### 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 profil e page and then on YouTube )

, United States Court of Appeals

Fifth Circuit 

### FILED

August 20, 2015

Lyle W. Cayce

Clerk Case: 12-60264 Document: 00513162565 Page: 1 Date Filed: 08/20/2015No. 12

- 60264

2 intendin g 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.

B ell claims being disciplined violated his First Amendment right to free

speech. On cross

- motions for summary judgment

, the district court ruled, inter

alia : the s chool b oard, as well as the school

- district superintendent, Teresa

McNee c e, 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 threaten ing,

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

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

reco rding’s cover image. ( His high

- s chool mascot is a Native American.) The Case: 12-60264 Document: 00513162565 Page: 2 Date Filed: 08/20/2015No. 12

- 60264

3 recording

, in part

, alleges misconduct against female students by Coach es 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

coac hes / d irty ass niggas like some fucking coacha

roaches / s tarted fucking with the white and k now they
fucking with the blacks / t hat pussy ass nigga W[.] got

me tu rned up the fucking max /

Fucking with the students and he just had a baby /

e ver since I m et that cracker I knew that he was crazy

/ a lways talking shit cause he know I’m from daw

- city

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

no tid ies /

This nigg h a telling students that t hey sexy, betta
watch your back / I’m a serve this nigga

, like I serve
the junkies with some crack / Q uit the damn basketball

team / t he coach a pervert / c an’t stand the truth so to
you these lyrics going to hurt

What the hell was they th inking when they hired Mr.

R [

. ] / d readlock Bobby Hill the second / He th e same

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

/ Now you just anot her pervert coach, fat as hell /
Talking about you gangsta / d rive your mama’s PT

Cruiser / Run up on T

- Bizzle / I’ m go ing to hit you with

my rueger

Think you got some game / c uz you fucking with some
juveniles / y ou know this shit the truth so don’ t you try

to hide it now / Rubbing on the black girls ears in the Case: 12-60264 Document: 00513162565 Page: 3 Date Filed: 08/20/2015No. 12

- 60264

4 gym / w hite 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 s chool got a
ring mutherfucker

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

w hite dude, guess you got a thing for them yellow

bones / l ooking down girls shirts / d rool running down
your mouth / y o u fucking with the wrong one / g oing
to get a pistol down your mouth / B ow w

OMG / T ook some girls in the locker room in PE / Cut
off the lights / you motherfucking freak / Fucking with
the youngins / b ecause 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

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

bitch don’t even know me

Middle fi ngers up if you hate that nigga / Middle
fingers up if you can’t stand that nigga / m iddle fingers
up if you want to cap that nigga / m iddle fin gers 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 Case: 12-60264 Document: 00513162565 Page: 4 Date Filed: 08/20/2015No. 12

- 60264

5 4. “middle fingers up if you want to cap that nigga /
middle fingers up / he g et 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, s hows 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, t he coach listened to it at school on the student’s smart phone

( 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. D uring 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 Case: 12-60264 Document: 00513162565 Page: 5 Date Filed: 08/20/2015No. 12

- 60264

6 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 contin ue 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

a dministrative disciplinary p olicy, which lists “[h]arassment, intimidation, or

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

The disciplinary

- co mmittee hearing, originally scheduled for

Wednesday, 19 January, was delayed at Bell’s mother’s request; i t was held on

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

recorded; that recording is in the summary

- judgment recor d. The hearing

was facilitated by the school

- board attorney, Floyd; three disciplinary

committee 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 recordin g was played. Among t he

disciplinary

- committee members’ questions, o ne 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. I nstead

,

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

somebody’s gonna listen to it”

, acknowledg ing several times during the hearing

that he posted the recording to Facebo ok 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. Case: 12-60264 Document: 00513162565 Page: 6 Date Filed: 08/20/2015No. 12

- 60264

7 One of the committee members asked Bell why he had p osted 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 rec ording ( his Facebook version only

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

recording).

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

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

- boar d

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”.

B ell contested the school

- board attorney’s interpretation , re sponding:

“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 summary

judgment 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, h e agreed that individuals

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

“‘put a pistol down your mouth’[,] that is a dire ct threat”. Case: 12-60264 Document: 00513162565 Page: 7 Date Filed: 08/20/2015No. 12

- 60264

8 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 te achers 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 rul es impos ed 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 inform ed the school

- board attorney, by 31 January telephone

call, that : Bell wi shed to appeal to the school board the disciplinary

committee’s recommendation ; and, although Bell and his mother were

expected to appear at the boar d 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 Case: 12-60264 Document: 00513162565 Page: 8 Date Filed: 08/20/2015No. 12

- 60264

9 intimidated school e mployees”. (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 D iscipline C ommittee regarding student with M SIS #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, whi ch 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, t he schoo l

- board attorney

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

school employees in violation of Scho ol Board policy and Mississippi State

Law”. ( Again, as stated in the written school

- district policy, “[h]arassment,

intimidati on, or threatening other students and/or teachers” const itutes a

severe disruption.)

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

filed t his action

, claim ing

, inter alia

, the school boar d, superintendent, and

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

speech. O n 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 be ing expunged from his

school records.

A t the 10 March hearing for the requested injunction, Bell presented four

affidavits from students at his school concerning alleg ed misconduct by the

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

. ) In Case: 12-60264 Document: 00513162565 Page: 9 Date Filed: 08/20/2015No. 12

- 60264

10 addition, B ell, his mother, school

- board attorney Floyd

, and Franklin (offered

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

McNee c e 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 school

board hearing s . She testified the school principal never stated Bell was

dangerous or threatenin g, 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 conte ntion 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 disci plinary

committee and the school board discussed the possibility of disruption.

O ver 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 you ng 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 re cording and precedes the words “ [p]ut a p i stol in your mouth

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

man, absolutely”

.

T he superintendent testified : she had attended the school

- board

meeting ; there was a for eseeable danger of substantial disruption at the school Case: 12-60264 Document: 00513162565 Page: 10 Date Filed: 08/20/2015No. 12

- 60264

11 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 disciplinary

committee’s recommendation for suspension and tem porary placement in the

alternative s chool.

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 arou nd 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 female s and then having the male s do

so

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

literally

, after hea ring 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 ga mes 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

.

I t does not appear that any discovery took place after the preliminary

injunction 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 m otions.

Therefore, approximately three months later, t he school board filed its

summary

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

1 5 March 2012 , the district court denied the Bells’ motion and granted the Case: 12-60264 Document: 00513162565 Page: 11 Date Filed: 08/20/2015No. 12

- 60264

12 school board’s

. In doin g 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 righ t 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 201 4 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 v acated , 782

F.3d 712 (5th Cir. 2015). E n

- banc review was granted in February 2015

.

II.

Because the summary judgment a gainst Bell’s mother’s Fourteenth

Amendment claim and f or the school officials’ qualified

- immunity claim was

not contested on appeal

, t he 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 Just ice, Office of the Att’y

Gen. , 730 F.3d 450, 452 (5th Cir. 2013). Summary judgment is proper when Case: 12-60264 Document: 00513162565 Page: 12 Date Filed: 08/20/2015No. 12

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13 “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) (citation s

and quot ation marks omitted).

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

novo review, views the evidence in the light mo st 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 mis conduct; (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 versi on ); (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 rec ommended disciplinary action; (11) the school

- board

attorney’s letter to Bell’s mother

, in forming her of the disciplinar y committee’s

findings and recommended discipline ; (12) the school

- board

- hearing minutes; Case: 12-60264 Document: 00513162565 Page: 13 Date Filed: 08/20/2015No. 12

- 60264

14 (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 s tudents 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

othe r 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 Sc h. 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 , becau se “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 Amen dment 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

. T he re, the Court considered the suspension of students for wearing

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

– Case: 12-60264 Document: 00513162565 Page: 14 Date Filed: 08/20/2015No. 12

- 60264

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

Court , focusing primarily on the effect of that speech on the scho ol community

,

held : A student “may express his opinion s

. . . 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 invasi on of the rights of others is, of course, not immunized . . . ”.

Id. (emphasis added). Approximately three years after Tinker

, our court held

t his 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 off

campus distribution of “underground” newspaper violated Tinker )

.

Since Tinker , t he 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, 37 4 (5th Cir. 2011) (en banc) (describing the

Court’s holdings as “expand[ing] the ki n ds 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 author ity Case: 12-60264 Document: 00513162565 Page: 15 Date Filed: 08/20/2015No. 12

- 60264

16 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 uphe ld a school’s right to “exercis [e] editorial control over the style and

content of stude nt 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 reasonabl y 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 school

sponsored event

. 551 U.S. at 397

– 98. T he 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 r easonably could ha ve bee n 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 t he suspension

as constitutional, extending Morse ’s exception to speech “bearing the stamp of Case: 12-60264 Document: 00513162565 Page: 16 Date Filed: 08/20/2015No. 12

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17 . . . 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 7 71.

In challenging the summary judgment , Bell claims the school board

violated his First Amendment free

- speech right s 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 off

campus speech, such as his rap recording ; and, even if it does, Tinker ’s

“substantial disru ption” test is not satisfied. For the reasons that follow , w e

hold: Tinker applies to the off

- campus speech at iss u e ; 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

hav e 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 a t 375

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

whethe r 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 discip lined Bell based on the lewdness of his speech or its potential Case: 12-60264 Document: 00513162565 Page: 17 Date Filed: 08/20/2015No. 12

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18 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, sys tematic school

- shooting. A nd, a s 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”.)

. A lthough 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 plac es of special danger.” Morse

,

551 U.S. at 424 (Alito, J., concurring). Over 45 years ago, when Tinker was Case: 12-60264 Document: 00513162565 Page: 18 Date Filed: 08/20/2015No. 12

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19 decided , the Internet, cellphones, smartphones, a nd digital social media did

not exist. T he 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 commu nity, can likewise be accessed anywhere, by anyone , at any time

.
Although, under other circumstances, such communications might be

protected sp eech under the First Amendment, off

- campus threats, harassment,

and intimidation directed at teachers create a tension between a student’s free

speech 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 , ha v e 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 Case: 12-60264 Document: 00513162565 Page: 19 Date Filed: 08/20/2015No. 12

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20 reality that educators must confront on an all too frequent basis”.). S chool

administrators must be vigilant and take seriously any statements by students

res embling threats of violence

, Ponce , 508 F.3d at 771

, as well as harassment

and intimidation posted online and made away from campus. This now

tragically common violence increases the importance of clarifying the school’s

authority to react to potential th reats 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” da nger 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.”).

I n the light of these competing interests and increasing concerns

regarding school violence, it is necessary to establish the extent to which off

campus student speech may be restricted without offending the First

Amen dment. 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 a t 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 Case: 12-60264 Document: 00513162565 Page: 20 Date Filed: 08/20/2015No. 12

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

to prevent them from ha ppening in the first place.”).

a.

Despite Bell’s r ecognizing 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 o ur 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., concu rring) (discussing that Tinker ’s applicability to off

campus 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 decidi ng

, that the Tinker substantial

disruption test applies to online speech h arassing 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 Cour t 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 a t 970 (“When the Burnside/Tinker standards are

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

1071, 107 2 (5th Cir. 1973) (“This case arises from the unauthorized Case: 12-60264 Document: 00513162565 Page: 21 Date Filed: 08/20/2015No. 12

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22 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.3 d 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 ou t

- 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 concl uding 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 distur bances

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, Tinke r 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

. Case: 12-60264 Document: 00513162565 Page: 22 Date Filed: 08/20/2015No. 12

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23 b.

T herefore, t he next question is under what circumstances may off

campus speech be restricted . O ur court’s precedent i s less developed in this

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

- judgment

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

intentionally directing at the school comm unity 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, i n 1973 in

Sullivan

, our court considered Tinker , but did not address any parameters f or

its applicat ion to off

- campus speech . 47 5 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 sketc hpad 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 b rought 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 th e

school community as “accidental and unintentional”

. Id. at 618, 620 (“Because Case: 12-60264 Document: 00513162565 Page: 23 Date Filed: 08/20/2015No. 12

- 60264

24 [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 intent ion 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 , t hos e 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

standar d 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 ‘eve rywhere at once’ nature of the [I] nternet”, and

advocating allowing schools to discip line off

- campus speech “[r]egardless of its Case: 12-60264 Document: 00513162565 Page: 24 Date Filed: 08/20/2015No. 12

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25 place of orig in” 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 sc hool’s pedagogical

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

as t he trustees of the student body’s well

- being” ); D. J. M. , 647 F.3d at 766

(applying Tinker because “i t 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 or iginating 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) ).

T h e pervasive and omni present 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 problem s 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 originate d

, and was disseminated

, off

- campus without

the use of school resources

.

This holding is consistent with our circuit’s preceden t in Shanley and

Sullivan

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

holding Tinker applies to the off

- campus sp eech in this instance, because such

determinations are heavily influenced by the facts in each matter, we decline : Case: 12-60264 Document: 00513162565 Page: 25 Date Filed: 08/20/2015No. 12

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

advocated by other circuits.

ii.

T urning to the matter before us, t here is no genuine dispute of material

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

admitted d uring the discip linary

- 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 “go nna 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 Bel l’s statements in the rap recording

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

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

The Oxford English Dictionary defines : “ threat en” as “ to decl are (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 “intim idate” 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 o r 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 purpo se”) ; Elonis v. United States , 135 S.

Ct. 2001, 2011

– 12 (2015) (explaining that a “threat” can have different Case: 12-60264 Document: 00513162565 Page: 26 Date Filed: 08/20/2015No. 12

- 60264

27 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 satisf ies 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 “cappin g” the m ), 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 the m t o “watch [their] back[s]” and that

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

further discussed infra

, t here is no genuine dispute of material fact that Bell

threatened, harass ed, and intimidated the coaches by intentionally d irect ing

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

Tinker

.

3

.
Having held Tinker applies in this instanc e, the next question is whether

Bell’s record ing 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 a t 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 reasonable ness of find ing 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. Case: 12-60264 Document: 00513162565 Page: 27 Date Filed: 08/20/2015No. 12

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28 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,

i n the light of this summary

- judgment record, a nd for the reasons that follow,

B ell’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 re asonably 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

interf erence with school activities”. Id. Case: 12-60264 Document: 00513162565 Page: 28 Date Filed: 08/20/2015No. 12

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

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

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

acco mpany 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 mus t base their decisions on fact, not intuition”, id. at 221

– 22

(internal quotatio n 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 plat itudinous 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: “W hile 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 m inds 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 possib ility 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 disrupti on of or material interference with

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

fact occurred”. (emphasis added)). Case: 12-60264 Document: 00513162565 Page: 29 Date Filed: 08/20/2015No. 12

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30 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, o f 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

- s chool 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 7 66, 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 th at his recording was meant to “increase

awareness of the situation” and that he was “ foreshadowing something that Case: 12-60264 Document: 00513162565 Page: 30 Date Filed: 08/20/2015No. 12

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

—

with threatening, intimidating, and harassing language

— must be take n

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 t o threaten his safety and

by neutral, third parties as threatening

. (Bell a greed at the disciplinary

committee 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 possibl e consequences were grave

— serious injury to, including

th e 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 reco rding to Facebook and YouT ube.

As noted, t he school district’s Discipline

– Administrative Policy lists

“ [h] arassment, intimidation, or threatening other students and/or teach ers” 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 , th e 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 o f 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”)

. Case: 12-60264 Document: 00513162565 Page: 31 Date Filed: 08/20/2015No. 12

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32 Further, even after finding Bell threatened, intimidated

, and harassed

two teachers, t he 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

reasonable ness 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 f inally, 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://go vernor.virginia.gov/media/3772/ fullreport.pdf (section en titled

“Missing the Red Flags”); s ee also Ponce , 508 F.3d at 771 ( “ [T] he difficul ty 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 teache rs 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

corne rstone of education. Without teaching, there can be little, if any, learning. Case: 12-60264 Document: 00513162565 Page: 32 Date Filed: 08/20/2015No. 12

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33 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, harass ing, 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 . I n addition,

i t encourages and incites other students to engage i n similar disruptive

conduct. Moreover, i t 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, t he real tragedy in this instance is that a high

- school student thought

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

threaten s , harass es , and intimidate s teacher s an d, as a result, object ed 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 constitute s a “ true threat ” under Watts v.

United States , 394 U.S. 705 (1969) (holding hyperbolic threats on the Case: 12-60264 Document: 00513162565 Page: 33 Date Filed: 08/20/2015No. 12

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34 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. Case: 12-60264 Document: 00513162565 Page: 34 Date Filed: 08/20/2015No. 12

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35 E. GRADY JOLLY, s pecially concurring:

In determining the contours of c onstitutionally 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 u nless 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 analy zed 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 mu st 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 Case: 12-60264 Document: 00513162565 Page: 35 Date Filed: 08/20/2015No. 12

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36 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 geo metrically.

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 ke ep 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 whic h 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 Case: 12-60264 Document: 00513162565 Page: 36 Date Filed: 08/20/2015No. 12

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37 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. Case: 12-60264 Document: 00513162565 Page: 37 Date Filed: 08/20/2015No. 12

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38 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 id entifiable threat of school violenc e ”); 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 i n the public schools . . .

must . . . be based on some special cha racteristic 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 offensiv e,

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 c omments on political or social issues

and observing that “ [i]t is .

. . wrong to treat public school officials, for purposes Case: 12-60264 Document: 00513162565 Page: 38 Date Filed: 08/20/2015No. 12

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

actors standing in loco parentis ”).

Indeed, as Judge D. B rooks 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) (five

judge 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 intentio nally 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. Case: 12-60264 Document: 00513162565 Page: 39 Date Filed: 08/20/2015No. 12

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

Judges, concurring:

This case i nvolve s 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 pr oblem for Bell is that his

song

— with its graphic discussion of violence against the coaches

— goes well

beyond blowing the whistl e on the alleged harassment.

Judge Dennis’s dissent contends that the se w histleblowing 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 fo r

ruling in Bel l’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). Y et the Court still balanced the value of that speech against its impact

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

well have come out differently had the Tinkers combined their armband

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

addresses a matter of public concern therefore is no t 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

- Case: 12-60264 Document: 00513162565 Page: 40 Date Filed: 08/20/2015No. 12

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

reasons d iscussed 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 ra ised by off

- campus speech will be left for another

day. That day is comi ng soon, however, and this court or the higher one will

need to provide clear guidance for students, teachers, and school

administrators that balances student s’ 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 ha ve when it is directed at fellow students and educators. Indeed,

although Judge Dennis’s dissent extols the aspects of Bell ’s song that soug ht

to combat sexual harassment, the blanket rule it advocates

— one that would

deprive schools of any authority to di scipline 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) (explaini ng 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. , 65 2 F.3d 565, 568 (4th Cir. 2011)

(detailing online bullying incident in which high school students created Case: 12-60264 Document: 00513162565 Page: 41 Date Filed: 08/20/2015No. 12

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42 webpage called “Students Against Shay’s Herpes” in reference to another high

school student).

With these additional observations, I join the majority opinion. Case: 12-60264 Document: 00513162565 Page: 42 Date Filed: 08/20/2015No. 12

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43 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 shou ld 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 du ring non

school 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 o nly 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 Case: 12-60264 Document: 00513162565 Page: 43 Date Filed: 08/20/2015No. 12

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44 jurisdiction to scrutinize the world around them and likewise express their off

campus 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 num ber 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 matte r 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 mi nors 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 expo sed.” 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 Case: 12-60264 Document: 00513162565 Page: 44 Date Filed: 08/20/2015No. 12

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45 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 “intimidat ing,” the

majority opinion ignores First Amendment precedents demanding that the

government prove more than mere negligence before imposing penalties for so

called “threatening” speech. See Virginia v. Black , 538 U.S. 343, 359 (2003);

N.A.A.C.P. v. Claibo rne 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. Fre derick , 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 accou nt 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 Case: 12-60264 Document: 00513162565 Page: 45 Date Filed: 08/20/2015No. 12

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46 ri ght 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 unp recedented 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 supp ort 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 t o 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 repr essive 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 propa ganda. 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

critici ze 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 Case: 12-60264 Document: 00513162565 Page: 46 Date Filed: 08/20/2015No. 12

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47 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 bu t 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 t he 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 occ urs

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 ar gument, 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 h eart of the First

Amendment’s protection.” Snyder v. Phelps , 562 U.S. 443, 451

– 52 (2011) Case: 12-60264 Document: 00513162565 Page: 47 Date Filed: 08/20/2015No. 12

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48 (internal quotation marks and citation omitted). “The First Amendment

reflects ‘a profound national commitment to the principle that debate on public

issues should b e 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 self

government.’” 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 (198 3)).

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 t o 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 co mmunity, 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 chara cter 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 ‘t he 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 Case: 12-60264 Document: 00513162565 Page: 48 Date Filed: 08/20/2015No. 12

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49 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

cong regation 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 pi cketing 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 picket ing 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. Case: 12-60264 Document: 00513162565 Page: 49 Date Filed: 08/20/2015No. 12

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50 displayed these signs for about 30 minutes before the funer al 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 p unitive 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 provabl y 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 spe ech 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 spee ch 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, Le sbian and
Bisexual Group of Boston, Inc. , 515 U.S. 557, 574 (1995).

Id . Further, the Court concluded: Case: 12-60264 Document: 00513162565 Page: 50 Date Filed: 08/20/2015No. 12

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51 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 spe ech 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 p ublic 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 tha t 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 song 2 descr ibe 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 standard s,

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 pa ge labels the song “P.S. Koaches,” but Bell's complaint identifies
the song's title as “PSK The Truth Needs to be Told.” Case: 12-60264 Document: 00513162565 Page: 51 Date Filed: 08/20/2015No. 12

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52 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 darkl y

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

- po litical 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 exp licitly 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 t he 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 subm itted 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 st udent 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.” Case: 12-60264 Document: 00513162565 Page: 52 Date Filed: 08/20/2015No. 12

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53 “[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 f orms, 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 express ion.” 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.” Case: 12-60264 Document: 00513162565 Page: 53 Date Filed: 08/20/2015No. 12

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54 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 m y 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, re corded, 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 no t 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, i nter 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 co uld it. Case: 12-60264 Document: 00513162565 Page: 54 Date Filed: 08/20/2015No. 12

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55 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

safegu arded “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 regul ate 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, a nd 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 th e 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 Case: 12-60264 Document: 00513162565 Page: 55 Date Filed: 08/20/2015No. 12

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56 harassing, and th reatening” 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 expla ined 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. Case: 12-60264 Document: 00513162565 Page: 56 Date Filed: 08/20/2015No. 12

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57 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 “layp erson”

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 , th e 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 majo rity 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 fo r 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 whethe r 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) Case: 12-60264 Document: 00513162565 Page: 57 Date Filed: 08/20/2015No. 12

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58 (recognizing that the First Amendment does not permit “a majority to silence

dissi dents 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 sometim es

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 t o 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 au thority 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 Case: 12-60264 Document: 00513162565 Page: 58 Date Filed: 08/20/2015No. 12

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59 speech is intentionally directed at the schoo l 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 content

based, vague, and “layperson”

- based restriction directly conflicts with the co re

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 t he 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 ob scenity, 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, 27 33 (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 so lely 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

min ors. Id. at 2732

- 33. Specifically, the law proscribed the sale or rental to Case: 12-60264 Document: 00513162565 Page: 59 Date Filed: 08/20/2015No. 12

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60 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 ac ts 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 St evens
, 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 dep ictions 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 governm ent’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 g uarantee 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 Case: 12-60264 Document: 00513162565 Page: 60 Date Filed: 08/20/2015No. 12

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61 outcome of the case, the Court held that California could not defend its law by

analogizin g 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

. a t 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 o nly 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 whic h

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. U nited 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). Case: 12-60264 Document: 00513162565 Page: 61 Date Filed: 08/20/2015No. 12

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62 Applying t hese 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 circumstan ces,” 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 “tempere d 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 outs ide of school are

somehow qualified if they co incidentally 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 tha t “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). Case: 12-60264 Document: 00513162565 Page: 62 Date Filed: 08/20/2015No. 12

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63 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 th e

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 Cou rt 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 an d 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

abi lity 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 depict ions 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 Case: 12-60264 Document: 00513162565 Page: 63 Date Filed: 08/20/2015No. 12

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64 category of speech is without redeeming social value 11 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 Steve ns
, 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

majorita rian 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 f or 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 “na rrow” 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 breadt h 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. Case: 12-60264 Document: 00513162565 Page: 64 Date Filed: 08/20/2015No. 12

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65 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 protec ting 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 o f 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 studen ts’ 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 sp eech when new communication technologies
emerge. 131 S. Ct. at 2733 (“[W]hatever the challenges of applying the Constitution to ever

advancing 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 Case: 12-60264 Document: 00513162565 Page: 65 Date Filed: 08/20/2015No. 12

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66 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] tec hnologies 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 majori ty

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 standard s, 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

wh at 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 CD A?” 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 Amendm ent. 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.”). Case: 12-60264 Document: 00513162565 Page: 66 Date Filed: 08/20/2015No. 12

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67 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 m inors.” 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 ‘mor bid’ 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,”; a nd (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 signific antly

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 c rier 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 “intentiona lly direct[ed] at the school community”? As

a result of the ambiguities in the majority opinion’s framework, he simply Case: 12-60264 Document: 00513162565 Page: 67 Date Filed: 08/20/2015No. 12

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68 cannot. See id. (“ Through the use of Web pages, mail exploders, and

newsgroups, the same individual can become a pamphleteer.”).

Seco nd

, 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 w hat 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 h ave 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 sch ool 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). Case: 12-60264 Document: 00513162565 Page: 68 Date Filed: 08/20/2015No. 12

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69 thi s 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 a ny 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 inhere ntly 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. Case: 12-60264 Document: 00513162565 Page: 69 Date Filed: 08/20/2015No. 12

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70 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 f reedoms? “[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, whos e 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 8 71

– 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 th at “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 spee ch. See Illinois ex rel. Madigan v. Telemarketing

Associates, Inc.

, 538 U.S. 600, 620 (2003). For example, the Supreme Court Case: 12-60264 Document: 00513162565 Page: 70 Date Filed: 08/20/2015No. 12

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71 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 no t 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 speakin g.” 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 th e “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 propr iety 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 s peaker 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 Case: 12-60264 Document: 00513162565 Page: 71 Date Filed: 08/20/2015No. 12

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72 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 distingui sh “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 wi th 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 factor s 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 Case: 12-60264 Document: 00513162565 Page: 72 Date Filed: 08/20/2015No. 12

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73 ex plaining 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 Elo nis’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 t o 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 foregoin g 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 Ma j. 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

Cour t 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 thir d

- 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 Case: 12-60264 Document: 00513162565 Page: 73 Date Filed: 08/20/2015No. 12

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74 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” stan dard 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

“threat ening,” 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 pub lic 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 5 6 (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 announc es 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 Case: 12-60264 Document: 00513162565 Page: 74 Date Filed: 08/20/2015No. 12

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75 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,

t he 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 schoolh ouse 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 adde d). 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’ on

campus 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 Case: 12-60264 Document: 00513162565 Page: 75 Date Filed: 08/20/2015No. 12

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76 the right s 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 consequen ces 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 studen ts 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 d o

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 cons idered 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 .” Case: 12-60264 Document: 00513162565 Page: 76 Date Filed: 08/20/2015No. 12

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77 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

, Jus tice 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 emph asized 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 thei r 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

— includin g 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 re striction” 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 case 15 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 Case: 12-60264 Document: 00513162565 Page: 77 Date Filed: 08/20/2015No. 12

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78 “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 cle ar what the majority opinion and some of our sister

circuits’ decisions 16 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 argu endo

, 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.” Se e 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

schoo l 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 cas e. 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. Case: 12-60264 Document: 00513162565 Page: 78 Date Filed: 08/20/2015No. 12

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79 qualified immunity for school officials’ suppression of on

- campus speech, 17 the

majority opinion then procee ds 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 th at the School

Board here did not punish Bell because his speech was lewd ( Fraser ) or school

sponsored ( Hazelwood ) or threatened a Columbine

- style mass shooting

( Ponce ), the majority opinion summarily concludes via process

- of

- elimination

that the Tinker fra mework 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 th ese precedents has ever been applied

by the Supreme Court or our Circuit 18 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 me ssages 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 h ere.

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 whe n 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 m eet 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 substantial

disruption 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 Case: 12-60264 Document: 00513162565 Page: 79 Date Filed: 08/20/2015No. 12

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80 Internet speech, like Bell’s. Nevertheless, the majority opinion simply

assumes that those precedents apply under these circumstances without firs t

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 counterac t 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 int erest 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 s trikes 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 u nconstitutionally 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 comp ly 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. a t 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 o pinion did not hold that the Tinker substantial

disruption 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 e ver held that school

officials may punish students’ purely off

- campus speech pursuant to the Tinker framework. Case: 12-60264 Document: 00513162565 Page: 80 Date Filed: 08/20/2015No. 12

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81 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 r each. 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

“rel igious” 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, for bids 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 cas es 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 Case: 12-60264 Document: 00513162565 Page: 81 Date Filed: 08/20/2015No. 12

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82 recognized that the parents’ claim to authority in their own household to direct

the rearing of their children is basic in the s tructure 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 M orse
, 551 U.S. at 424 (Alito, J.,

concurring) ( observing that “[i]t is a dangerous fictio n 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

c onstitutional 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 Case: 12-60264 Document: 00513162565 Page: 82 Date Filed: 08/20/2015No. 12

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83 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

- ca mpus 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 haras sment 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 compo sed his rap song. In
2009, Itawamba coach Bobby Hill was arrested and accused of sending sexually explicit text
messages to a minor student. Case: 12-60264 Document: 00513162565 Page: 83 Date Filed: 08/20/2015No. 12

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84 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 maj ority 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 exer cised 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 judgme nt, we are

required to view the evidence in the light most favorable to Bell, the non

- Case: 12-60264 Document: 00513162565 Page: 84 Date Filed: 08/20/2015No. 12

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85 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 refusin g 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 lyri cs 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 regularly 20 records music in a professional

studio. Indeed, the very rap that gave rise to this case w as 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 t o “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 for get 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, himsel f, 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. Case: 12-60264 Document: 00513162565 Page: 85 Date Filed: 08/20/2015No. 12

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86 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 intentio nally 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 vio lence
“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 th e 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 comm it 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 p erson 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. Case: 12-60264 Document: 00513162565 Page: 86 Date Filed: 08/20/2015No. 12

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87 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 scho ol’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

artis tic 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 Ra iney 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 furth er 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 re flects 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. Case: 12-60264 Document: 00513162565 Page: 87 Date Filed: 08/20/2015No. 12

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88 return to classes. Later, when Bell was suspended pending the outcome of the

Discip linary 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 t o 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, boistero us 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 reasona bleness 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

am ongst 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 Case: 12-60264 Document: 00513162565 Page: 88 Date Filed: 08/20/2015No. 12

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89 superintendent referred only to the fact that the coaches said that they had

altered their “teach ing 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 ha rmed 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 disru ption 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 “substantial

disruption” framework.

In reaching the opposite conclusion, however, the majori ty 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

conclusio n 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 th e 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 h e heard these
statements himself or via a third party. Case: 12-60264 Document: 00513162565 Page: 89 Date Filed: 08/20/2015No. 12

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90 the majority opinion fails to apprehend th at 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 vi ew

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

understand s 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 ord er 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). Case: 12-60264 Document: 00513162565 Page: 90 Date Filed: 08/20/2015No. 12

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91 For additio nal 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 “sub stantial 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 stude nts

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, th is “policy demonstrates an awareness of Tinker ’s substantial

disruption 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 stu dent 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

opini on, 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. Case: 12-60264 Document: 00513162565 Page: 91 Date Filed: 08/20/2015No. 12

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92 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 o fficials. 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

crea tures

— 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.” Texa s 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 bread th 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 Case: 12-60264 Document: 00513162565 Page: 92 Date Filed: 08/20/2015No. 12

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93 and dissenting in part). “That they are educating the young for c itizenship 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. a t 637. “[E]ducation prepares individuals to be self

- reliant and self

sufficient 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 matu rity 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 e ffort 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,

i n 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 c ondones 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 Inte rnet.

For these reasons, I respectfully and earnestly dissent. Case: 12-60264 Document: 00513162565 Page: 93 Date Filed: 08/20/2015No. 12

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94 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 f it

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 Firs t 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 cat egorical ly 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

- di sruption 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 betwe en 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 I nternet 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 ha rm 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

spe ech”). Case: 12-60264 Document: 00513162565 Page: 94 Date Filed: 08/20/2015No. 12

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95 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

t hey 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. S ee, e.g.

, J.S. , 650 F.3d at 928

– 31

(majority op.). A nd some courts ha ve held that Tinker applies to online off

campus 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) , o r 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 th e 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 d irection.

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 on

campus and speech taking place off

- campus”). Schools officials may also punish

speech that advocates illegal drug use and that takes place at off

- campus

s chool

- sanctioned activities during school hours. Morse v. Frederick , 551 U.S. Case: 12-60264 Document: 00513162565 Page: 95 Date Filed: 08/20/2015No. 12

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96 393, 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 spe cial 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 sa me 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 t hreats [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 7 71 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 d e vastating and so particular to schools that Morse analysis is

appropriate.” Id. (emphasis added). Case: 12-60264 Document: 00513162565 Page: 96 Date Filed: 08/20/2015No. 12

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97 In this case, Bell’s rap song was performed and broadcasted entirely off

campus, 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

whi ch 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”). Ul timately, the difficult issues of off

campus online speech will need to be addressed by the Supreme Court.

For the foregoing reasons, I respectfully dissent. Case: 12-60264 Document: 00513162565 Page: 97 Date Filed: 08/20/2015No. 12

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98 HAYNES, Circuit Judge, dissenting in part:

I respectful ly 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 majorit y opinion

. See Bell

,

774 F.3d at 290

– 303

.

1 C redibility and inferences matter here, so I would not reverse the denial of Bell’s
summary judgment motion

. Case: 12-60264 Document: 00513162565 Page: 98 Date Filed: 08/20/2015No. 12

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99 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 o ff

- 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 I ndep. 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

Co unty 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 st udents 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 a pply 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, subst antial 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 w ould give rise to any reasonable forecast by
the school administration of ‘substantial and material’ disruption of school activities before
expression may be constitutionally restrained.”). Case: 12-60264 Document: 00513162565 Page: 99 Date Filed: 08/20/2015No. 12

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100 school’s discipline of the student. 2 In this regard, I would

consider three non

- exclusive factors:

a. whether the speech c ould reasonably be expected

to reach the school environment. 3

b. whether the school’s interest as trustee of student

well

- being 4 outweighs the interest of respecting
the traditional parental role 5 in disciplining a

student for off

- campus speech . . .

i. giving p articular 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] s peech 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

– 3 9 (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) (applyi ng 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 sc hool 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 f iled
the lawsuit in “objecti[on] to the school board’s bootstrap transmogrification into Super

Parent”).

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

. Case: 12-60264 Document: 00513162565 Page: 100 Date Filed: 08/20/2015No. 12

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101 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. Case: 12-60264 Document: 00513162565 Page: 101 Date Filed: 08/20/2015