his views publicly. Even 

if he had still been a minor at the time he composed and posted his song, he 

would have been subject to the exclusive control, custody, and discipline of his 

parent—not the school system. See Shanley v. Ne. Indep. Sch. Dist., 462 F.2d 

960, 964 (5th Cir. 1972). Because Bell’s speech did not fall within any of the 

narrow unprotected categories of speech recognized by the Supreme Court (e.g., 

obscenity or a true threat),7 it was fully protected speech and presumptively 

 

6 Bell also explained that he did not immediately report the teachers’ misconduct to 

school authorities because, in his view, school officials generally ignored complaints by 

students about the conduct of teachers. 

7 Although the School Board claims that Bell’s speech constitutes a “true threat,” this 

argument is without merit for the reasons explained in the panel majority opinion. See Bell 

v. Itawamba Cnty. Sch. Bd., 774 F.3d 280, 300–03 (5th Cir. 2014) (explaining that Bell’s song 

did not constitute a “true threat,” “as evidenced by, inter alia, its public broadcast as a rap 

song, its conditional nature, and the reactions of its listeners”). In any event, as explained 

herein, the majority opinion does not conclude that Bell’s song was a true threat. See Maj. 

Op. pp. 26, 33–34. Nor could it. 

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not subject to governmental regulation or censorship on the basis of its content. 

See Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975) (“Speech that is 

neither obscene as to youths nor subject to some other legitimate proscriptions 

cannot be suppressed solely to protect the young . . .”). Beyond that basic First 

Amendment protection, however, the content, form, and context of Bell’s 

speech indisputably reveals that it was also entitled to “special protection” 

against censorship because it was speech on a matter of public concern 

safeguarded “at the heart” of the First Amendment’s protections. Snyder, 562 

U.S. at 451–52. Therefore, at a bare minimum, Bell was entitled to as much, 

if not more, First Amendment protection as tortfeasors and public employees 

when the state attempts to regulate their speech addressing matters of public 

concern. See, e.g., Snyder, 562 U.S. at 459–60 (holding that speakers on 

matters of public concern could not be held liable in tort for intentional 

infliction of emotional distress, intrusion upon seclusion, and civil conspiracy 

on the basis of their speech); United States v. Nat’l Treasury Employees Union, 

513 U.S. 454, 466–68 (1995) (explaining the restrictions upon the government 

to punish employees when they speak on matters of public concern); Rankin, 

483 U.S. at 386–89 (holding that threatening statement by public employee 

addressed a matter of public concern and government could not terminate her 

on the basis of that speech). Moreover, while it is not dispositive of this case, 

it bears mentioning that the School Board has never attempted to argue that 

Bell’s song stated any fact falsely. 

The majority opinion, however, wholly ignores these critical aspects of 

Bell’s speech,8 instead reflexively reducing Bell’s rap song to “intimidating, 

 

 

8 The majority opinion instead summarily concludes that the “misconduct alleged by 

Bell against the two teachers is, of course, not at issue.” See Maj. Op. p. 13. Of course, I 

agree that the veracity of these allegations is not the “issue” in this case anymore than the 

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harassing, and threatening” speech without any analysis whatsoever. Indeed, 

under the majority opinion’s newfound approach, Bell’s off-campus speech is 

regulable by school officials pursuant to Tinker because (i) Bell wanted his 

speech to be heard by community members and (ii) “a layperson” apparently 

would view some of the lyrics in the rap as “threatening,” “harassing,” and 

“intimidating.” As an initial matter, I am compelled to point out that the 

majority opinion’s test unabashedly adopts almost the precise wording of the 

Itawamba County School Board’s disciplinary policy. Unmoored from 

traditional constitutional law analysis, the majority opinion instead exalts this 

single school board’s policy to a new rule of constitutional law. See Maj. Op. p. 

25 (holding that Tinker applies where student’s off-campus speech is 

threatening, harassing and intimidating). 

Furthermore, Snyder itself squarely illumines the errors in the 

majority’s two-prong test. Turning first to the majority opinion’s flawed 

criticism of Bell’s intention to publicize his message, the Supreme Court in 

Snyder explicitly held that a speaker’s efforts to communicate his message to 

the public is a reason to provide his speech with heightened protection—not a 

reason to permit greater regulation by the state. 562 U.S. at 454–55 

(concluding that protesters’ decision to conduct their protest “on public land 

next to a public street” evinced that the speech addressed a matter of public 

concern). Yet, in direct contradiction to Snyder, the majority opinion’s 

proffered framework perversely faults Bell for his efforts to publicize the 

teachers’ sexual misconduct, thus creating precedent that contravenes the very 

 

veracity of Westboro’s signs was the “issue” in Snyder. What is at issue, however, is whether 

publicly protesting that alleged misconduct warrants “special protection” for Bell’s speech. 

The answer to that question, as explained above, is yes. In any event, however, Bell has 

offered uncontroverted proof of the coaches’ sexual harassment of the minor female students 

in the form of sworn affidavits detailing that abuse, which were introduced into evidence in 

this case.

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values that the First Amendment seeks to protect. See Hustler Magazine, Inc. 

v. Falwell, 485 U.S. 46, 50 (1988) (“At the heart of the First Amendment is the 

recognition of the fundamental importance of the free flow of ideas and 

opinions on matters of public interest and concern.”). 

In addition, contrary to the majority opinion’s focus on how a “layperson” 

apparently would perceive Bell’s speech, the Supreme Court’s cases, including 

Snyder, demonstrate that listeners’ subjective opinions about speech cannot 

control whether speech addresses a matter of public concern or not. For 

example, in Snyder, the Court explained that “[t]he arguably ‘inappropriate or 

controversial character of a statement is irrelevant to the question whether it 

deals with a matter of public concern.’” 562 U.S. at 453. (quoting Rankin, 483 

U.S. at 387). Specifically, in Snyder, a layperson likewise might have viewed 

the anti-gay protesters’ messages as harassing (“God Hates You”), intimidating 

(“You’re Going to Hell”), and threatening (“Thank God for Dead Soldiers,” 

“Thank God for IEDs”), but the Court nevertheless held that “the overall thrust 

and dominant theme of Westboro’s demonstration spoke to broader public 

issues” entitling it to “special protection.” Id. at 454. Thus, the “special 

protection” that must be afforded to Bell’s speech here cannot be qualified by 

the majority opinion’s mere conjecture that some hypothetical “layperson” 

might consider a few of Bell’s lyrics to fit the Oxford English Dictionary’s 

definition of “threatening,” “harassing” or “intimidating.” See id. Indeed, there 

is no constitutional basis for excluding “threatening,” “harassing,” or 

“intimidating” speech from the “special protection” that is afforded speech on 

matters of public concern. The majority opinion’s approach is thus tantamount 

to permitting mainstream sensitivities to define whether speech addresses a 

matter of public concern or not. Snyder clearly demonstrates that approach is 

flawed. Id. at 453; see also Cohen v. California, 403 U.S. 15, 21 (1971) 

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(recognizing that the First Amendment does not permit “a majority to silence 

dissidents simply as a matter of personal predilections”). 

In sum, by refusing to recognize that Bell’s speech addresses a matter of 

public concern and is thereby entitled to “special protection” against 

censorship, the majority opinion creates a precedent that effectively inoculates 

school officials against off-campus criticism by students. In so doing, the 

majority opinion fails to take seriously the long-established principle that the 

First Amendment was adopted to protect “vehement, caustic, and sometimes 

unpleasantly sharp attacks on government and public officials.” Sullivan, 376 

U.S. at 270; cf. City of Houston v. Hill, 482 U.S. 451, 465 (1987) (holding that 

the First Amendment does not permit states to “provide the police with 

unfettered discretion to arrest individuals for words or conduct that annoy or 

offend them”). Contrary to the majority opinion’s position, school officials are 

no exception. See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 

637 (1943) (“The Fourteenth Amendment . . . protects the citizen against the 

State itself and all of its creatures—Boards of Education not excepted.”); 

Shanley, 462 F.2d at 964 (“It should have come as a shock to the parents of 

five high school seniors . . . that their elected school board had assumed 

suzerainty over their children before and after school, off school grounds, and 

with regard to their children’s rights of expressing their thoughts. We trust 

that it will come as no shock whatsoever to the school board that their 

assumption of authority is an unconstitutional usurpation of the First 

Amendment.”). 

II.

The en banc majority opinion affirms the School Board’s punishment of 

Bell pursuant to its new and unprecedented rule of constitutional law whereby 

schools may punish students’ off-campus speech pursuant to Tinker if that 

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speech is intentionally directed at the school community and is “threatening, 

harassing, and intimidating” to the ears of a “layperson” without any 

instruction on the meaning of these terms. The majority opinion’s contentbased, vague, and “layperson”-based restriction directly conflicts with the core 

principles underlying the First Amendment’s guarantees as explained by the 

Supreme Court. 

A.

“The First Amendment provides that ‘Congress shall make no law . . .

abridging the freedom of speech.’” United States v. Stevens, 559 U.S. 460, 468

(2010). As a general matter, the First Amendment prohibits the government

from “restrict[ing] expression because of its message, its ideas, its subject

matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S.

564, 573 (2002). “From 1791 to the present, however, the First Amendment

has permitted restrictions upon the content of speech in a few limited areas,

and has never included a freedom to disregard these traditional limitations.” 

Stevens, 559 U.S. at 468. “These limited areas—such as obscenity, incitement,

and fighting words—represent well-defined and narrowly limited classes of

speech, the prevention and punishment of which has never been thought to

raise any constitutional problem.” Brown v. Entm’t Merchants Ass’n, 131 S.

Ct. 2729, 2733 (2011) (internal quotation marks and citations omitted).

In Brown, the Supreme Court specifically rejected the argument that

state officials retain a broad “free-floating power” to create whole new

categories of unprotected speech that are applicable solely to minors, even if

such speech is deemed harmful in the eyes of the government. Id. at 2735–36. 

In that case, the Court struck down as violative of the First Amendment a

California law that prohibited the sale or rental of violent video games to

minors. Id. at 2732-33. Specifically, the law proscribed the sale or rental to

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minors of video “games ‘in which the range of options available to a player

includes killing, maiming, dismembering, or sexually assaulting an image of a

human being, if those acts are depicted’ in a manner that ‘[a] reasonable

person, considering the game as a whole, would find appeals to a deviant or

morbid interest of minors,’ that is ‘patently offensive to prevailing standards

in the community as to what is suitable for minors,’ and that ‘causes the game,

as a whole, to lack serious literary, artistic, political, or scientific value for

minors.’” Id. (quoting Cal. Civ. Code. Ann. § 1746(d)(1)(A)). California

purportedly enacted the law based on its legislative judgment, which it claimed

was supported by research, that such games were harmful to children. Id. at

2738-39. In defending the law, California argued, inter alia, that the First

Amendment permitted it “to create a wholly new category of content-based

regulation that is permitted only for speech directed at children”—viz.,

“violent” speech as defined above that lacked “serious literary, artistic,

political, or scientific value for minors.” Id. at 2733–35. 

In a strongly worded opinion by Justice Scalia, the Supreme Court

rejected California’s arguments and struck down the law. Concluding that its

recent decision in United States v. Stevens, 559 U.S. 460 (2010),9 controlled the

 

9 In Stevens, the United States government had attempted to leverage similar 

arguments in defending a federal statute banning depictions of animal cruelty. 559 U.S. at 

468-69. The United States argued that “depictions of animal cruelty” should be added to the 

list of categories of unprotected speech, alongside obscenity, incitement, and defamation. Id. 

However, because there was no “tradition excluding depictions of animal cruelty from ‘the 

freedom of speech’ codified in the First Amendment,” the Court refused to create a new 

category of unprotected speech for such depictions. Id. The Court also explicitly rejected “as 

startling and dangerous” the government’s contention that it could create new categories of 

unprotected speech by applying a “simple balancing test” that weighs the value of a particular 

type of speech against its social costs. Id. at 470. According to the Court, 

[t]he First Amendment’s guarantee of free speech does not extend only to

categories of speech that survive an ad hoc balancing of relative social costs

and benefits. The First Amendment itself reflects a judgment by the American

people that the benefits of its restrictions on the Government outweigh the

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outcome of the case, the Court held that California could not defend its law by

analogizing the violent speech at issue to the obscenity exception to the First

Amendment because its prior “cases have been clear that the obscenity

exception . . . does not cover whatever a legislature finds shocking, but only

depictions of sexual conduct.” Id. at 2734. More critically, however, the Court

outright rejected California’s argument that the First Amendment permitted

the state “to create a wholly new category of content-based regulation,” i.e.,

speech containing violent imagery, “that is permissible only for speech directed

at children.” Id. at 2735. Although acknowledging that the state “possesses

legitimate power to protect children from harm,” the Court concluded that such

power “does not include a free-floating power to restrict the ideas to which

children may be exposed.” Id. at 2736. Further, while noting that California’s

argument would “fare better if there were a longstanding tradition in this

country of specially restricting children’s access to depictions of violence,” the

Court observed that there was no such tradition, as evidenced by the extent of

violence contained in common children’s stories (e.g., Hansel and Gretel) and

high school reading lists (e.g., the description in “Lord of the Flies” of a

schoolboy who is savagely murdered by other children). Id. at 2736. 

Accordingly, as in Stevens, because there was no “longstanding tradition” of

prohibiting minors’ participation in speech containing violent imagery, the

Court refused to hold that such speech is categorically exempted from First

Amendment protection. Id. at 2736-38. 

 

cost. Our Constitution forecloses any attempt to revise that judgment simply

on the basis that some speech is not worth it.

Id. A subsequent, much more narrow version of the statute at issue in Stevens, was upheld

by our court. United States v. Richards, 755 F.3d 269, 271, 279 (5th Cir. 2014) (discussing

history of 18 U.S.C. § 48 and upholding version that proscribed only “unprotected obscenity”),

cert. denied, 135 S. Ct. 1546 (2015). 

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Applying these principles to the instant case, Brown represents a forceful

reaffirmation by the Court that the First Amendment applies to minors,10 id.

at 2735, and that the government may only restrict that constitutional right in

“narrow and well-defined circumstances,” id. at 2736 (citing Erznoznik, 422

U.S. at 212–13). Indeed, after Brown, it cannot seriously be contested that

minors enjoy the First Amendment right to engage in speech containing violent

imagery when they are at home, away from school, so long as that speech does

not rise to the level of a true threat, incitement or fighting words. See id. at

2736-38 (holding that speech containing violent imagery is protected under the

First Amendment, even for minors). Nevertheless, the majority opinion wholly

fails to reckon with these important statements by the Court. Instead, by

simply assuming that all children speak “qua students,” its legal analysis

begins with the false premise that the speech at issue constitutes “student

speech” that must be “tempered in the light of a school official’s duty” to teach

students appropriate behavior. See Maj. Op. p. 14 (discussing the First

Amendment rights of “[s]tudents qua students”). But the Supreme Court has

never suggested that minors’ constitutional rights outside of school are

somehow qualified if they coincidentally are enrolled in a public school. To the

contrary, Brown evinces that the majority opinion instead should have begun

 

10 In so holding, the Court also explicitly rejected Justice Thomas’ contention in his 

dissent that minors have no right to speak absent their parents’ consent. Id. at 2736 n.3 

(noting that Justice Thomas “cites no case, state or federal, supporting this view, and to our 

knowledge there is none”). Although conceding that the government may have authority to 

enforce parental prohibitions in certain circumstances (e.g., forcing concert promoters not to 

admit minors whose parents have forbidden them from attending), the Court nevertheless 

observed that “it does not follow that the state has the power to prevent children from hearing 

or saying anything without their parents’ prior consent. The latter would mean, for example, 

that it could be made criminal to admit persons under 18 to a political rally without their 

parents’ prior written consent—even a political rally in support of laws against corporal 

punishment of children, or laws in favor of greater rights for minors.” Id. (emphasis in 

original). 

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its analysis from the basic premise that children are entitled to “significant”

First Amendment rights. 131 S. Ct. at 2735–36. 

Further, Brown and Stevens illuminate the error in the majority

opinion’s decision to proclaim an entirely new, content-based restriction on

students’ First Amendment rights. Although acknowledging that the

government has certain powers to protect children from harm, the Supreme

Court in Brown expressly held that this “does not include a free-floating power

to restrict the ideas to which children may be exposed.” 131 S. Ct. at 2736. In

so holding, the Court echoed the principles announced in Stevens and rejected

the argument that the state is empowered to carve out new “categorical

exemptions” to the First Amendment’s protections (e.g., obscenity) that are

solely applicable to minors absent a “longstanding tradition” of restricting such

speech. Id. In direct contradiction to these principles, however, the majority

opinion here affords state officials with precisely such a “free-floating power”

by effectively permitting them to regulate an unprecedented and content-based

category of speech, i.e., “threatening,” “harassing,” and “intimidating” speech

that is directed at the school community. Yet, the majority opinion cites no

“longstanding tradition” in this country of “specially restricting” children’s

ability to engage off campus in “threatening,” “harassing,” or “intimidating”

speech. Nor could it. See id. (“California’s argument would fare better if there

were a longstanding tradition in this country of specially restricting children’s

access to depictions of violence, but there is none.”); Stevens, 559 U.S. at 469

(“But we are unaware of any similar tradition excluding depictions of animal

cruelty from ‘the freedom of speech’ codified in the First Amendment, and the

Government points us to none.”). To the extent the majority opinion posits this

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category of speech is without redeeming social value11 or that its risks

outweigh its costs, the Supreme Court has flatly rejected such a rationale for

carving out new categories of unprotected speech. See Stevens, 559 U.S. at 470

(“The First Amendment’s guarantee of free speech does not extend only to

categories of speech that survive an ad hoc balancing of relative social costs

and benefits.”). In this connection, the Court in Brown likewise held that

majoritarian abhorrence for a category of speech (i.e., violent speech) will not

justify a categorical restriction upon that type of speech. See Brown, 131 S.

Ct. at 2733 (“Under our Constitution, esthetic and moral judgments about art

and literature . . . are for the individual to make, not for the Government to

decree, even with the mandate or approval of a majority.” (internal quotation

marks and citation omitted)). Moreover, contrary to the majority opinion’s

approach, the Supreme Court in both Brown and Stevens emphasized that the

“historic and traditional categories” of unprotected speech (e.g., fighting words,

obscenity) are “well defined and narrowly limited.” See Brown, 131 S. Ct. at

2733; Stevens, 559 U.S. at 468-69. Here, far from announcing a “narrow” or

“well defined” restriction on speech, the majority opinion simply declares that

schools may regulate off-campus student speech that its invented layperson

might consider “threatening,” “harassing,” or “intimidating.” As detailed

below, the breadth of these content-based restrictions will leave students to

speak at their own peril away from school, because school officials will be

unconstrained due to the majority opinion’s failure to provide any specific or

determinate definition of “threatening,” “harassing,” or “intimidating.”

 

11 However, as explained above, Bell’s speech clearly had “social value” as it 

constituted speech on a matter of public concern. 

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B.

The Court’s opinion in Reno v. American Civil Liberties Union, 521 U.S.

844 (1997), further reveals the flaws in the majority opinion’s holding that

schools may regulate students’ off-campus online speech, like Bell’s. Reno was

the first significant First Amendment case specifically pertaining to the

Internet to reach the Supreme Court, and concerned a facial challenge to a

congressional statute, the Communications Decency Act of 1996 (“CDA”),

which was aimed at protecting minors from “indecent” and “patently offensive”

material on the Internet by prohibiting the transmission of those materials to

minors. 521 U.S. at 858-59. In striking down the CDA as violative of the First

Amendment, the Court articulated a number of principles that are directly

pertinent to the instant case.

First, Reno reveals that the majority opinion here is in error in

concluding that the advent of the Internet and other technologies necessitates

expanding schools’ authority to regulate students’ off-campus speech. See Maj.

Op. p. 19. In direct contradiction to the majority opinion’s logic, the Court in

Reno held that Supreme Court precedents “provide no basis for qualifying the

level of First Amendment scrutiny that should be applied to [the Internet].” 

Id. at 870. Although the Court previously had recognized that special factors

justify greater regulation of speech expressed in broadcast media, see, e.g., FCC

v. Pacifica Foundation, 438 U.S. 726 (1978), the Court explicitly found that

“[t]hose factors are not present in cyberspace.” Reno, 521 U.S. at 868.12 

 

12 The Court in Brown echoed this principle in observing that government should not 

be afforded greater deference to restrict speech when new communication technologies 

emerge. 131 S. Ct. at 2733 (“[W]hatever the challenges of applying the Constitution to everadvancing technology, ‘the basic principles of freedom of speech and the press, like the First 

Amendment’s command, do not vary’ when a new and different medium for communication 

appears.”) (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952)); accord Citizens 

United v. Federal Election Comm’n, 558 U.S. 310, 326 (2010) (“Courts, too, are bound by the 

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Nevertheless, the majority opinion overlooks these unequivocal statements by

the Supreme Court. See, e.g., Maj. Op. p. 19 (concluding that “[t]he advent of

[the Internet and other] technologies and their sweeping adoption by students

present new and evolving challenges for school administrators, confounding

previously delineated boundaries of permissible regulations”). 

In addition, the Court’s analysis in Reno reveals how the majority

opinion’s ill-devised framework for regulating minors’ off-campus Internet

speech would be too vague altogether for the First Amendment to tolerate. The

Court in Reno took special issue with the vagueness of the terms that the CDA

utilized to describe the proscribed speech. Id. at 871. For example, the Court

emphasized that the statute did not define either “indecent” material or

material that “in context, depicts or describes, in terms patently offensive as

measured by contemporary community standards, sexual or excretory

activities or organs.” Id. As the Court observed, “[g]iven the absence of a

definition of either term, this difference in language will provoke uncertainty

among speakers about how the two standards relate to each other and just

what they mean. Could a speaker confidently assume that a serious discussion

about birth control practices, homosexuality, the First Amendment issues

raised by the Appendix to our Pacifica opinion, or the consequences of prison

rape would not violate the CDA?” Id.

Similar vagueness concerns drove Justice Alito to conclude that the

California “violent video game” regulation in Brown violated the Constitution. 

Brown, 131 S. Ct. at 2743-46 (Alito, J., joined by Roberts, C.J., concurring in

the judgment). As Justice Alito observed, one of the elements defining the

 

First Amendment. We must decline to draw, and then redraw, constitutional lines based on 

the particular media or technology used to disseminate political speech from a particular 

speaker.”). 

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proscribed violent video games was whether a “reasonable person, considering

[a] game as a whole,” would find that it “appeals to a deviant or morbid interest

of minors.” Id. at 2745. However, as Justice Alito observed, the “prevalence of

violent depictions in children’s literature and entertainment creates numerous

opportunities for reasonable people to disagree about which depictions may

excite ‘deviant’ or ‘morbid’ impulses.” Id. at 2746. 

Here, the en banc majority opinion similarly announces a new,

categorical restriction upon students’ off-campus speech that fails to “give

people of ordinary intelligence fair notice of what is prohibited.” See id. at

2743. Specifically, the majority opinion holds that school officials may punish

students’ off-campus speech when (i) it is intended to be heard by the school

community; (ii) could be perceived by a layperson as “threatening,” harassing,”

and “intimidating,”; and (iii) satisfies the Tinker “substantial-disruption”

framework. See Maj. Op. pp. 25–26. As with the statute struck down in Reno,

however, each one of these three prongs to the majority opinion’s framework

contains defects that fail to provide students, like Bell, with adequate notice of

when their off-campus speech crosses the critical line between protected and

punishable expression. First, the majority opinion’s focus on whether the

student “intended” his speech to reach the school community significantly

burdens the ability of students to engage in online speech, because virtually

any speech on the Internet can reach members of the school community. See

Reno, 521 U.S. at 870 (observing that the Internet permits “any person . . . [to]

become a town crier with a voice that resonates farther than it could from any

soapbox”). How, then, can a student be certain that his off-campus blog posting

will not be read by members of the school community and thereby be deemed

by school officials to be “intentionally direct[ed] at the school community”? As

a result of the ambiguities in the majority opinion’s framework, he simply

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cannot. See id. (“Through the use of Web pages, mail exploders, and

newsgroups, the same individual can become a pamphleteer.”). 

Second, the majority opinion’s “threatening, harassing, and

intimidating” test suffers from the precise same ambiguities that drove the

Court to strike down the CDA in Reno. As with the CDA, the majority opinion

fails to provide any meaningful definition of what constitutes “threatening,”

“harassing,” or “intimidating” speech. Rather, the majority opinion merely

concludes that if a “layperson would understand”13 speech to qualify as

“threatening,” “harassing,” and “intimidating,” then that speech is regulable

under Tinker. In so holding, the majority opinion fails to apprehend that

reasonable minds may differ about when speech qualifies as “threatening,”

harassing,” or “intimidating.” As the Supreme Court’s First Amendment

precedents make clear, “it is . . . often true that one man’s vulgarity is another’s

lyric,” Cohen v. California, 403 U.S. 15, 25 (1971), and that the very same

words may simultaneously be perceived as repulsive to some and political to

others, see Snyder, 562 U.S. at 444–45 (“Westboro may have chosen the picket

location to increase publicity for its views, and its speech may have been

particularly hurtful to Snyder. That does not mean that its speech should be

afforded less than full First Amendment protection under the circumstances of

 

13 Unfortunately, the majority opinion provides virtually no details about the identity 

of its apocryphal layperson. In any event, I am dubious that a school board may punish 

students for making statements at home and on the Internet that the most sensitive of 

listeners in society would find to be “threatening,” “harassing,” or “intimidating.” See 

Ashcroft, 542 U.S. at 674 (Stevens, J. concurring) (“I continue to believe that the Government 

may not penalize speakers for making available to the general World Wide Web audience 

that which the least tolerant communities in America deem unfit for their children’s 

consumption.”). Nevertheless, by permitting school officials to punish off-campus speech like 

Bell’s pursuant to Tinker, the majority opinion announces a precedent whereby the First 

Amendment rights of minors outside of school are “only . . . as strong as the weakest, or at 

least the most thin-skinned, listener in a crowd.” Cuff ex re. B.C. v. Valley Cent. Sch. Dist., 

677 F.3d 109, 120 (2d Cir. 2012) (Pooler, J., dissenting).

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this case.”). Thus, “[g]iven the vague contours of the coverage of the [majority

opinion’s framework], it [will] unquestionably silence[] some speakers whose

messages would be entitled to constitutional protection.” Reno, 521 U.S. at

874. 

Third, the aforementioned concerns are exacerbated by the fact that the

Tinker standard itself could be viewed as somewhat vague.14 Tinker permits

schools to regulate on-campus expressive activities not only when the speech,

in fact, causes a substantial disruption, but also when school officials can

“reasonably forecast” such a disruption, Tinker, 393 U.S. at 514. If this

standard were applied off campus, how can a student or a student’s parents

know with any degree of certainty when off-campus online speech can be

“forecasted” to cause a “substantial disruption”? Although Tinker is not a

completely toothless standard, see A.M. ex rel. McAllum v. Cash, 585 F.3d 214,

221 (5th Cir. 2009), its framework inherently requires guesswork about how a

third-party school official will prophesize over the effect of speech. Thus, in

light of the majority opinion, before a student drafts an email or writes a blog

entry, he hereinafter will be required to conjecture over whether his online

speech might cause a “disruption” that is “substantial” in the eyes of school

officials, or, alternatively, whether a school official might reasonably portend

that a substantial disruption might happen. In this way, the majority opinion

erroneously defines the contours of protected speech with reference to the

potential reactions of listeners. See Beckerman v. City of Tupelo, 664 F.2d 502,

509 (5th Cir. 1981) (observing that the Supreme Court’s cases concerning the

“hecklers’ veto” show that it “is not acceptable for the state to prevent a speaker

 

14 As explained below, this framework makes sense for student speech occurring on 

campus, where school officials have competing interests in maintaining conduct in the 

schools. However, this standard is inappropriate where, as here, the school’s interest is 

comparatively attenuated. 

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from exercising his constitutional rights because of the reaction to him by

others”). 

What will be the direct consequence of these various layers of vagueness

upon students’ First Amendment freedoms? “[I]t will operate[] to chill or

suppress the exercise of those freedoms by reason of vague terms or overbroad

coverage.” See Nevada Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2353

(2011) (Kennedy, J. concurring). Indeed, for students, whose performance at

school largely determines their fate in the future, even the specter of

punishment will likely deter them from engaging in off-campus expression that

could be deemed controversial or hurtful to school officials. Accord Reno, 521

U.S. at 871–72 (“The vagueness of such a regulation raises special First

Amendment concerns because of its obvious chilling effect on free speech.”).

Such a burden on student’s expressive activities simply cannot be reconciled

with the long-established principle that “the point of all speech protection . . .

is to shield [from censorship] just those choices of content that in someone’s

eyes are misguided, or even hurtful.” Hurley v. Irish–American Gay, Lesbian

and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995).

C.

Further, by adopting a rule that focuses on whether a “layperson” would

perceive Bell’s speech as “threatening,” “harassing,” and “intimidating,” the

majority opinion also ignores Supreme Court case law that demands a more

burdensome showing upon the government before levying penalties upon a

speaker based on the content of his speech. 

Amongst the most consistent principles of First Amendment

jurisprudence has been the need for “[e]xacting proof requirements” before

imposing liability for speech. See Illinois ex rel. Madigan v. Telemarketing

Associates, Inc., 538 U.S. 600, 620 (2003). For example, the Supreme Court

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has explicitly rejected arguments permitting tort liability to be imposed for

speech pertaining to public figures simply because it “is patently offensive and

is intended to inflict emotional injury.” Falwell, 485 U.S. at 50. Rather, in

order to “give adequate ‘breathing space’ to the freedoms protected by the First

Amendment,” the Court has held that a public figure must prove not only

falsity but also actual malice. Id. at 56. Similarly, in the criminal context,

“mens rea requirements . . . provide ‘breathing room’ for more valuable speech

by reducing an honest speaker’s fear that he may accidentally incur liability

for speaking.” United States v. Alvarez, 132 S. Ct. 2537, 2553 (2012) (Breyer,

J., concurring in the judgment). Thus, in Brandenburg v. Ohio, 395 U.S. 444

(1969), the Supreme Court reversed the conviction of a Ku Klux Klan leader

for threatening “revengeance” if the “suppression” of the white race continued,

relying on “the principle that the constitutional guarantees of free speech and

free press do not permit a State to forbid or proscribe advocacy of the use of

force or of law violation except where such advocacy is directed to inciting or

producing imminent lawless action and is likely to incite or produce such

action.” Id. at 447 (emphasis added); see also Noto v. United States, 367 U.S.

290, 297–98 (1961) (“[T]he mere abstract teaching of . . . the moral propriety or

even moral necessity for a resort to force and violence, is not the same as

preparing a group for violent action and steeling it to such action.”). 

Subsequently, the Court applied Brandenberg’s focus on the “intent” of the

speaker to hold that a speaker may not be held liable for damages in a civil

case even when his remarks “might have been understood . . . as intending to

create a fear of violence.” N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886,

904, 927 (1982) (emphasis added). 

Applying these well-established First Amendment principles, the

Supreme Court in Virginia v. Black, 538 U.S. 343 (2003), struck down a

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Virginia statute that criminalized burning a cross in public “with the intent of

intimidating any person,” and which provided that the public burning of a cross

“shall be prima facie evidence of an intent to intimidate.” Id. at 347–48. 

Although cross burning is “widely viewed as a signal of impending terror,” id.

at 391 (Thomas, J., concurring), “in light of [its] long and pernicious history as

a signal of impending violence,” id. at 363 (opinion of O’Connor, J.), a plurality

of the Court held that a subjective intent requirement was necessary in order

to distinguish “constitutionally proscribable intimidation” from “core political

speech,” id. at 365–66. “Intimidation in the constitutionally proscribable sense

of the word is a type of true threat, where a speaker directs a threat to a person

or group of persons with the intent of placing the victim in fear of bodily harm

or death.” Id. at 360 (emphasis added). As the plurality explained, the prima

facie evidence provision of the statute was facially unconstitutional because it

“ignore[d] all the contextual factors that are necessary to decide whether a

particular cross burning was intended to intimidate. The First Amendment

does not permit such a short cut.” Id. at 367. In other words, the prima facie

evidence provision “strip[ped] away the very reason a state may ban cross

burning with the intent to intimidate.” Id. at 365. 

Recently, in Elonis v. United States, 135 S. Ct. 2001 (2015), the Supreme

Court was presented with the opportunity to revisit its reasoning in Virginia

v. Black and clarify whether or not the First Amendment requires a speaker to

have a “subjective intent” to threaten an individual before the government can

impose criminal penalties for a threat. Id. at 2004 (“The question is whether

[18 U.S.C. § 875(c)] . . . requires that the defendant be aware of the threatening

nature of the communication, and—if not—whether the First Amendment

requires such a showing.”). The Court, however, avoided this constitutional

question by deciding the case on narrower grounds, viz., that a jury instruction

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explaining that petitioner could be convicted upon a showing of negligence was

inconsistent with the statute’s implicit mens rea requirement. Id. at 2012

(“The jury was instructed that the Government need only prove that a

reasonable person would regard Elonis’s communications as threats, and that

was error. . . . Given our disposition, it is not necessary to consider any First

Amendment issues.”). Specifically, the Court outright rejected the

government’s contention that the statute permitted petitioner to be convicted

if he (i) knew the “contents and context” of his speech and (ii) “a reasonable

person would have recognized that the [speech] would be read as genuine

threats.” Id. at 2011. While recognizing that such a “‘reasonable person’

standard is a familiar feature of civil liability in tort law,” the Court concluded

that the standard is “inconsistent with the conventional requirement for

criminal conduct—awareness of some wrong doing.” Id. (internal quotation

marks omitted). 

Applying the foregoing principles to the instant case, the majority

opinion errs by making the scope of Bell’s First Amendment rights outside of

school contingent upon whether a “layperson” might interpret his speech to be

“threatening,” “harassing,” and “intimidating,” see Maj. Op. pp. 26–27, and

whether a school official might “reasonably” forecast a substantial disruption

based on his speech, see Maj. Op. pp. 30–31. The majority opinion’s test

effectively amounts to the very kind of negligence standard that the Supreme

Court has rejected for determining whether a speaker may be held liable on

the basis of his words. See, e.g., Claiborne Hardware Co., 458 U.S. at 928–29;

Brandenburg, 395 U.S. at 447. Further, by permitting Bell to be punished

solely on the basis that a third-party might consider his speech “intimidating”

or “threatening,” the majority opinion ignores the Court’s explanation in Black

that “[i]ntimidation in the constitutionally proscribable sense of the word is a

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type of true threat, where a speaker directs a threat to a person or group of

persons with the intent of placing the victim in fear of bodily harm or death.” 

538 U.S. at 360 (emphasis added). Instead, perhaps conceding sub silentio that

Bell’s speech does not satisfy the demanding “true threat” standard described

in Black, the majority opinion circumvents this issue altogether by creating an

entirely new and diluted test that renders speech unprotected so long as its

invented layperson might view the speech as “intimidating,” “harassing,” and

“threatening,” despite the fact that such speech does not constitute a “true

threat.” See Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280, 300–03 (5th Cir.

2014) (explaining that Bell’s song did not constitute a “true threat,” “as

evidenced by, inter alia, its public broadcast as a rap song, its conditional

nature, and the reactions of its listeners”). Moreover, the majority opinion’s

approach is especially problematic in light of the critical fact that Bell’s speech

addresses a matter of public concern. In cases involving speech addressing

public figures and matters of public import, the Court has consistently applied

a stricter evidentiary burden before permitting liability to be imposed on a

speaker on the basis of his speech. See, e.g., Falwell, 485 U.S. at 56 (holding

that “public figures and public officials” must prove “actual malice” in addition

to falsity before recovering for intentional infliction of emotional distress on

the basis of speech directed at them); Sullivan, 376 U.S. at 279–80 (holding

that the First Amendment “prohibits a public official from recovering damages

for a defamatory falsehood relating to his official conduct unless he proves that

the statement was made with ‘actual malice’”). Here, in sharp contrast, the

majority opinion announces a constitutional rule whereby students, like Bell,

may be held liable for their off-campus speech that criticizes official misconduct

based largely on the reactions of the very officials in question or the perception

of the majority opinion’s invented “layperson.” Such a flimsy standard simply

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cannot be squared with the foregoing First Amendment precedents. See also

Pacifica Foundation, 438 U.S. at 745–46 (“[T]he fact that society may find

speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the

speaker’s opinion that gives offense, that consequence is a reason for according

it constitutional protection.”). 

III.

In ultimately holding that the Tinker framework applies to off-campus 

speech like Bell’s, the majority opinion ignores that Tinker’s holding and its 

sui generis “substantial-disruption” framework are expressly grounded in “the 

special characteristics of the school environment.” Tinker v. Des Moines Indep. 

Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). In Tinker, the Court confronted the 

question whether school officials may, consistent with the First Amendment, 

restrict students’ expressive activities that occur at school. Id. Specifically, 

the students in Tinker were suspended for wearing to school armbands that 

expressed their opposition to the Vietnam War. Id. at 504. While recognizing 

that students do not “shed their constitutional rights to freedom of speech or 

expression at the schoolhouse gate,” id. at 506, the Court also observed that 

students’ exercise of their First Amendment rights at school must be calibrated 

against the competing need of school officials “to prescribe and control conduct 

in the schools,” id. at 507 (emphasis added). To reconcile the interests at stake 

that may collide when student speech occurs on campus, the Court articulated 

a rule that has become the lodestar for evaluating the scope of students’ oncampus First Amendment rights ever since: while on campus, a student is free 

to “express his opinions, even on controversial subjects, if he does so without 

‘materially and substantially interfer(ing) with the requirements of 

appropriate discipline in the operation of the school’ and without colliding with 

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the rights of others.” Id. at 513 (quoting Burnside v. Byars, 363 F.2d 744, 749 

(5th Cir. 1966)). 

The Supreme Court’s holding in Tinker is expressly based upon the

“special characteristics of the school environment,” id. at 506, and the need to

defer to school officials’ authority “to prescribe and control conduct in the

schools,” id. at 507. Indeed, the very analytic content of the resulting

“substantial-disruption” framework evinces that the Court was solely

concerned with the potentially disruptive consequences of speech by students

that occurs on campus, where school officials and fellow students may be

directly affected. See, e.g., id. at 514 (“[The students] neither interrupted

school activities nor sought to intrude in the school affairs or the lives of others. 

They caused discussion outside of the classrooms, but no interference with

work and no disorder.”). Moreover, the Court’s later school-speech cases

emphasize that the Tinker framework is limited to speech occurring within the

school environment. For example, according to the Court’s decision in Bethel

School District No. 403 v. Fraser, 478 U.S. 675 (1986), Tinker rests on the

premise that “the constitutional rights of students in public schools are not

automatically coextensive with the rights of adults in other settings.” Id. at

682 (emphasis added); see also id. at 688 n.1 (Brennan J., concurring in

judgment) (stating that the Court’s student-speech precedents “obviously do

not [apply] outside of the school environment” and also observing that if the

plaintiff in Fraser “had given the speech [for which he was punished] outside

of the school environment, he could not have been penalized simply because

[school] officials considered his language to be inappropriate”). Subsequently,

in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the Court

described its decision in Tinker as “address[ing] educators’ ability to silence a

student’s personal expression that happens to occur on the school premises.” 

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Id. at 271 (emphasis added); see also id. at 266 (observing that schools may

regulate some on-campus speech “even though the government could not

censor similar speech outside the school”). 

Most recently, in Morse, Justice Alito’s controlling concurrence observed

that Tinker allows school officials to regulate “in-school student speech . . . in

a way that would not be constitutional in other settings.” 551 U.S. at 422

(Alito, J. concurring). Justice Alito further emphasized the historically

significant distinction between on-campus and off-campus expression by

comparing the unique harms of speech that occurs within the schoolyard as

opposed to outside of school: “School attendance can expose students to threats

to their physical safety that they would not otherwise face. Outside of school,

parents can attempt to protect their children in many ways and may take steps

to monitor and exercise control over the persons with whom their children

associate.” Id. at 424 (Alito, J. concurring). In this regard, Justice Alito also

rejected the contention that school officials “stand in the shoes of the students’

parents,” explaining that “[i]t is a dangerous fiction to pretend that parents

simply delegate their authority—including their authority to determine what

their children may say and hear—to public school authorities.” Id. Further,

Justice Alito observed that he joined the majority opinion on the understanding

that the Court’s holding does not justify “any other speech restriction” based

on the “special characteristics” of the school environment beyond those already

recognized in the Court’s prior student-speech cases. Id. at 423. Indeed, in

narrowly limiting the reach of the Court’s holding, Justice Alito characterized

school officials’ regulation of the student-speech at issue in that case15 as

 

15 In Morse, the Court held that the First Amendment did not prevent school officials 

from punishing a student who unfurled at a school-sanctioned event a banner that reasonably 

could be perceived as promoting illegal drug use. 551 U.S. at 396. Notably, the majority 

opinion in this case overstates Morse’s narrow holding by describing that holding as 

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“standing at the far reaches of what the First Amendment permits.” Id. at 425. 

As the foregoing demonstrates, Morse and the Court’s other post-Tinker

precedents make crystal clear what the majority opinion and some of our sister

circuits’ decisions16 fail to follow: Tinker does not authorize school officials to

regulate student speech that occurs off campus and not at a school-sponsored

event, where the potential “collision” of interest upon which Tinker’s holding

pivots simply is not present. 

Further, even assuming arguendo, without deciding, schools possess

some authority to regulate students’ off-campus speech under certain

circumstances, the majority opinion errs in deeming the Tinker framework as

the appropriate standard to delineate the scope of that authority. In reaching

this conclusion, the majority opinion’s logic is flawed from the very start. The

majority opinion oddly begins its analysis by citing our opinion in Morgan v.

Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc), for the proposition that the

threshold task facing the en banc court is “categorizing the student speech at

issue.” Id. at 375. Without ever mentioning that Morgan was a case involving

 

extending to “grave and unique threats to the physical safety of students, in particular speech 

advocating illegal drug use.” See Maj. Op. p. 15 (emphasis added). Contrary to the majority 

opinion’s description, Justice Alito’s concurrence explicitly stated that the Court’s holding 

was limited to the specific speech at issue in that case, viz., speech advocating drug use at a 

school event. See Morse, 551 U.S. at 425 (Alito, J. concurring).

16 For example, in concluding that Tinker applies to off-campus speech, the Eighth 

Circuit committed the same fundamental misreading of Tinker that the district court 

committed in the instant case. D.J.M. ex rel D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 

F.3d 754, 765 (8th Cir. 2011). Specifically, the Eighth Circuit read wholly out of context the 

Court’s statement in Tinker that schools may regulate student speech “in class or out of it,” 

393 U.S. at 513 (emphasis added), in order to hold that the school district in that case was 

permitted to punish a student for his off-campus online speech pursuant to Tinker’s 

substantial-disruption framework. The majority opinion likewise commits the same error in 

emphasizing this very language in reasoning that Tinker applies to off-campus speech. See 

Maj. Op. p. 15. 

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qualified immunity for school officials’ suppression of on-campus speech,17 the

majority opinion then proceeds to determine whether it should evaluate Bell’s

claim under the Tinker framework or under one of the other categorical

exemptions for student speech that the Supreme Court or this court has

recognized. See Maj. Op. pp. 17–18. Then, after determining that the School

Board here did not punish Bell because his speech was lewd (Fraser) or schoolsponsored (Hazelwood) or threatened a Columbine-style mass shooting

(Ponce), the majority opinion summarily concludes via process-of-elimination

that the Tinker framework must be the appropriate framework for evaluating

whether Bell’s speech is protected or not. See Maj. Op. p. 18 (“We therefore

analyze Bell’s speech under Tinker.”). But the majority opinion suspiciously

neglects to note that not a single one of these precedents has ever been applied

by the Supreme Court or our Circuit18 to regulate a student’s off-campus

 

17 The majority opinion in Morgan ultimately held that the school officials’ conduct of 

prohibiting students from passing out religious messages on campus violated the 

constitution. 659 F.3d at 364 (explaining that Judge Elrod’s opinion represented the majority 

opinion on this point). However, the majority of the en banc court found that the right 

announced was not “clearly established.” Id. The reason that “categorization” of the speech 

was important in that case was because of Establishment Clause concerns if the speech could 

be perceived as school-sponsored. Id. at 375. The analysis there has little to do with the 

matters at issue here. 

18 The majority opinion mischaracterizes our precedents by suggesting that we 

previously have held that Tinker applies to purely off-campus speech. See Maj. Op. pp. 15, 

22. In Shanley, we held that school officials violated the First Amendment when they 

punished students for selling underground newspapers “near but outside the school premises 

on the sidewalk of an adjoining street, separated from the school by a parking lot.” 462 F.2d 

at 964. Although we held that the speech in question did not meet the Tinker standard, id. 

at 970, we did not hold that Tinker necessarily can be applied to uphold the punishment of a 

student for purely off-campus speech. 

The same is true of our decision in Sullivan v. Houston Independent School District, 

475 F.2d 1071 (5th Cir. 1973). In Sullivan, the court did not apply the Tinker substantialdisruption test to assess whether school officials violated the First Amendment. The Sullivan

court recognized that there is nothing per se unreasonable about requiring a high school 

student to submit written material to school authorities prior to distribution on campus or 

resulting in a presence on campus, and that it could not be seriously urged that the school’s 

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Internet speech, like Bell’s. Nevertheless, the majority opinion simply

assumes that those precedents apply under these circumstances without first

conducting any meaningful analysis to justify its logic. In other words, by

comparing apples to oranges, the majority opinion puts the proverbial cart

before the horse. Indeed, as explained above, the Tinker standard was

invented, in part, to counteract the consequences of speech that actually occurs

within the school environment and to take account of school officials’ competing

interest to “control conduct in the schools.” See Tinker, 393 U.S. at 507. 

Specifically, in Tinker, the competing state interest was in avoiding the

disruptive consequences of speech that occurs within school. See id. 

Accordingly, the Supreme Court crafted a specific level of scrutiny (the

“substantial-disruption” test) to evaluate restrictions on speech within school

that strikes a balance between the competing interests at stake. Even

assuming arguendo schools had some authority to punish students’ off-campus

speech, it is therefore simply a non sequitur for the majority opinion to

reflexively assume that the same analysis should regulate the scope of schools’

authority to punish students’ expression off campus, where the consequences

 

prior submission rule is unconstitutionally vague or overbroad. 475 F.2d at 1076 (citing 

Shanley, 462 F.2d at 960; Pervis v. LaMarque Indep. Sch. Dist., 466 F.2d 1054 (5th Cir. 

1972)). Instead, the court held that the school principal had disciplined a student for failure 

to comply with the school's rules requiring prior submission to the school principal of all 

publications, not sponsored by the school, which were to be distributed on the campus or off 

campus in a manner calculated to result in their presence on the campus. Id. at 1073, 1076.

The student was disciplined for twice selling newspapers at the entrance of the school 

campus, to persons entering therein, without making prior submission of the papers, and for 

using profanity towards the principal (“the common Anglo–Saxon vulgarism for sexual 

intercourse”) and in the presence of the principal’s assistants (specifically, “I don't want to go 

to this goddamn school anyway”). Id. at 1074. Thus, notwithstanding the Sullivan court’s 

references to Tinker in that decision, that opinion did not hold that the Tinker substantialdisruption test applies to off-campus speech.

In sum, contrary to its suggestion that its decision logically follows from our prior 

precedents, the majority’s opinion today is the first time our circuit has ever held that school 

officials may punish students’ purely off-campus speech pursuant to the Tinker framework. 

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of the speech in question and the constitutional interests at stake are simply

not the same as in Tinker. 

The majority opinion’s flawed logic in this regard stems naturally from

a more fundamental error: the majority opinion fails to take seriously the

significance of the various constitutional interests that are implicated by its

decision to expand Tinker’s reach. As detailed above, the particular facts of

this case principally concern the First Amendment right of students to speak

out on “matters of public concern” when they are away from school by utilizing

the unrivaled power of the Internet to make those messages heard. But

narrowly focusing on this issue alone ignores the constellation of other

constitutional interests that the majority opinion will negatively impact. For

example, even when their off-campus expression does not have a “political” or

“religious” dimension, children still maintain “significant” First Amendment

rights, Brown, 131 S. Ct. at 2735–36, which indisputably include a right to

express disrespect or disdain for their teachers when they are off campus. See

Kime v. United States, 459 U.S. 949, 951 (1982) (“[T]he First Amendment does

not permit a legislature to require a person to show his respect for the flag by

saluting it. The same constitutional principle applies when the legislature,

instead of compelling respect for the flag, forbids disrespect.”). Further, for

purposes of the First Amendment, it is simply irrelevant whether prevailing

social mores deem a child’s disrespect for his teacher to be contemptible. “The

history of the law of free expression is one of vindication in cases involving

speech that many citizens may find shabby, offensive, or even ugly.” See

United States v. Playboy Entertainment Grp., 529 U.S. 803, 826 (2000). 

Moreover, the majority opinion’s extension of Tinker to off-campus

speech additionally burdens the long-established constitutional interest of

parents in the rearing of their children. The Supreme Court has “consistently

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recognized that the parents’ claim to authority in their own household to direct

the rearing of their children is basic in the structure of our society.” Ginsberg

v. New York, 390 U.S. 629, 639 (1968); see also, e.g., Troxel v. Granville, 530

U.S. 57, 65 (2000) (observing that “the interest of parents in the care, custody,

and control of their children . . . is perhaps the oldest of the fundamental liberty

interests recognized by the Court”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 535

(1925) (“The child is not the mere creature of the state; those who nurture him

and direct his destiny have the right, coupled with the high duty, to recognize

and prepare him for additional obligations.”). This fundamental right of

parents indisputably includes the right to inculcate their children with

ideologies and values that the state or mainstream society may consider

repugnant. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (holding that

a war-era law banning teaching of German language violated parents’

substantive due process rights); accord Morse, 551 U.S. at 424 (Alito, J.,

concurring) (observing that “[i]t is a dangerous fiction to pretend that parents

simply delegate their authority—including their authority to determine what

their children may say and hear—to public school authorities”). The majority

opinion’s extension of the Tinker framework will inevitably frustrate this

constitutional right, because school officials will hereinafter be empowered to

supplant parents’ control over their children’s off-campus speech that is critical

of their teachers. 

In addition, authorizing schools to regulate students’ off-campus speech

likewise burdens the constitutional interest of fellow citizens in hearing

students’ off-campus speech. Courts have long recognized that the First

Amendment protects not only the right to speak but also the right to receive

speech from others. See, e.g., First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765,

783 (1978) (stating that the “First Amendment . . . afford[s] public access to

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discussion, debate, and the dissemination of information and ideas”); Martin

v. City of Struthers, 319 U.S. 141, 143 (1943) (explaining that the First

Amendment “embraces the right to distribute literature . . . and necessarily

protects the right to receive it”); Rossignol v. Voorhaar, 316 F.3d 516, 522 (4th

Cir. 2003) (“The First Amendment . . . protects both a speaker’s right to

communicate information and ideas to a broad audience and the intended

recipients’ right to receive that information and those ideas.” (emphasis in

original)). The facts of the instant case poignantly illustrate how the

suppression of students’ off-campus speech will burden the First Amendment

right of other citizens to receive that speech. As detailed above, Bell authored

and publicized his rap song in an effort to raise awareness of a crucial issue to

members of his community, viz., the sexual harassment of female students by

male school officials. Receiving this information would be critically important

to community members, particularly parents of female students at Itawamba,

in order to ensure that such conduct ceased and did not recur.19 Nevertheless,

by endorsing the School Board’s punishment of Bell, the majority’s opinion will

empower school officials to censor other students’ efforts to inform fellow

citizens of information that they have the right—and the urgent need—to

receive. Cf. Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (Brennan,

J. concurring) (“The dissemination of ideas can accomplish nothing if otherwise

willing addressees are not free to receive and consider them. It would be a

barren marketplace of ideas that had only sellers and no buyers.”). 

Exacerbating the violence committed against these constitutional

interests is the unprecedented amount of deference that the majority opinion

 

19 As explained above, allegations that coaches sexually harassed students were 

nothing new at Itawamba Agricultural High School when Bell composed his rap song. In 

2009, Itawamba coach Bobby Hill was arrested and accused of sending sexually explicit text 

messages to a minor student. 

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affords school boards in disciplining off-campus speech pursuant to Tinker.

Again, Maj. Op. p. 27, and again, Maj. Op. p. 28, and again, Maj. Op. p. 29, the

majority opinion emphasizes the extent of “deference” that, in its view, courts

are required to provide school board disciplinary decisions under Tinker. 

Contrary to the majority opinion’s approach, however, we do not “defer” to

schools in interpreting and applying the Constitution. “The authority

possessed by the State to prescribe and enforce standards of conduct in its

schools, although concededly very broad, must be exercised consistently with

constitutional safeguards.” Goss v. Lopez, 419 U.S. 565, 574 (1975). Further,

while it is true that Tinker “is not a difficult burden,” Cash, 585 F.3d at 222

(internal quotation marks omitted), this is the very reason that we must not

apply Tinker to off-campus speech, like Bell’s. Otherwise, armed with the

comfort that courts will simply defer to their decisions, schools will largely have

carte blanche to regulate students’ off-campus speech, thus significantly

burdening not only the First Amendment rights of students but also the

constitutional rights of their parents and their listeners. 

IV.

As explained above, the Supreme Court has not decided whether, or, if 

so, under what circumstances, a public school may regulate students’ online, 

off-campus speech, and it is not necessary or appropriate for the majority 

opinion to anticipate such a decision here. That is because, even if Tinker were 

applicable to the instant case, the evidence does not support the conclusion, as 

would be required by Tinker, that Bell’s Internet-posted song substantially 

disrupted the school’s work and discipline or that the school officials 

reasonably could have forecasted that it would do so. 

In considering the School Board’s motion for summary judgment, we are 

required to view the evidence in the light most favorable to Bell, the non-

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movant. See Tolan v. Cotton, 134 S. Ct. 1861, 1868 (2014) (per curiam). The 

majority opinion, however, wholly disclaims this duty by ignoring material 

facts and refusing to draw inferences in Bell’s favor—particularly those facts 

and inferences clearly evincing that Bell’s song was not and could not be 

regarded as a threat. For example, Bell has been an aspiring musician since 

he was a young boy. He began writing lyrics as a child and started to pursue 

a musical career in earnest while in his teens. Like many musical artists, Bell 

has a stage name, “T-Bizzle,” and he regularly20 records music in a professional 

studio. Indeed, the very rap that gave rise to this case was recorded at a 

recording studio off campus called “Get Real Entertainment” records. As he 

explained to the Disciplinary Committee, Bell considers himself “an artist,” 

and, as explained above, he originally composed and publicized the song in an 

effort to “speak out” on and raise awareness of an important issue in his 

community, i.e., sexual harassment of students. Moreover, consistent with his 

musical aspirations, Bell explained that the version of the song posted to 

YouTube was also intended to attract the attention of record labels. Further, 

the screenshot of Bell’s Facebook page reveals that his friends who commented 

on the song viewed it as the product of Bell’s musical talent as a rap musician 

rather than a threat of violence (e.g., “Hey, don't forget me when you're famous” 

and “Lol . . . been tellin you since we was little . . . you got all the talent in the 

world . . .”). In addition, no one—neither Wildmon, Rainey, nor any other 

teacher or school official—testified that s/he thought Bell, himself, subjectively 

intended to cause anyone to fear that Bell personally would harm any person. 

Nor was there any evidence that Bell was a dangerous person or that he had 

ever engaged in violent or unlawful conduct. Although Bell in his rap song 

 

20 “Once a week,” if possible.

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referred to a firearm, the evidence does not reflect that Bell had ever owned, 

possessed, or had any actual experience with firearms. Except for a single 

tardiness, Bell had an unblemished school conduct record. These crucial facts 

not only impeach the School Board’s contention that Bell’s song could 

reasonably be perceived as a legitimate threat of violence, but also illuminate 

the fallacies in the majority opinion’s comparison between this case and other 

circuit decisions that have condoned punishment for intentionally violent 

student speech.21 

Moreover, the majority opinion likewise either ignores or glosses over 

other relevant evidence tending to show that school officials did not consider 

Bell’s song threatening but instead punished him merely because they did not 

like the content of his speech. For example, during the closing remarks of the 

 

21 For example, the majority opinion compares Bell’s rap song to the potential violence

“signaled” in Ponce v. Socorro Independent School District, 508 F.3d 765 (5th Cir. 2007) and

LaVine v. Blaine School District, 257 F.3d 981, 987 (9th Cir. 2001). But even a cursory

comparison between this case and the facts of those cases reveals the majority opinion’s

flawed logic. In Ponce, a student brought to campus a private diary, which was written in

the first-person narrative, and showed its contents to a classmate. 508 F.3d at 766. The

diary detailed the plan of his “pseudo-Nazi” group to conduct coordinated “Columbine-style”

shootings at his school and at other schools in the district. Id. As the Ponce opinion explains:

The notebook describes several incidents involving the pseudo-Nazi group,

including one in which the author ordered his group “to brutally injure two

homosexuals and seven colored” people and another in which the author

describes punishing another student by setting his house on fire and “brutally

murder[ing]” his dog. The notebook also details the group's plan to commit a

“[C]olumbine shooting” attack on Montwood High School or a coordinated

“shooting at all the [district's] schools at the same time.” At several points in

the journal, the author expresses the feeling that his “anger has the best of

[him]” and that “it will get to the point where [he] will no longer have control.” 

The author predicts that this outburst will occur on the day that his close

friends at the school graduate.

Id. Likewise, in LaVine, a student brought to campus a poem written in the first person

describing how the narrator murdered without remorse 28 people at his school and which

ominously concluded with the narrator’s prediction that he “may strike again.” LaVine, 257

F.3d at 983–84. 

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Disciplinary Committee meeting, one member of the committee provided the 

following admonition to Bell: 

I would say censor your material. . . . Because you are good [at

rapping], but everybody doesn’t really listen to that kind of stuff. 

So, if you want to get [] your message out to everybody, make it

where everybody will listen to it. . . . You know what I’m saying?

Censor that stuff. Don’t put all those bad words in it. . . . The bad

words ain’t making it better. . . Sometimes you can make emotions

with big words, not bad words. You know what I’m saying? . . . Big

words, not bad words. Think about that when you write your next

piece.

The school’s censorial focus on the “bad words” in Bell’s song can also be 

gleaned from the transcript of the preliminary-injunction hearing:

School Board Lawyer: You realized what you had done in 

publishing this song, while it may be, in your perception, an 

artistic endeavor, was filthy; and it was filled with words like fuck, 

correct?

Bell: Yes, sir. 

Further, although the majority opinion emphasizes Wildmon’s testimony that 

Bell’s rap song allegedly scared him, the majority opinion refuses to 

acknowledge that Rainey testified that he viewed the song as “just a rap” and 

that “if [he] let it go, it will probably just die down.” In addition to ignoring 

these material facts, the majority opinion likewise refuses to draw obvious 

inferences from the record which further evince the fact that school officials 

did not consider Bell’s song to be threatening in nature. For example, in sharp 

contrast to other cases in which courts have upheld discipline for a student’s 

purportedly “violent” speech,22 nothing in the record reflects that school 

officials ever contacted law enforcement about Bell’s song. To the contrary, 

Bell’s principal drove him home that day, and he thereafter was allowed to 

 

22 See, e.g., Ponce, 508 F.3d at 767; Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 

1065–66 (9th Cir. 2013); LaVine, 257 F.3d at 985. 

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return to classes. Later, when Bell was suspended pending the outcome of the 

Disciplinary Committee hearing, he nevertheless was allowed to remain 

unattended in the school commons for the remainder of the day. These are 

simply not the actions of school officials who seriously or reasonably believe a 

student poses a threat of violence to school officials. 

Had the majority opinion properly reviewed all the relevant facts and

drawn the clear inferences therefrom, it would have been compelled to conclude

that the evidence here does not support a finding, as would be required by

Tinker, that a “substantial disruption” occurred or that school officials

reasonably could have “forecast” a substantial disruption as a result of Bell’s

rap. 393 U.S. at 514. As an initial matter, the evidence plainly shows that

there was no commotion, boisterous conduct, interruption of classes, or any

lack of order, discipline and decorum at the school, as a result of Bell’s posting

of his song on the Internet. Cf. Shanley, 462 F.2d at 970 (“Disruption in fact is

an important element for evaluating the reasonableness of a regulation

screening or punishing student expression.”). In fact, at the preliminary

injunction hearing, Wildmon explained that his students “seem[ed] to act

normal” after Bell’s rap was released, and Rainey testified that most of the talk

amongst students had not been about Bell’s song but rather about his

suspension and transfer to alternative school. Aside from the single instance

when Wildmon requested a student play the song for him, there was no

evidence that any student played the song at school. Indeed, school computers

blocked Facebook, and cellphones were prohibited, which decreased the

likelihood that students could access the song on campus. Further, Bell

testified that he never encouraged students or staff to listen to the song at

school, and there is no evidence to the contrary. Tellingly, when asked if she

could point to any disruption at the school as a result of Bell’s song, the

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superintendent referred only to the fact that the coaches said that they had

altered their “teaching styles” in order to avoid any appearance of initiating or

engaging in sexual relationships or harassment with female students.23 Yet,

neither the superintendent nor the coaches described how this alleged change

in “teaching styles” had substantially harmed their ability to teach their

assigned courses. And, in any event, it is self-evident that a teacher’s effort to

avoid the appearance that he is engaging in sexual relationships with students

should be deemed a dictate of the classroom and not a disruption of it.24 In

sum, even assuming arguendo that Tinker could be applied to Bell’s speech in

this case, the School Board failed to satisfy its burden under the “substantialdisruption” framework. 

In reaching the opposite conclusion, however, the majority opinion

reasons that Bell’s “threatening, intimidating, and harassing language . . .

could be forecast by [school officials] to cause a substantial disruption.” See

Maj. Op. p. 31. But, the “evidence” that the majority opinion cites for this

conclusion is, at the very best, sorely lacking. For example, the majority

opinion emphasizes that Wildmon and some unnamed “third parties”25

purportedly perceived Bell’s rap song as threatening. See Maj. Op. p. 31. Yet,

 

23 For example, Wildmon testified: “I tried to make sure, you know, if I'm teaching, 

and if I'm scanning the classroom, that I don't look in one area too long. I don't want to be 

accused of, you know, staring at a girl or anything of that matter.” Rainey testified that he 

no longer felt he could be as “hands on” with his female members of the track team, and thus 

“sometimes I tell the boys to go and work with the girls.”

24 Even assuming arguendo these changes in the coaches’ teaching and coaching styles 

could be classified as “disruptions,” the School Board has not presented any evidence to 

support a finding that such disruptions were “substantial,” as required by Tinker. 

25 During a seconds-long aside at the Disciplinary Committee hearing, Bell simply 

alluded to such statements by third parties. Neither Bell nor anyone else provided any 

details whatsoever about these third parties, nor did he specify whether he heard these 

statements himself or via a third party. 

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the majority opinion fails to apprehend that an individual’s perception of

speech is not necessarily tantamount to a rational assessment of that speech

nor a valid basis for concluding that such speech is “unprotected” under the

First Amendment. Indeed, regardless of how some individuals might view

Bell’s speech, no reasonable listener could perceive Bell’s lyrics as threats in

light of the particular context; nor did the particular listeners here. See United

States v. Jeffries, 692 F.3d 473, 480 (6th Cir. 2012) (“A reasonable listener

understands that a gangster growling ‘I’d like to sew your mouth shut’ to a

recalcitrant debtor carries a different connotation from the impression left

when a candidate uses those same words during a political debate. And a

reasonable listener knows that the words ‘I’ll tear your head off’ mean

something different when uttered by a professional football player from when

uttered by a serial killer.”). Critically, the speech at issue in this case occurred

in a rap song, a musical genre in which hyperbolic and violent language is

commonly used in order to convey emotion and meaning—not to make real

threats of violence. See, e.g., Andrea L. Dennis, Poetic (In)Justice? Rap Music

Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. and Arts 1, 22

(2007). Further, as detailed above, Bell is a long-aspiring rapper; he composed

the song in a professional studio; and he publically broadcast the song to raise

public awareness and to attract the attention of record labels. These crucial

contextual facts reveal that Bell’s song was just that: a song, authored by a

young and aspiring musical artist—not the calling card of a would-be killer. 

The majority opinion therefore errs by relying upon unsubstantiated and

unreasonable beliefs that Bell’s song was “threatening” in order to support its

conclusion that the School Board satisfied its burden under Tinker. Accord

Cash, 585 F.3d at 221–22 (observing that school “[o]fficials must base their

decisions on fact, not intuition”) (internal quotation marks omitted). 

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For additional support that Tinker is satisfied, the majority opinion also

emphasizes the wording of the School Board’s Discipline-Administrative

Policy. See Maj. Op. p. 31. Specifically, the majority opinion derives meaning

from the parallels between Tinker’s “substantial disruption” framework and

the School Board’s decision to place the heading “SEVERE DISRUPTIONS”

above twenty-one different disciplinary “offenses,” one of which is the school’s

prohibition on “[h]arassment, intimidation, or threatening other students

and/or teachers.” Under the policy, other “severe disruptions” include, inter

alia, “stealing,” “cutting classes,” and “profanity, or vulgarity (to include acts,

gestures, or symbols directed at another person.)” According to the majority

opinion, this “policy demonstrates an awareness of Tinker’s substantialdisruption standard,26 and the policy’s violation can be used as evidence

supporting the reasonable forecast of a future substantial disruption.” The

majority opinion’s reasoning in this regard is flawed. As an initial matter, this

policy nowhere states that it applies to student conduct or speech that, like

Bell’s, occurs away from school or school-related activities. In this respect, the

policy is facially distinguishable from those on-campus policies in Morse and

Fraser to which the majority opinion analogizes. Moreover, however, the

majority opinion’s logic is entirely circular. The very task before our court is

determining whether the School Board’s decision to discipline Bell under a

school policy comported with constitutional dictates. According to the majority

opinion, however, the School’s Board’s decision to discipline Bell under a school

policy is evidence that the punishment comported with constitutional dictates. 

Contrary to the majority opinion’s assertions otherwise, this is prototypical

ipse dixit. 

 

26 The majority opinion cites no evidence to substantiate that the somewhat parallel 

language is anything more than a mere coincidence. 

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V.

“[A] ‘function’ of free speech under our system of government is to invite 

dispute. It may indeed best serve its high purpose when it induces a condition 

of unrest, creates dissatisfaction with conditions as they are, or even stirs 

people to anger.” Cox v. Louisiana, 379 U.S. 536, 551–52 (1965). By raising 

awareness of high school athletic coaches’ sexual misconduct toward minor 

female students, Taylor Bell’s rap song had this exact effect, and amongst those 

most “stir[red] to anger” were Itawamba school officials. The First Amendment 

prohibited Itawamba from expressing that anger by punishing Bell for the 

content of his speech. See Barnette, 319 U.S. at 637 (“The Fourteenth 

Amendment . . . protects the citizen against the State itself and all of its 

creatures—Boards of Education not excepted.”). “If there is a bedrock principle 

underlying the First Amendment, it is that the government may not prohibit 

the expression of an idea simply because society finds the idea itself offensive 

or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). Indeed, “the 

point of all speech protection . . . is to shield just those choices of content that 

in someone’s eyes are misguided, or even hurtful.” Hurley, 515 U.S. at 574. The 

majority opinion, however, forsakes its duty to uphold this most elementary 

and important of our Constitution’s guarantees.

In its conclusion, the majority opinion observes that the “mission” of 

schools is “to educate.” Maj. Op. p. 32. Yet, the majority opinion fails to 

apprehend the breadth of what an “education” encompasses. As the Supreme 

Court has explained, “[t]he vigilant protection of constitutional freedoms is 

nowhere more vital than in the community of American schools.” Shelton v. 

Tucker, 364 U.S. 479, 487 (1960). Teachers are “charge[d] . . . with the task of 

[i]mbuing their students with an understanding of our system of democracy.” 

New Jersey v. T.L.O., 469 U.S. 325, 354 (1985) (Brennan, J., concurring in part 

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and dissenting in part). “That they are educating the young for citizenship is 

reason for scrupulous protection of Constitutional freedoms of the individual, 

if we are not to strangle the free mind at its source and teach youth to discount 

important principles of our government as mere platitudes.” Barnette, 319 

U.S. at 637. “[E]ducation prepares individuals to be self-reliant and selfsufficient participants in society.” Wisconsin v. Yoder, 406 U.S. 205, 221 

(1972). Accordingly, “students must always remain free to inquire, to study 

and to evaluate, to gain new maturity and understanding; otherwise our 

civilization will stagnate and die.” Sweezy v. New Hampshire, 354 U.S. 234, 

250 (1957). 

Viewed in the light of these longstanding principles, Bell’s song was not 

a disruption of school activities but rather was an effort to participate as a 

citizen in our unique constitutional democracy by raising awareness of a 

serious matter of public concern. Yet, rather than commending Bell’s efforts, 

the Itawamba County School Board punished him for the content of his speech, 

in effect teaching Bell that the First Amendment does not protect students who 

challenge those in power. The majority opinion teaches that same mistaken 

lesson to all the children in our Circuit. Indeed, in concluding that the First 

Amendment officially condones Bell’s censoring and punishment by the School 

Board, instead of safeguarding his freedom of speech, the majority opinion 

undermines the rights of all students and adults to both speak and receive 

speech on matters of public concern through the Internet.

For these reasons, I respectfully and earnestly dissent. 

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EDWARD C. PRADO, Circuit Judge, dissenting:

I agree with Judge Dennis’s dissent that Bell’s rap song constitutes 

expressive speech protected by the First Amendment and that the school’s 

discipline for that speech violated the First Amendment under existing 

Supreme Court precedent. I therefore respectfully dissent and join Judge 

Dennis’s dissent in part.1

I write separately because off-campus online student speech is a poor fit 

for the current strictures of First Amendment doctrine, which developed from 

restrictions on other media, and I hope that the Supreme Court will soon give 

courts the necessary guidance to resolve these difficult cases. See David L. 

Hudson, Jr., The First Amendment: Freedom of Speech § 7:6 (2012) (“[T]he next 

frontier in student speech that the U.S. Supreme Court will explore is online 

speech.”). This issue has divided the circuits and state supreme courts. Some 

have concluded that the Tinker standard categorically does not apply to online 

off-campus speech. See J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 

915, 937 (3d Cir. 2011) (en banc) (Smith, J., concurring) (noting that “[l]ower 

courts . . . are divided on whether Tinker’s substantial-disruption test governs 

students’ off-campus expression”); see also Thomas v. Bd. of Ed., Granville 

 

1 I do not join Part I of Judge Dennis’s dissent. Unlike the dissent, I would conclude 

that speech is presumptively protected by the First Amendment unless it fits within a specific 

category of unprotected speech—regardless of the subject matter of the speech. Thus, I would 

not extend the doctrinal distinction between private speech and speech on a matter of public 

concern from the torts and public-employment contexts into the student-speech context.

I also do not join Part II(B) of the dissent. I agree with the dissent’s larger point that 

the majority opinion’s standard is vague and will prove difficult to apply; however, I am not 

as sure as the dissent that the Supreme Court’s 1997 decision in Reno v. American Civil 

Liberties Union, 521 U.S. 844 (1997), remains indicative of how the Court would resolve this 

case today. The Internet has changed dramatically since 1997, so much so that I wonder 

whether the Court’s views on online student speech have evolved to take into account the 

potential for harm that simply did not exist to the same degree when Reno was decided 

eighteen years ago. See, e.g., J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 863 (Pa. 2002) 

(observing that “the advent of the Internet has complicated analysis of restrictions on 

speech”).

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Cent. Sch. Dist., 607 F.2d 1043, 1053 n.18 (2d Cir. 1979) (“[W]e believe that 

[the] power [to regulate expression] is denied to public school officials when 

they seek to punish off-campus expression simply because they reasonably 

foresee that in-school distribution may result.”). Some courts have assumed 

without deciding that Tinker applies. See, e.g., J.S., 650 F.3d at 928–31 

(majority op.). And some courts have held that Tinker applies to online offcampus speech if “it was foreseeable . . . [that the] conduct would reach the 

school via computers, smartphones, and other electronic devices,” Kowalski v. 

Berkeley Cnty. Schs., 652 F.3d 565, 574 (4th Cir. 2011), or if there is a 

“sufficient nexus between the website and the school campus to consider the 

speech as occurring on campus,” J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 

847, 865 (Pa. 2002). I am unaware of a circuit or state supreme court going as 

far as the majority in this case and holding that threatening, harassing, or 

intimidating online speech that occurred purely off campus may be prohibited 

or punished. The majority’s holding appears to depart from the other, already 

divided circuits in yet another direction.

Bell’s speech does not fit within the currently established, narrow 

categories of unprotected speech, and I would wait for the Supreme Court to 

act before exempting a new category of speech from First Amendment 

protection. As we previously stated in Porter v. Ascension Parish School Board, 

the Tinker standard only applies to substantially disruptive “student speech 

on the school premises.” 393 F.3d 608, 615 (5th Cir. 2004) (emphasis added) 

(internal quotation marks omitted); see also id. at 615 n. 22 (criticizing other 

courts for “[r]efusing to differentiate between student speech taking place oncampus and speech taking place off-campus”). Schools officials may also punish 

speech that advocates illegal drug use and that takes place at off-campus 

school-sanctioned activities during school hours. Morse v. Frederick, 551 U.S. 

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393, 400–01 (2007) (citing Porter, 393 F.3d at 615 n.22); see also id. at 425 

(Alito, J., concurring) (reasoning that the location of the speech matters and 

that, “due to the special features of the school environment, school officials 

must have greater authority to intervene before speech leads to violence”). But 

this exception does not apply to purely off-campus speech. See id. at 405 

(majority op.) (“Had Fraser delivered the same speech in a public forum outside 

the school context, it would have been protected.”).

Moreover, Bell’s speech does not fall within the First Amendment 

exception we have previously recognized for student speech that threatens 

“violence bearing the stamp of a well-known pattern of recent historic activity: 

mass, systematic school-shootings in the style that has become painfully 

familiar in the United States.” Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 

770–71 (5th Cir. 2007) (emphasis added). Indeed, in Ponce, we emphasized the 

narrow scope of this exception, concluding that this exception does not include 

“threats of violence to individual teachers[, which should be] analyzed under 

Tinker” or not at all, id. at 771 n.2 (emphasis added), meaning that threatening 

language about an individual teacher is not within the Morse exception and 

may be punished only if it is either “on school premises” within the meaning of 

Tinker, Porter, 393 F.3d at 615, or if it constitutes a true threat. We reasoned: 

“Such threats [to teachers], because they are relatively discrete in scope and 

directed at adults, do not amount to the heightened level of harm that was the 

focus of both the majority opinion and Justice Alito’s concurring opinion in 

Morse.” Ponce, 508 F.3d at 771 n.2 (citing Boim v. Fulton Cnty. Sch. Dist., 494 

F.3d 978 (11th Cir. 2007); Wisniewski v. Bd. of Educ. of the Weedsport Cent. 

Sch. Dist., 494 F.3d 34 (2d Cir. 2007)). “The harm of a mass school shooting is, 

by contrast, so devastating and so particular to schools that Morse analysis is 

appropriate.” Id. (emphasis added).

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In this case, Bell’s rap song was performed and broadcasted entirely offcampus, and the song described violence directed at individual teachers—not 

a Columbine-type mass school shooting. Therefore, Bell’s rap does not fall 

within the Tinker or the Morse categories of unprotected speech under our 

Circuit’s decisions in Porter and Ponce. Further, in the context of expressive 

rap music protesting the sexual misconduct of faculty members, no reasonable 

juror could conclude that Bell’s rap lyrics constituted a “true threat.” See 

Virginia v. Black, 538 U.S. 343, 359 (2003) (“‘True threats’ encompass [only] 

those statements where the speaker means to communicate a serious 

expression of an intent to commit an act of unlawful violence to a particular 

individual or group of individuals.”). Therefore, I would reverse the district 

court and render judgment for Bell.

I therefore agree with Judge Dennis’s dissent that our Circuit should 

hesitate before carving out a new category of unprotected speech.

Even so, I share the majority opinion’s concern about the potentially 

harmful impact of off-campus online speech on the on-campus lives of students. 

The ever-increasing encroachment of off-campus online and social-media 

speech into the campus, classroom, and lives of school students cannot be 

overstated. See Kowalski, 652 F.3d at 567–69, 571 (confronting a situation in 

which one high-school student created a webpage dedicated to spreading 

rumors about the sexually transmitted disease of another student and her 

supposed sexual promiscuity, thereby “singl[ing] out [that student] for 

harassment, bullying and intimidation”). Ultimately, the difficult issues of offcampus online speech will need to be addressed by the Supreme Court.

For the foregoing reasons, I respectfully dissent.

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HAYNES, Circuit Judge, dissenting in part:

I respectfully dissent from the portion of the majority opinion affirming 

the district court’s grant of summary judgment in favor of the School Board on 

Bell’s claim.1 I conclude that the majority opinion greatly and unnecessarily 

expands Tinker to the detriment of Bell’s First Amendment rights. I would 

reverse the district court’s grant of summary judgment to the School Board and 

remand for further proceedings on those matters for substantially the same 

reasons set forth in Section III of the original panel majority opinion. See Bell, 

774 F.3d at 290–303. 

 

1 Credibility and inferences matter here, so I would not reverse the denial of Bell’s 

summary judgment motion.

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JAMES E. GRAVES, JR., Circuit Judge, dissenting:

I join Judge Dennis’s dissenting opinion. Like Judge Dennis, my view is 

that the Tinker framework was not intended to apply to off-campus speech. I 

recognize, however, that current technology serves to significantly blur the 

lines between on-campus and off-campus speech. In the light of this 

undeniable reality, and in the alternative, I would apply a modified Tinker 

standard to off-campus speech. My Tinker-Bell standard would begin with the 

Tinker substantial disruption test. See Tinker v. Des Moines Indep. Cmty. Sch. 

Dist., 393 U.S. 503 (1969); see also Shanley v. Ne. Indep. Sch. Dist., 462 F.2d 

960 (5th Cir. 1972). It would further include a nexus prong that is derived 

most significantly from the Fourth Circuit’s nexus test in Kowalski v. Berkeley 

County Schools, 652 F.3d 565 (4th Cir. 2011). The nexus prong would 

incorporate the important factors, considered by other appellate courts, of 

foreseeability and the speech’s predominant message.

This standard would protect the First Amendment rights of students to 

engage in free expression off campus, while also recognizing that school 

officials should have some ability, under very limited circumstances, to 

discipline students for off-campus speech. Mindful of these core principles and 

concerns, I would apply the following test.

In order for a school to discipline a student for off-campus 

speech, the school must:

(1) provide evidence of facts which might reasonably have 

led school authorities to forecast a substantial disruption 

OR evidence of an actual, substantial disruption;1 AND

(2) demonstrate a sufficient nexus between the speech and 

the school’s pedagogical interests that would justify the 

 

1 Tinker, 393 U.S. at 509, 513–14; see also Shanley, 462 F.2d at 974 (“We emphasize . 

. . that there must be demonstrable factors that would give rise to any reasonable forecast by 

the school administration of ‘substantial and material’ disruption of school activities before 

expression may be constitutionally restrained.”). 

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school’s discipline of the student.2 In this regard, I would 

consider three non-exclusive factors:

a. whether the speech could reasonably be expected 

to reach the school environment.3

b. whether the school’s interest as trustee of student 

well-being4 outweighs the interest of respecting 

the traditional parental role5 in disciplining a 

student for off-campus speech . . .

i. giving particular weight to evidence, 

experiential or otherwise (like the bullying 

research in the Fourth Circuit’s Kowalski

decision),6 which indicates that particular 

off-campus speech has a unique and proven 

adverse impact on students and the campus 

environment.

c. whether the predominant message of the student’s 

speech is entitled to heightened protection.7

 

2 See Kowalski, 652 F.3d at 573 (“There is surely a limit to the scope of a high school’s 

interest in the order, safety, and well-being of its students when the speech at issue originates 

outside the schoolhouse gate. But we need not fully define that limit here, as we are satisfied 

that the nexus of [the student’s] speech to [the high school’s] pedagogical interests was 

sufficiently strong to justify the action taken by school officials in carrying out their role as 

the trustees of the student body’s well-being.”). 

3 See Wisniewski v. Bd. of Educ., 494 F.3d 34, 38–39 (2d Cir. 2007), cert. denied, 128 

S. Ct. 1741 (2008) (expanding the reach of Tinker to include off-campus speech that is 

reasonably foreseeable to “come to the attention of school authorities”); Doninger v. Niehoff, 

527 F.3d 41, 50 (2d Cir. 2008) (applying Tinker to off-campus speech where the speech is 

reasonably foreseeable to reach the school property); D.J.M. v. Hannibal Pub. Sch. Dist., 647 

F.3d 754, 766 (8th Cir. 2011) (same, where speech was reasonably foreseeable to be brought 

to the attention of school authorities).

4 See Kowalski, 652 F.3d at 573.

5 Our court has held in high regard the traditional role of parents to discipline their 

children off campus. See Shanley, 462 F.2d at 964 (“It should have come as a shock to the 

parents of five high school seniors . . . that their elected school board had assumed suzerainty 

over their children before and after school, off school grounds, and with regard to their 

children’s rights of expressing their thoughts.”); id. at 966 (explaining that the parents filed 

the lawsuit in “objecti[on] to the school board’s bootstrap transmogrification into SuperParent”). 

6 Kowalski, 652 F.3d at 572.

7 See Section I of Judge Dennis’s dissenting opinion; see also Bell v. Itawamba Cnty. 

Sch. Bd., 774 F.3d 280, 299 n.46 (5th Cir. 2014), rev’d en banc. 

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In my view, if this test were applied to the facts of this case, the school’s 

discipline of Bell would clearly fail. For this additional, alternative reason, I 

dissent.

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