J. Pazzano McBaine Brief FINAL

No.

15-9999

TAYLOR BELL,

ETITIONER

ITAWAMBA COUNTY SCHOOL BOARD,

ESPONDENTS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRI

OR PETITIONER

Joseph A.M. Pazzano

Counsel for Petitioner

jpazzano@berkeley.edu

University of California, Berkeley

School of Law Berkeley, CA 94720

QUESTIONS PRESENTED

1. Does the Tinker standard, which allows schools to restrict students’ speech on-

campus or at school-sponsored events, apply to a student whose speech occurred

entirely off-campus, without school resources, and outside school hours?

2. If Tinker applies, should the lower court’s summary judgment decision and

finding of a “substantial disruption” nonetheless be reversed because Bell did not

himself play or talk about his protest song at school?

3. By speaking out about allegations of sexual misconduct at his high school

through a traditional form of protest — music — does Bell’s speech qualify for

special First Amendment protection, under the public concern doctrine?

TABLE OF CONTENTS

INTRODUCTION ................................................................................................................ 1

STATEMENT OF THE CASE .............................................................................................. 2

I. Factual Background ..................................................................................... 2

II. School Disciplinary Proceedings .................................................................. 4

III. Legal Background ........................................................................................ 8

SUMMARY OF ARGUMENTS ........................................................................................... 11

STANDARD OF REVIEW ................................................................................................. 13

ARGUMENT ...................................................................................................................... 13

I. The First Amendment Protects a Student’s Right to Speak Off-Campus When

He is Not Using School Resources or at a School-Sponsored Event. ................... 13

A. Established First Amendment Principles Protect Bell’s Right to

Criticize His Teachers Off-Campus. ..................................................... 14

1. There is No “Longstanding Tradition” of Regulating Student Speech Off-

Campus. .................................................................................................................. 15

2. Bell’s Song Does Not Fall Into Any of the Few Limited Categories of

Unprotected Speech. .............................................................................................. 18

B. Restricting Student Speech On-Campus or at School Events is at the

“Far Reaches of What the First Amendment Permits.” ........................ 18

1. The Tinker Standard, Allowing Schools to Restrict Speech On-Campus, was

Not Meant to Apply Off-Campus. .......................................................................... 19

2. Subsequent Case Law Reaffirms that Tinker Does Not Reach Off-Campus

Speech. .................................................................................................................... 20

3. Speech Appearing on the Internet is Not Subject to a Higher Level of

Scrutiny Than Non-Internet Speech and is Afforded the Same First Amendment

Protections. ............................................................................................................. 25

4. That Bell Expected the School Community Might Hear His Song is Not

Sufficient to Satisfy Tinker. .................................................................................... 27

5. A Jury Should Decide Whether Bell’s Rap Could be Considered Threatening,

Especially Since the School District Itself Thought it was a Close Question ........ 29

iii

C. This Court Need Not Extend Tinker Because Schools Already Have

Ample Authority to Restrict Speech if it Constitutes a “True Threat.” . 32

1. The School District Did Not Believe that Bell’s Song Constituted a “True

Threat.”’ .................................................................................................................. 33

II. Even if Tinker Applies, Summary Judgment Was Improperly Granted

Because the School District Did Not “Reasonably Forecast” a “Substantial

Disruption” of School Activities. ....................................................................... 34

III. Bell’s Speech Exposing the Sexual Misconduct of High School Coaches

Qualifies for Heightened First Amendment Protection, Under the Public

Concern Doctrine. ............................................................................................ 36

CONCLUSION ................................................................................................................... 40

TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................................... 13

Bethel School District v. Fraser, 403 U.S. 675 (1986) ............................................. passim

Brandenburg v. Ohio, 395 U.S. 444 (1969) ................................................................. 15, 18

Brown v. Entm’t Merchants Ass’n, 564 U.S. 786 (2011)……..……………………………..passim

Cox v. Louisiana, 379 U.S. 536 (1965) .............................................................................. 37

Elonis v. United States, 135 S. Ct. 2001 (2015) ................................................................ 39

Ginsberg v. New York, 390 U.S. 629 (1968) ..................................................................... 17

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) .............................. passim

Hess v. Indiana, 414 U.S. 105 (1973) ................................................................................ 18

Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744 (2014) .................... 13

J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011) .................. 10

Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992) ........................................ 32

Meyer v. Nebraska, 262 U.S. 390 (1923) .......................................................................... 17

Miller v. California, 413 U.S. 15 (1973) ............................................................................ 18

Morse v. Frederick, 551 U.S. 393 (2007) .................................................................. passim

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .................................................... 15

Palko v. Connecticut, 302 U.S. 319 (1937) ....................................................................... 14

Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510

(1925) .............................................................................................................................. 17

Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92 (1972) ........................................ 14

R.A.V. v. St. Paul, 505 U.S. 377 (1992) ............................................................................. 15

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) ................................. passim

Roth v. United States, 354 U.S. 478 (1957) ...................................................................... 15

Schneck v. United States, 249 U.S. 47 (1919) ................................................................... 36

Snyder v. Phelps, , 562 U.S. 443 (2011) .................................................................... passim

Terminello v. Chicago, 337 U.S. 1 (1949) ......................................................................... 15

Tinker v. Des Moines Indep. School Dist., 393 U.S. 503 (1969) .............................. passim

Tolan v. Cotton, 134 S. Ct. 1861 (2014) ............................................................................. 13

Troxel v. Granville, 530 U.S. 57 (2000) ............................................................................ 17

United States v. Harris, No. 8:12-CR-205-T-17MAP, 2016 WL 4204633, at *3 (M.D. Fla.

July 28, 2016) ................................................................................................................ 31

United States v. Stevens, 559 U.S. 460 (2010) ............................................................ 15, 16

United States v. Wilson, 493 F. Supp. 2d 484 (E.D.N.Y. 2006) ...................................... 31

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ........................................................ 40

Watts v. United States, 394 U.S. 705 (1969) .............................................................. 32, 33

Other Authorities

Andrea L. Dennis, Poetic (in)justice? Rap Music Lyrics As Art, Life, and Criminal

Evidence, 31 Columb. J. L. & Arts 1 (2007) .................................................................. 31

Hien Timothy N. Nguyen, Cloud Cover: Privacy Protections and the Stored

Communications Act in the Age of Cloud Computing, 86 Notre Dame L. Rev. 2189

(2011) ............................................................................................................................. 26

Karen J. Krogman, Protecting our Children: Reforming Statutory Provisions to

Address Reporting, Investigating, and Disclosing Sexual Abuse in Public Schools,

2011 Mich. St. L. Rev. 1605 (2011) ................................................................................ 39

Rules

Fed. R. Civ. P. 56(a) ..................................................................................................... 13, 29

Constitutional Provisions

U.S. Const. amend. I. ......................................................................................................... 14

INTRODUCTION

When four female students at Itawamba Agricultural High School were sexually

harassed by two male coaches, Taylor Bell faced a choice. He could say nothing, sweep

his sentiments under the rug, and quietly finish out his senior year of high school. Or, he

could stand up and speak out. He chose to speak out and, as an aspiring musician, he

chose to speak out with his own voice and in his own way. On his own time, using his

own computer, and without school resources, he wrote a song about the allegations and

posted it to Facebook and YouTube. His rhetoric was heated, and his emotions were

real. But most everyone involved – Bell himself, the students, and even one of the

alleged harassers – saw it for what it was: “just a rap” that tried to ignite a conversation

about sexual harassment and the treatment of women in American society.

The First Amendment would undeniably protect Bell’s song if it did not mention

the school or the coaches. It would protect it if he made it a few months later, after he

graduated. The Constitution would even protect this exact song, with the same lyrics, if

it were made by a parent or a student at another school. But the school district argues

that the First Amendment wields no power here, and the school district should be

allowed to restrict and punish students’ off-campus speech. That is a leap this Court has

never made and one which insults the First Amendment.

The First Amendment exists to protect uncomfortable, even vile, speech.

Protected speech may be provocative and thought-provoking, stirring the deepest of

emotions and may even spur people to take extreme action. It may be hurtful, and it

may be painstakingly hard to hear. But the Constitution still protects it. The First

Amendment wrests the regulating hands of the state away from Americans’ private

conversations, public confrontations, and vocal rallying cries. It should be no different

for a speaker whose speech would otherwise be protected but for his status as a student.

STATEMENT OF THE CASE

I. Factual Background

In December 2010, Taylor Bell was an eighteen-year old adult senior at Itawamba

Agricultural High School in Mississippi. R. at 114a, 117a. Described as “bright” by his

teachers, Bell had no record of behavioral issues or school disciplinary proceedings

against him, except for one in-school penalty for tardiness. R. at 116a; Ex. 16.

Shortly before Christmas 2010, several female students — all of them minors —

informed Bell that two male coaches, Michael Wildmon and Chris Rainey, had sexually

harassed them over the course of several months. R. at 46a, 117a, 226a. While a number

of girls were subject to inappropriate touching and sexually-charged remarks, Bell was

informed of four principal incidents. R. at 117a. First, Coach Wildmon told Renisha

Morris that she had a “big butt,” that he would like to date her if she was not a minor,

and that she was “one of the cutest black female students” at the school. R. at 117a. He

also looked down her shirt and touched her. R. at 117a. Second, Coach Rainey told a 16-

year-old lesbian student, Shantiqua Shumpert, that he had heard she “messed with

some nasty people” but that he could “turn [her] back straight.” R. 117a, 227a. Third,

Coach Rainey approached yet another student, Keyauna Gaston, and told her, “damn

baby, you are sexy.” R. 117a, 225a. Finally, Deserae Shumpert was witness to some of the

aforementioned conduct and was also subject to Coach Rainey touching her ears until

she told him to stop. R. 117a, 221a.

The school district has not contested the veracity of the girls’ allegations of sexual

misconduct. R. at 60a. Moreover, the school district did not seek to interview the victims

or further investigate the claims at any point prior to this lawsuit. R. at 224a, 226a,

228a.

Bell viewed the school administration as unresponsive to students’ claims about

teachers’ misconduct and believed that the school administration would “ignore” the

girls’ claims, even if he were to raise them with the administration himself. R. 117a.

Instead, Bell expressed his sentiments about the situation through the medium he knew

best: music. R. 116a. As an aspiring rap artist, Bell had composed music and lyrics since

he was a child and, as a teenager, recorded music in a studio once a week. R. at 116a, n.3.

Seeking to “deploy[] the artistic conventions and style of the rap genre . . . to

critique the coaches’ sexual harassment of female students,” Bell recorded a rap under

his stage name “T-Bizzle” at an off-campus recording studio called “Get Real

Entertainment” records. R. at 94a. Bell completed the rap over the Christmas holidays,

while school was not in session. R. at 117a. Bell posted the rap to only two social media

platforms. R. at 122-23a. He first posted an unpolished version of the rap on Facebook,

using his own private computer at home, and after school hours. R. 123a. Bell could not

have accessed Facebook at school, nor could any other student, because the website was

blocked on school computers, and students were not allowed to bring cellphones to

school. R. at 98a, 122a. Students responded positively to Bell’s artistry, remarking that

he “had all the talent in the world” and predicting that he would one day be “famous.” R.

at 123a, n.21. Bell then created a more polished version of the rap for YouTube, adding

sound effects, visual effects, and a monologue explaining the rap’s importance to him. R.

at 124a. He remarked that the issue of sexual harassment was one he “felt like [he]

needed to address . . . [as] an artist.” R. at 124a. He also remarked that he had

deliberated about writing a song about this issue “for a long time,” but that he was

ultimately moved to act by the thought that he might one day have a daughter affected

by sexual misconduct. R. at 124a. As with the Facebook post, he used his home

computer and posted the song outside of school hours. R. at 125a.

Although he did not believe that the coaches would ever hear the rap, he intended

for the rap (1) to “increase awareness of the situation; (2) to enable him to “speak out”

about sexual harassment and sexual misconduct generally; and (3) to serve as a vehicle

for his “artistic expression” and an outlet to describe his own “real-life experiences.” R.

at 9a, 59a, 127a.

II. School Disciplinary Proceedings

Bell did not play the song at school nor did he encourage students to listen to the

song at school. R. at 98a. He also never accessed the song on any school technology. R.

at 98a. After the first version was posted on Facebook, Wildmon’s wife had been alerted

to the recording and informed her husband about it. R. at 6a. Wildmon then asked his

students if they knew of the recording and asked them to play it for him on their

cellphone, in contravention of established school policy. R. at 98a. The students knew

about the song before Wildmon mentioned it to them, but there is no evidence on the

record that they talked about the song at school, played the song at school, or talked to

either of the coaches about the song. R. at 98a. The school district is aware of only one

instance in which the song was played at school: when Coach Wildmon himself asked

the students to play the song for him. R. at 98a.

Upon asking the students to play the song, Wildmon discovered that Bell’s song

described the aforementioned allegations of sexual misconduct, the underlying factual

details of which the school district has not contested. R. at 60a, 119a, 193a. But because

Coach Wildmon felt that “his name had been slandered,” he immediately informed the

school principal, who then informed the school district superintendent. R. at 123-24a.

Bell was not sent home and was allowed to stay on campus throughout the day. R. at 6a,

124a.

The next day, Bell was summoned to the principal’s office and the school-board

attorney questioned Bell about the contents of his rap. R. at 6a. He was asked about the

factual basis for the allegations, who informed him of the misconduct, and about the

scope of the allegations. R. at 6a. Bell indicated that he believed all the allegations to be

true. R. at 124a. The principal did not contact law enforcement but decided to send Bell

home for the rest of the day; the principal personally drove Bell home. R. at 97a. The

principal did not indicate that she thought Bell was dangerous or threatening. R. at 11a.

The school then closed for almost one week due to inclement weather. R. at 6a.

As he was not told to remove his song from the Internet or that he would suffer

disciplinary action for the song, Bell then posted the more polished version of the song

on YouTube, during the school break. R. at 97a, 124a. At the end of the inclement

weather period, Bell returned to school and attended his morning classes without

incident. R. at 6a, 125a. He was then summoned to the assistant principal’s office, where

he was told that he has been suspended indefinitely, pending the results of a disciplinary

hearing with the school board. R. at 125a.

The assistant principal informed Bell that the school board took issue with four

segments of the rap out of almost 100 lines of lyrics, in which he “foreshadowe[ed]

something that might happen” to the coaches if they were to continue with the sexual

misconduct. R. at 3a-5a, 8a. Bell later explained that he thought that “somebody’s

parents . . . or their brother . . . or their sister or somebody might get word [of the sexual

misconduct]” but that he was not “saying that [he] was going to [take action against the

harassers.]” R. at 127a, n.28. In foreshadowing the actions that others might take

against the harassers, he included a warning that the coaches should be watchful and he

made reference to a “rueger,” a type of firearm, which Bell considered to be “hyperbole.”

R. at 30a, 197a. The school board does not dispute that Bell did not own a firearm, had

no immediate access to a firearm, did not possess a firearm, and had no prior experience

with firearms. R. at 95a. An expert witness later testified that the recording was “nothing

more than ‘colorful language’ used to entice listeners and [was] reflective of the norm

among young rap artists.” R. at 11a.

The assistant principal informed Bell that the disciplinary hearing would

establish whether he had violated the administrative policy against “harassment,

intimidation, or threatening other students and/or teachers.” R. at 7a. Despite the

school’s contention that Bell was being suspended for allegedly threatening speech, the

principal did not send Bell home immediately and instead allowed him to remain in the

school commons, unsupervised, until the school bus arrived at the end of the day. R. at

97a, 125a.

At the disciplinary hearing several weeks later, the committee indicated that it

sought to establish whether Bell had violated school policy. R. at 125a. The school board

did not present evidence that the “song had caused or had been forecasted to cause a

material or substantial disruption to the school’s work or discipline.” R. at 127a. Neither

Coach Wildmon or Coach Rainey testified, and the school district did not allege that the

coaches felt threatened by the song. R. at 128a. The school district did not contend that

the song had been heard by any student or staff member on-campus, aside from one

instance where Coach Wildmon asked his student to play it in class. R. at 98a. Instead,

the hearing concluded with a committee member speaking about his issue with the

vulgar content of the speech, not the potentially threatening nature of the speech. R. at

128a. The committee member suggested that Bell should have “censor[ed]” the material

to avoid the use of “bad words.” R. at 128a. He suggested that Bell could have replaced

the “bad words” with “big words” to avoid discipline. R. at 128a.

After the initial disciplinary hearing, Bell’s mother received a letter upholding the

suspension on the grounds that his song was intimidating and harassing. R. at 128a. The

committee found that the speech could not be considered threatening under school

policy, because it was not clear that he made a threat to the school. R. at 129a. Bell’s

suspension consisted of being placed in an alternative school for nine weeks, the

remainder of the school term, and he was banned from any school functions for the

same time period. R. at 128-29a. School board policy allowed him to make up missed

work but provided an unspecified time frame for doing so. R. at 174a. If he failed to

complete the work in the assigned time frame, he would receive no credit. R. at 174a.

Bell made attempts to make up work by contacting his teachers, asking them to “not give

up on [him]” and affirming that he viewed a high school diploma as a “necessity to

survive.” R. at Ex. 16, D-13.

A few days after the initial disciplinary hearing, the school district contacted

Bell’s mother again. R. at 9a. Without providing any further detail or justification, the

school district informed her that the school board had reached a revised conclusion

about the song. R. at 9-10a. The school district felt that Bell did in fact threaten, harass,

and intimidate the teachers, revising its previous finding that it was unclear whether he

had threatened them. R. at 9-10a. The district kept the existing suspension in place. R.

at 10a.

III. Legal Background

Two weeks after the disciplinary proceeding, Bell and his mother filed this 42

U.S.C. § 1983 civil action in the United States District Court for the Northern District of

Mississippi. R. at 130a. The Itawamba County School Board, the school district

superintendent, and the school principal were named as defendants, in their individual

and official capacities. R. at 130a. Bell claimed that the defendants had violated his First

Amendment right to free speech by punishing him for speech that occurred entirely off-

campus and without school resources. R. at 130a. He sought injunctive relief to restore

his school privileges, expunge the disciplinary action from his record, and enjoin the

school board from enforcing its policy against intimidating, threatening, or harassing

speech, when the speech occurred entirely off-campus or outside of school-sponsored

activities. R. at 130a. He also sought nominal damages. R. at 130a.

Shortly thereafter, the district court held a hearing on Bell’s motion for

preliminary injunction. R. at 131a. Unlike the disciplinary hearing, the two coaches

testified at the preliminary injunction hearing. R. at 131a. Neither coach questioned the

veracity of the allegations at the hearing, but they did offer their perspectives about the

potential disruptiveness of the song. R. at 131a. Coach Rainey testified that he had never

heard Bell’s song, that he viewed it as “just a rap,” and that his approach to it was to “let

it go” because “it would probably just die down.” R. at 131a. He did, however, feel that it

caused him to re-evaluate how he spoke to students, to ensure that his comments were

not viewed as “inappropriate.” R. at 131a. He confirmed that there had been not been

much discussion about the song at school or in his classes, but that there had been

significant chatter about the school’s response to the situation and the decision to

suspend and transfer Bell. R. at 131a.

Similarly, Wildmon testified that he was more careful of his behavior toward

students, making sure that if he was “scanning the classroom, that [he wouldn’t] look in

one area too long [to avoid being] accused of . . . staring at a girl.” R. at 131a. He testified

that his students “seem[ed] to act normal” after the release of the song, but that he was

disturbed enough to order his players to stay at basketball games, until he was safely in

his car. R. at 131a. He also stated that he felt he should now refrain from being “hands

on” with the female students on the track team. R. at 98a, n. 23.

Since Bell had only day left in the alternative school at the time of the preliminary

injunction hearing, the district court held that the issue was moot. R. at 177a. The

parties then filed cross-motions for summary judgment. R. at 178a. The district court

granted the defendants’ motion for summary judgment. R at 132a. The district’s court

principal reasoning was that this Court’s decision in Tinker v. Des Moines Independent

Community School District controlled the outcome of Bell’s case. R. at 207a. Tinker

allows schools to restrict students’ speech when the school can reasonably forecast that

the speech will “materially disrupt[] classwork or involve[] substantial disorder or

invasion of the rights of others.” R. at 207a. This Court has not extended the same

latitude to schools seeking to restrict off-campus speech. R. at 134a. Bell timely

appealed to the United States Court of Appeals for the Fifth Circuit, in part on the basis

that Tinker did not apply. R. at 132a.

The Fifth Circuit reversed the district court’s summary judgment order, and held

that Bell was entitled to First Amendment protections, for three main reasons. First,

Tinker is not applicable to Bell’s case because this Court’s case law does “not address

students’ speech that occurs off-campus and not at a school-approved event.” R. at 133a.

Second, even if Tinker did apply, the school district has not met its summary judgment

burden in proving that a “material and substantial disruption at school actually occurred

or reasonably could have been forecasted.” R. at 133-34a. Finally, because Bell’s song

could not be “reasonably interpreted . . . as a serious expression of an intent to cause

harm,” the school district could not assert that Bell’s speech fell under the “true threat”

exception to the First Amendment. R. at 159a.

The school district petitioned the Fifth Circuit for en banc review, and the Fifth

Circuit granted review. R. at 14a. Recognizing that there is a well-defined Circuit split

whether Tinker applies to off-campus speech and that restricting off-campus speech

“creates a tension between a student’s free-speech rights and a school’s official duty to

maintain discipline,” the en banc majority affirmed the district court’s summary

judgment order. R. at 21a, 23a. Judge Elrod concurred but stressed that a “broad off-

campus application of Tinker ‘would create a precedent with ominous implications . . .

[by] empower[ing] schools to regulate students’ express activity no matter where it takes

place, when it occurs, or what subject matter it involves.’” R. at 42a (quoting J.S. ex rel.

Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 939 (3d Cir. 2011) (en banc) (Smith,

J., concurring)).

Three separate dissents were filed. R. at 46-113a. In his dissent, Judge Dennis

reiterated the rationale of the Fifth Circuit panel that Tinker did not apply and that

Bell’s song did not cause a substantial disruption. R. at 46a. In addition, he asserted that

Bell’s speech was entitled to heightened First Amendment protection, given that he was

speaking on a matter of public concern. R. at 46a. Judge Dennis expressed concern that

“the majority opinion allows schools to police students’ Internet expression anytime and

anywhere — an unprecedented and unnecessary intrusion on students’ rights.” R. at

49a. In particular, he stressed that the school district’s position would “effectively

permit[] school officials . . . to punish a student’s protest of teacher misconduct

regardless of when and where the speech occurs and regardless of whether the student

speaker is, at the time of the speech, an adult or a minor fully within the custody and

control of his or her parents.” R. at 51a.

Seeking to overturn the Fifth Circuit’s en banc decision, Bell sought a writ of

certiorari, which this Court granted.

SUMMARY OF ARGUMENTS

Taylor Bell’s song, exposing the sexual misconduct allegations against two high

school coaches, is protected by the First Amendment. Under the framework advanced by

the school district, schools would be granted unprecedented authority to police and

regulate students’ off-campus speech — speech that even their parents may approve of.

The First Amendment does not give schools that right.

First, the First Amendment protects Bell’s speech because he spoke off-campus,

without the use of school resources, and on his own time. This Court’s standard in

Tinker, which allows schools to restrict students’ on-campus speech if it causes a

substantial disruption, has never been held to apply to off-campus speech. This Court

should decline the school district’s invitation to do so today. To accept the school

district’s invitation would conflict with decades of Supreme Court jurisprudence

avoiding intrusions into parents’ rights to structure their children’s lives and control

their children’s access to the various forms of speech that they see fit.

While the school district argues that it requires Tinker to apply off-campus to

protect students’ safety, this Court’s “true threat” doctrine provides all the tools that

schools need to protect their students from off-campus threats. Applying the true

threats doctrine to this case, instead of Tinker, requires a reversal of the Fifth Circuit,

because the school district cannot reasonably argue that it believed Bell’s speech to

constitute a true threat.

Basic First Amendment principles control this case. This Court has applied the

First Amendment with wide effect and has isolated unprotected speech to a few limited

categories, such as obscenity, fighting words, and incitement. Because Bell’s speech does

not fall into one of these limited categories and because there is no authority for the

Court to create a new unprotected category of off-campus speech, this Court should

reverse the holding of the Fifth Circuit that the First Amendment does not protect Bell.

Moreover, contrary to the school district’s suggestion that this Court should apply

increased scrutiny to Internet speech, this Court has held that speech appearing on the

Internet is entitled to the same protection as non-Internet speech.

Second, even if Tinker does apply to this case, the Fifth Circuit improperly

granted summary judgment because the school district has not met its heavy burden of

proving that Bell’s speech substantially disrupted the school’s learning environment.

Each “disruption” advanced by the school district is either insubstantial or connected to

the release of the misconduct allegations themselves, not Bell’s speech.

Finally, Bell’s speech is entitled to special First Amendment protections as a

matter of public concern. Because Bell was speaking out about sexual misconduct, an

issue of great importance for the school community and broader society, and because he

was doing so through a public forum — the Internet — he is entitled to heightened First

Amendment protection.

For these reasons, Bell respectfully requests that this Court reverse the judgment

of the U.S. Court of Appeals for the Fifth Circuit and hold that his speech is protected by

the First Amendment.

STANDARD OF REVIEW

An appellate court reviews summary judgment decisions de novo. Highmark Inc.

v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748 (2014). Summary judgment is

properly granted only when “the movant shows 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). In adjudicating summary judgment, “[t]he evidence of the nonmovant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Tolan v. Cotton, 134

S. Ct. 1861, 1863 (2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 245

(1986)).

ARGUMENT

I. The First Amendment Protects a Student’s Right to Speak Off-

Campus When He is Not Using School Resources or at a School-

Sponsored Event.

The First Amendment does not allow a school to punish a student for speech that

occurs entirely off-campus, without school resources, and outside of school time. This

Court has never before announced such a broad-based rule and should not do so today.

First, the First Amendment provides broad protection to citizens engaging in public

speech and limits that speech in only a few categories, none of which are applicable to

this case. Second, while the school district asks this Court to extend Tinker to off-

campus speech for the first time, this Court did not expect Tinker to apply off-campus

when it was decided and has confirmed that understanding time and again. To the

contrary, members of this Court have expressed concern that Tinker can “easily be

manipulated in dangerous ways,” and that parents do not “delegate their authority . . . to

determine what their children may hear and say . . . to public school authorities.” See

Morse v. Frederick, 551 U.S. 393, 423-24 (2007) (Alito, J., concurring). Third, although

the school district maintains that it needs Tinker to protect the safety of its students,

this Court has long upheld an exception to First Amendment protections when the state

finds that there is a “true threat.” Thus, even without Tinker, this Court has provided the

school district with all the tools it needs to restrict student speech when it is truly

threatening to staff or students. But given that there is no credible evidence that Bell

posed a true threat to the school community, the school district may not avail itself of

this exception in this case. Finally, the First Amendment protects the rights of students

to speak freely off-campus, in part because this Court has granted significant latitude to

parents to make parenting and discipline decisions within the privacy of their own

homes.

A. Established First Amendment Principles Protect Bell’s Right

to Criticize His Teachers Off-Campus.

The First Amendment provides that “Congress shall make no law . . . abridging

the freedom of speech.” U.S. Const. amend. I. This Court has heralded the First

Amendment as “the matrix, the indispensable condition, of nearly every other form of

freedom.” Palko v. Connecticut, 302 U.S. 319, 327 (1937). The First Amendment

provides broad protections and prevents the state from using its “power to restrict

expression because of its message, its ideas, its subject matter, or its content.” Police

Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972). These broad protections exist

to cultivate a productive national dialogue, such that “any restriction on expressive

activity . . . would completely undercut the ‘profound national commitment to the

principle that debate on public issues should be uninhibited, robust, and wide-open.’”

Id. at 96 (emphasis added) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270

(1964)).

This Court has recognized a limited number of exceptions to the First

Amendment’s broad and pervasive reach, in a “few limited areas.” United States v.

Stevens, 559 U.S. 460, 468 (2010) (citing R.A.V. v. St. Paul, 505 U.S. 377, 383 (1992)).

The First Amendment does not grant states “freedom to disregard these traditional

limitations” and it does not have “a freewheeling authority to declare new categories of

speech.” Id. at 468, 472. At a minimum, when the state seeks to restrict a previously

protected category of speech, it must show that there was a “longstanding tradition” in

American society of restricting such speech. Brown v. Entm’t Merchants Ass’n, 564 U.S.

786, 795 (2011). The limited categories of unprotected speech include incitement to

imminent lawless action, “fighting words” or direct inciting insults, and obscenity. See

Brandenburg v. Ohio, 395 U.S. 444, 449 (1969); Terminello v. Chicago, 337 U.S. 1, 3

(1949); Roth v. United States, 354 U.S. 478, 489 (1957).

1. There is no “longstanding tradition” of regulating

student speech off-campus.

This Court has been skeptical of states which seek to create new categories of

unprotected speech. In Brown, the Court rejected California’s argument that it should

be able to restrict the sale of video games to minors because they constituted “violent

speech.” 564 U.S. at 792. This Court held that, while violent speech may at first blush

seem like an analogue to obscenity, it had previously interpreted obscenity as “shocking

. . . depictions of sexual conduct.” Id. at 793. This Court was not willing to depart from

previously established definitions of unprotected speech without strong evidence of a

long-held tradition of restrictions in the new category. Id. at 795. To hold otherwise

would give credence to a “starling and dangerous proposition.” Id. at 792.

Here, the school district asks this Court to create a new category of unprotected

speech: off-campus speech perceived as threatening, harassing, or intimidating, even if

the “threats” were not credible, verifiable, or actionable. It is the precise sort of novel

restriction that has given this Court pause. Just as graphically violent video games seem

like a close analogue to obscene material, a minor’s off-campus speech might be viewed

as akin to his on-campus speech. See id. at 793. But the two are separate categories. As

discussed further below, this Court has enshrined the schools’ ability to control the on-

campus climate by restricting and punishing speech that might disturb the learning

environment. But it has not extended that ability to speech occurring entirely off-

campus, outside of school events. Because the state has not suggested nor does the

record reflect that there is a “longstanding tradition” of schools restricting off-campus

speech, this Court need not add to the “few limited categories” of unprotected speech.

See id. at 795; Stevens, 559 U.S. at 468.

While there is no tradition of schools interfering with students’ off-campus

speech, this Court has traditionally safeguarded the rights of parents to structure their

family and create the environment for their children that they feel comfortable with. In

striking down California’s ban on sales of violent video games to minors in Brown, the

Court expressed concern that the ban substituted the state’s judgment for that of the

children’s parents. Brown, 564 U.S. at 804. The majority asserted that the ban’s “entire

effect is only in support of what the State thinks parents ought to want.” Id. The Court

also described the ban as “seriously overinclusive because it abridges the First

Amendment rights of young people whose parents . . . think violent video games are a

harmless pastime.” Id. at 805. Brown stands for the crucial proposition that children

(and therefore, students) “are entitled to a significant measure of First Amendment

protection” in the privacy of their own homes and outside of the classroom. Id. at 794.

Indeed, it is “only in relatively narrow and well-defined circumstances” that the state

may decide to limit the rights of minor children. Id.

Brown is central to a consistent line of authority in this Court’s jurisprudence

that parents are the final arbiters of their children’s upbringing. That parents should be

able to make disciplinary decisions for their own children “is basic in the structure of

our society.” Ginsberg v. New York, 390 U.S. 629, 639 (1968). This Court has granted

parents the right to choose whether to send their children to public school, the right to

expose their children to new ideas, languages, and cultures, even if those principles

might conflict with those of normative society, and the right to choose which adults have

influence in and access to their children’s lives. See Pierce v. Society of the Sisters of the

Holy Names of Jesus and Mary, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390

(1923); Troxel v. Granville, 530 U.S. 57 (2000).

Brown would be a tiny shadow of its former self if the Court were to create a new

unprotected category of students’ off-campus speech. It simply cannot be true that on

Monday, children could exercise their constitutional right to purchase violent video

games on their own — perhaps even video games depicting violent acts against other

children or authority figures; on Tuesday, play those violent video games by themselves

or with friends; and then on Wednesday, suffer potential consequences of suspension if

a school official decides something they said while they were playing that game was

“threatening, intimidating, or harassing.” To hold otherwise would make real the

“dangerous fiction . . . that parents simply delegate their authority — including their

authority to determine what their children may say and hear — to public school

authorities.” Morse, 551 U.S. at 424 (Alito, J., concurring).

2. Bell’s song does not fall into any of the few limited

categories of unprotected speech.

Moreover, Bell’s speech does not fall into any of the traditional categories of

unprotected speech. It did not constitute “fighting words” because Bell did not make

face-to-face insults, inciting action. See Brandenburg, 395 U.S. at 449. It was not

obscene because it did not portray sexual conduct “in a patently offensive way.” See

Miller v. California, 413 U.S. 15, 20 (1973). And, it did not incite others to commit

imminent lawless action. See Hess v. Indiana, 414 U.S. 105, 108 (1973) (holding that

even statements intended to provoke criminal behavior at an undefined future date do

not fall under the narrow First Amendment exception of incitement).

B. Restricting Student Speech On-Campus or at School Events is

at the “Far Reaches of What the First Amendment Permits.”

Because the school district cannot argue that Bell’s speech falls under one of the

limited categories of unprotected speech, it asks this Court to adopt a sweeping

extension of the Court’s jurisprudence with respect to off-campus speech. This Court has

not previously extended the school’s prerogative to restrict speech beyond the school

environment or school-sponsored events. And it need not do so here.

Under the school district’s framework, this Court would be forced to upend

decades of settled law and enshrine a new rule that has no identifiable end point, would

chill students’ off-campus speech, including claims of teacher misconduct, and open the

floodgates to a slew of new student speech cases. For if the school district position is

accepted as tenable, a school can discipline a student for any off-campus speech that a

school official decides is threatening, intimidating or harassing — even if it was in fact

completely innocuous or made in jest — and that the school believes might one day

cause a disruption to the school. It would not matter whether the statement was made in

the privacy of the student’s home, at a birthday party with friends, or in a newspaper

editorial. Perhaps most disturbing, the school would be allowed to restrict off-campus

speech even if the speaker never uttered a word about it on-campus and it was instead

someone else – even a teacher or principal – who brought the speech to the school’s

attention. If the Court adopted this framework, Tinker would be but a distant memory

in this Court’s jurisprudence.

1. The Tinker Standard, Allowing Schools to Restrict Speech

On-Campus, was Not Meant to Apply Off-Campus.

In Tinker, during a historic period of social upheaval and student protest against

the Vietnam War, this Court held that schools could not restrict students who wished to

engage in protest against the war. Tinker v. Des Moines Indep. School Dist., 393 U.S.

503, 514 (1969). In holding that the students could wear black armbands in support of a

truce, this Court warned that “state-operated schools may not be enclaves of

totalitarianism . . . [and] do not possess absolute authority over their students.” Id. at

511. The Court embraced schools as platforms to cultivate the next generation of leaders

through a “marketplace of ideas . . . rather than through any kind of authoritative

selection.” Id. at 512 (internal quotations omitted).

This Court stressed, however, that the right to free speech on-campus may be

subject to limits which recognize the “special characteristics of the school environment.”

Id. at 507. As a result, schools are allowed to restrict on-campus speech when they can

reasonably forecast that the speech will cause a “substantial disruption of or material

interference with school activities.” Id. at 514.

But this Court was careful to stress that its chief concern was speech occurring

inside classroom environments. The majority was unconcerned that the students’

speech outside the classroom, in the cafeteria, in the hallways, or on the playing field

“during authorized [school] hours” had “caused discussion.” Id. at 512-14. Because there

was no interference inside the classroom, the majority was comfortable in allowing the

students to engage in their protest. Id. at 514.

Tinker’s chief focus on the classroom is illuminating. According to the majority,

students have the least latitude in engaging in disruptive speech while in the classroom

environment. But even outside the classroom, while still on-campus, students have

greater latitude in engaging in their own speech. Given the Court’s careful tailoring of

the Tinker standard to focus on limiting classroom speech but granting more latitude

outside the classroom, it bends Tinker beyond recognition to suggest that the majority

considered its “substantial disruption” standard to apply off-campus. Indeed, the

majority explicitly stated that its decision was made “to prescribe and control conduct in

the schools.” Id. at 507. When the majority asserted that students do not “shed their

constitutional right[] to freedom of speech . . . at the schoolhouse gate,” it did not mean

to suggest that students lose their freedom to speak when they walk back out of the

schoolhouse gate on their way home.

2. Subsequent Case Law Reaffirms that Tinker Does Not

Reach Off-Campus Speech.

While this Court has refined the Tinker doctrine in subsequent student speech

cases, it has retained Tinker’s central facet: the school’s right to restrict student speech

does not extend beyond in-school speech or at a school-sponsored event.

In Bethel School District v. Fraser, the Court upheld the right of a school to

restrict a student’s “lewd and indecent” speech at an on-campus school assembly. 403

U.S. 675, 677, 683 (1986). In nominating a fellow student for a student government

position, the speaker “referred to [the] candidate in terms of an elaborate, graphic, and

explicit sexual metaphor.” Id. at 677-78. Before delivering the speech, he delivered

copies to several teachers, who all warned him against the use of “sexual innuendo.” Id.

at 678. Specifically, the student referred to his classmate as “firm in his pants,” “a man

who takes his point and pounds it in,” and “a man who will go to the . . . climax for each

and every one of you.” Id. at 687 (Brennan, J., concurring). The majority described the

speech as “plainly offensive” and “acutely insulting to teenage girl students.” Id. at 683.

In particular, some students may have felt intimidated by the speech, as some were

“bewildered” and witnessed the audience mimicking the actions depicted in the speech.

Id. at 683-84.

Still, the Court held that the speech could be limited because it took place inside

the school environment. The Court held that the same latitude given to adults to make

lewd speech outside of school need not be given “to children in a public school.” Id. at

682 (emphasis added). The majority clarified that it viewed “[t]he determination of

what manner of speech in the classroom or in school assembly is inappropriate” as the

defining issue in the case. Id. at 683.

Thus, one might view Fraser as an extension of Tinker. But it is a limited one.

Fraser extended Tinker from the classroom to the school assembly room and from

protest speech to lewd speech. But it did not grant latitude to the school to restrict

speech outside of the school walls.

Then, in Hazelwood School District v. Kuhlmeier, this Court held that the school

was justified in refusing to publish students’ articles about pregnancy and divorce in the

school newspaper. 484 U.S. 260, 263, 266 (1988). Applying Tinker, the majority held

that schools had a degree of latitude in restricting speech in “school-sponsored

publications, theatrical publications, and other expressive activities.” Id. at 271. The

majority rationalized that a school may “set high standards for student speech that is

disseminated under its auspices.” Id. at 271-72. In doing so, the Court clarified that

Tinker applies to school-sponsored activities that “bear the imprimatur of the school.”

Id. at 271. The majority offered a strict definition for imprimatur: the activity may bear

the imprimatur of the school only when it is “supervised by faculty members and

designed to impart particular knowledge or skills to student participants and

audiences.” Id.

Again, in Hazelwood, the Court modified Tinker on the margins. It extended the

substantial disruption test to cases in which students were participating in school-

sponsored activities. But by citing a narrow definition for school-sponsored activities,

the majority was careful to keep Tinker’s reach within the bounds of the school itself.

Nowhere in Hazelwood does this Court suggest that the imprimatur of the school would

extend to a student’s reference to the school off-campus; that would be far beyond the

definition of imprimatur offered by the Court.

Finally, this Court held in Morse v. Frederick that a school may restrict student

speech at a school-sponsored, school-sanctioned, and school-supervised event. 551 U.S.

393, 396 (2007). At a school-sponsored sporting event during school hours, one

student unfurled a banner which the school principal believed was encouraging students

to engage in illicit drug use. Id. at 398. Attempting to minimize the reach of the

message, she told the student to take the banner down. Id. The majority found

compelling that “principals have a difficult job and a vitally important . . . and [the

principal in this case] had to decide to act . . . on the spot.” Id. at 409-10.

Morse is particularly instructive here because the Court, more than in any prior

student speech case, sought to entrench Tinker as an on-campus speech case. As with

other student speech cases post-Tinker, the Court highlighted that the event took place

“during normal school hours” and that the event was sanctioned by the principal. Id. at

400. But in Morse, the majority went further. Revisiting the lewd, sexualized speech

delivered by the student in Fraser, the Court stated that “[h]ad Fraser delivered the

same speech in a public forum outside the school context, it would have been protected.”

Id. at 405 (emphasis added).

Moreover, in his concurrence, Justice Alito explained that Morse represented

“the far reaches of what the First Amendment protects.” Id. at 425 (Alito, J.,

concurring). Justice Alito warned that Morse “[did not] endorse the broad argument . . .

that the First Amendment permits public school officials to censor any speech that

interferes with the school’s educational mission.” Id. at 423. In reaching this conclusion,

Justice Alito emphatically closed the door on further expansion of Tinker and explicitly

stated that Morse should not be read to suggest that “there are necessarily any grounds

for such regulation that are not already recognized in the holdings of this Court.” Id. at

422 (citing Fraser, 475 U.S. 675; Hazelwood, 484 U.S. 460).

Here, Bell did not ever attempt to speak about the misconduct allegations on-

campus nor did he ever bring his song on-campus. R. at 98a. He did not seek to hold a

press conference on school property, use school resources to create his song, skip class

so he could create his song on school time, promote his song on-campus, or otherwise

affiliate his speech with the school. See R. at 130a. In creating his song off-campus, Bell

functioned as a private citizen would, and he commented on the allegation like any

interested observer would have.

Bell’s speech does not align with any of the school speech cases in which this

Court held that the school could restrict speech. He did not make a speech at a school

assembly using lewd and vulgar language. See Fraser, 403 U.S. at 677. He did not ask

the school newspaper to publish a column about the sexual misconduct allegations. See

Hazelwood, 484 U.S. at 263. And he did not launch a protest and unfurl a banner at a

school-sponsored event. See Morse, 551 U.S. at 396. In fact, Bell took absolutely no

action on campus.

Most importantly, this Court already gave Bell the protection he needs to write

and publish his song off-campus. This Court held in Morse that speech which would be

disruptive and unacceptable on-campus is perfectly acceptable if it occurs off-campus.

Id. at 405. Morse recalled that the student in Fraser delivered a speech which

embarrassed and bewildered fellow students. See Fraser, 403 U.S. at 683. The Court

implied that female students may have even felt intimidated or harassed by the speech,

or a school principal could perceive such results. See id. But still, this Court said the

First Amendment would have protected that exact same speech in an off-campus forum.

According to the majority in Morse, the student could have named his fellow student,

made the same sexual innuendo, and with other high school students perhaps even

present. And the First Amendment would give him that right. See Morse, 551 U.S. at

405.

Therefore, Morse dictates that Bell’s speech be protected by the First

Amendment, as it was akin to the student in Fraser delivering his speech off-campus.

///

3. Speech Appearing on the Internet is Not Subject to a

Higher Level of Scrutiny Than Non-Internet Speech

and is Afforded the Same First Amendment

Protections.

Bell’s speech is entitled to the same First Amendment protections, regardless of

whether it appeared on the Internet or not. On several occasions, this Court has been

invited to scrutinize and allow more restrictions on speech relating to the Internet and

new technological developments. It has repeatedly declined the invitation and should do

so again today.

In Brown, this Court rejected a ban on the sale of violent video games to minors,

even though new technology has made video games more life-like and violent than ever

before. 564 U.S. at 798, 805. Rejecting the state’s argument that new video games

“present special problems because they are interactive,” the majority held that minors

had encountered other forms of violent entertainment for generations. Id. at 795-86.

From violent fairy tales, often depicting kidnapping or murder, to run-of-the-mill

Saturday morning cartoons, the Court described how technology has changed the

method of delivery for violent entertainment, but not the underlying ideas. Id. at 796-

800. In opting to maintain established First Amendment principles and declining to

scrutinize technologically-enabled speech differently, this Court signaled its preference

for stable Constitutional frameworks, rather than those which change with rapidly

changing technologies.

Similarly, in Reno v. American Civil Liberties Union, the Court declined to

depart from established First Amendment law in striking down a statute prohibiting

obscene communications through the Internet to someone under the age of 18. 521 U.S.

844, 885 (1997). Instead, the majority held that the statute was an unconstitutional

regulation of the content of speech and explicitly stated that “our cases provide no basis

for qualifying the level of First Amendment scrutiny that should be applied to [the

Internet].” Id. at 870. The Court distinguished the Internet from broadcast media,

which it had previously held should be subject to more significant government

supervision and regulation. Id. at 868-69. Unlike broadcast media, the Internet is not a

forum where users happen upon content accidentally. Id. The Court was also swayed by

the fact that the number of users on the Internet was growing rapidly and implied that it

would be a drastic undertaking to monitor and regulate Internet speech. See id. at 870.

Since the Reno decision, that number has grown exponentially, making the majority’s

rationale that much stronger today. See Hien Timothy N. Nguyen, Cloud Cover: Privacy

Protections and the Stored Communications Act in the Age of Cloud Computing, 86

Notre Dame L. Rev. 2189, 2204-05, n.103 (2011) (finding that over 75 million American

households had access to the Internet in 2009).

Here, Bell’s song should not be subject to more rigorous scrutiny, just because he

happened to post it to the Internet. As the majority cautioned in Reno, it would be an

incredible exercise of judicial overreach to patrol and restrict anything that a student

says on social media, that might be construed as contributing to a disruption in the

school environment. See Reno, 521 U.S. at 870. If this Court allows schools to constantly

police students’ social media accounts, debates about seemingly innocuous subjects —

everything from immature discussions about high school drama, to unrefined and

carelessly worded taunts or threats about prom dates — could open students up to

disciplinary action.

Moreover, as in Brown, where this Court equated life-like and interactive violent

video games with other traditional forms of violent entertainment, here social media

functions in the same way as other traditional methods of student communication. See

Brown, 564 U.S. at 796-800. Social media serves as another medium for students to

have conversations that they would otherwise have on their walk home from school, out

at a concert with friends, or in the privacy of each other’s living rooms. One need only

set off a rumor in a high school cafeteria and watch how quickly it spreads to notice that

Twitter and Facebook are just the modern-day equivalents of passing notes in class or

the traditional teenage rumor mill.

Also, just as with other forms of entertainment like violent books, fairytales, or

cartoons, it is the domain of parents, in consultation with their children, to decide what

access their children should have to social media and the Internet. See Brown, 564 U.S.

at 804. Here, the school has already acted within its own domain by restricting students’

access to social media sites such as Facebook on school computers and banning

cellphones from being used at school. R. at 98a, 122a. Because the Internet is not as

obtrusive as broadcast media, in that it is easier to self-direct searches and activity to

acceptable domains, the school district need not usurp parents’ discretion to decide

what their children are saying and doing on social media, on their own time, in their

own homes. See Reno, 521 U.S. at 868-69.

4. That Bell Expected the School Community Might Hear

His Song is Not Sufficient to Satisfy Tinker.

The Fifth Circuit, sitting en banc, concocted an additional way to apply the Tinker

standard to off-campus speech: whether the speaker intended for his speech to reach the

school community. R. at 2a. This test has no roots in this Court’s jurisprudence; whether

the speaker intended to reach or influence the school community has not been a decisive

factor in other school-speech cases.

In Tinker, it was clear that the student protestors had an objective to influence

their classmates about the Vietnam War. Given that the Vietnam War was “the public

concern of its day,” and that the students themselves might well have known soldiers

who had served and died in Vietnam, it is obvious that the Tinker students meant to

spark a conversation with their protest. R. at 43a; Tinker, 393 U.S. at 504. This Court,

however, overlooked the students’ intentions to determine whether the students

retained their First Amendment rights. See id. at 513. Setting aside their intentions, the

Court upheld their right to protest in school because it did not affect the in-class

learning environment. Id.

Likewise, in Fraser and Morse, the decisive factor in restricting the speech of

students in those cases was not that they all intended to reach the school, but that they

substantially disturbed the learning environment in doing so. The Court did not discuss

in Morse that the student intended to unfurl the pr0-drug banner at the school event,

but that it could cause a disruption of the school’s educational mission. See Morse, 551

U.S. at 405. Similarly, in Fraser, the Court did not discuss that the student intended for

his sexualized speech to reach the student body, but that it caused great offense and

disruption at the school assembly. See Fraser, 478 U.S. at 683.

Here, Bell does not dispute that his intent was to spark a conversation of sexual

misconduct, like it was the intent of the Tinker students to spark a conversation about

the Vietnam War. R. at 124a; Tinker, 393 U.S. at 504. Indeed, Bell intended to spark an

even less intrusive conversation than the Tinker students, since he never once spoke

about or played his song at school. R. at 98a. That Bell intended to have some indirect

effect on the school community is not sufficient to restrict Bell’s speech.

Given that Bell’s “intent” to reach the school community is not, by itself,

sufficient to restrict his speech, it must at the very least be applied in conjunction with

the notion that the speech was threatening, intimidating, or harassing. In other words, if

the school district’s framework is to be accepted, it must prove that Bell intended not

only to reach the school community, but intended to intimidate, threaten, or harass the

school community. Bell has repeatedly testified that his subjective intent was not to

intimidate or threaten the coaches. R. at 124a. Moreover, as discussed further below, the

school itself and the coaches did not construe his speech to be threatening, when it was

first presented to them. R. at 97a, 125a.

Moreover, because the school district accepts that Bell’s intent was to reach the

school community in order to spark a conversation about the sexual misconduct, Bell’s

intent bolsters his case that he is to receive heightened protection for his speech. As

discussed below, this fact aids Bell in arguing that he was speaking on a matter of public

concern.

5. A Jury Should Decide Whether Bell’s Rap Could be

Considered Threatening, Especially Since the School

District Itself Thought it was a Close Question

As discussed further below, this Court need not hold that the school district could

restrict Bell’s speech, unless the school can shoulder the heavy burden of proving that

Bell posed a “true threat” to the school environment. But even if this Court holds that

Tinker does apply, there is a genuine dispute of material fact whether Bell’s speech

could have been perceived as “harassing, intimidating, or threatening.” It is the

prerogative of a jury to decide this close question of material fact, not the Court. See

Fed. R. Civ. Pro 56(a) (requiring the movant to show “that there is no genuine dispute as

to any material fact.”).

There are a multitude of ways that a jury could reach the conclusion that the

school did not perceive Bell’s speech or intimidating, harassing or intimidating. First,

Coach Rainey testified that he viewed the song as “just a rap,” and that he thought it was

best to just “let it go.” R. at 131a. Second, when the school first heard about the speech,

the school district did not act as though it was disturbed by the rap. To the contrary, the

school principal personally drove Bell home alone. R. at 97a. Third, even after the school

had known about the rap for several days, it let Bell come back to school and attend

morning classes. R. at 6a, 125a. When they finally decided to suspend him, they let him

spend the rest of the day unsupervised in the school commons. R. at 97a, 125a. At no

point did any school official make a call to law enforcement. R. at 97a. Fourth, even the

school district’s disciplinary committee had difficulty reaching a conclusion about the

nature of Bell’s speech. Members of the committee expressed concern about the

vulgarity of the speech and the choice of “bad words,” not the potentially threatening or

harassing nature of the speech. R. at 128a. The school district did not present evidence

that the coaches felt threatened by the song. R. at 128a.

Any reasonable member of a jury could question the school district’s contention

that they would found the speech to be a violation of school policy when not one

member of the administration indicated that they thought anyone was in immediate

danger. Instead, any reasonable member of a jury could conclude that the

administration agreed with Coach Rainey that Bell’s speech was “just a rap.” See R. at

131a.

Moreover, a jury could also be presented with expert testimony to better situate

Bell’s song within the context of rap music. In other cases, district courts have allowed

the testimony of expert witnesses who can provide juries with a framework for

interpreting rap music. For example, experts can testify that “rap is not meant to be . . .

taken literally, but merely metaphorically.” United States v. Harris, No. 8:12-CR-205-T-

17MAP, 2016 WL 4204633, at *3 (M.D. Fla. July 28, 2016). Of particular relevance to

Bell’s case is the notion “that rap lyrics are generally not based on a person’s actual

actions, but merely fabrications; lyrics that are attributed to a . . . rapper are wrongly

taken as true threats, as opposed to mere bluster.” Id; see also United States v. Wilson,

493 F. Supp. 2d 484, 486 (E.D.N.Y. 2006) (“Rap music lyrics are often based on

imagination and fantasy, rather than on reality.”). Others have suggested that expert

clarification about rap music is not only helpful but essential to developing “an

awareness and understanding of the complexity of the art form,” and its regular use of

“boasting, metaphor, collective knowledge, narrative, and role play.” Andrea L. Dennis,

Poetic (in)justice? Rap Music Lyrics As Art, Life, and Criminal Evidence, 31 Columb. J.

L. & Arts 1, 4 (2007). By understanding the complexities and subtleties of rap as artistry,

some courts have concluded that rap music is specifically protected by the First

Amendment. See, e.g., Luke Records, Inc. v. Navarro, 960 F.2d 134, 137 (11th Cir.

1992).

As an aspiring artist who has been writing lyrics for songs since he was a child,

Bell understands the complexities of rap music. R. at 116, n.3. Because he writes music

professionally and because his music conforms to the established conventions of rap

music, a jury could decide that Bell never intended for the music to be harassing,

intimidating, or threatening. At the very least, a more contextual discussion of rap music

creates a conflict between the school district’s and Bell’s interpretations of the lyrics that

should be resolved by a jury.

C. This Court Need Not Extend Tinker Because Schools Already

Have Ample Authority to Restrict Speech if it Constitutes a

“True Threat.”

If the school district had encountered a threat online toward students or staff that

the school believed constituted a legitimate threat, it would not need Tinker to take

action against the student. This Court’s established First Amendment exception for “true

threats” would provide everything the school would need to intervene and discipline the

student for uttering such a threat. If this Court maintains Tinker’s bounds at the “far

reaches of what the First Amendment permits” and does not engage in an

unprecedented extension to off-campus speech, it would do no harm to schools who

seek to patrol legitimate threats to their students. This Court does not need to make the

choice between free speech and student safety; it can protect both Bell’s speech and his

fellow classmates.

In Watts v. United States, this Court protected a protestor’s right to free speech

when he made a threat toward President Lyndon Johnson. 394 U.S. 705, 706 (1969).

The protestor was charged with “knowingly and willfully threatening the President”

when he chanted: “I have already received my draft classification . . . I am not going. If

they ever make me carry a rifle, the first man I want to get in my sights is L.B.J. They are

not going to make me kill my black brothers.” Id. But the Court made clear that “[w]hat

is a threat must be distinguished from what is constitutionally protected speech” and all

speech must be considered in the context of maintaining “a profound national

commitment to the principle that debate on public issues should be uninhibited, robust

and wideopen.” Id. at 707-08. Sometimes such speech is even “vehement, caustic, [and

may include] sharp attacks on government and public officials.” Id. The Court held that

the protestor was not guilty of the offense and was engaging in protected speech because

“political hyperbole” is part of a strong national debate. Id.

Here, just as the protestor in Watts engaged in political hyperbole to protest

President Johnson, Bell engaged in artistic hyperbole to draw attention to teacher

misconduct and the treatment of women. R. at 30a, 197a; see Watts, 394 U.S. at 708. In

order to contribute to a national debate about sensitive and disturbing subject matter,

Bell should be granted the same latitude as the Watts protestor to draw attention to his

cause in an artistic, and even inflammatory, way. See id. The same standard should

apply to Bell, as would apply to a parent or student at another school making the same

“threats.”

1. The School District Did Not Believe that Bell’s Song

Constituted a “True Threat.”’

It is undisputed that the school district must have discretion to act on immediate

threats to the school environment. If Bell had made a face-to-face threat to one of the

coaches, the Morse rationale of protecting school officials’ split second decisions, would

apply and allow the school to act. See Morse, 551 U.S. at 409-10. Schools need to have

the flexibility to react quickly to threats that are proximate to staff and students in time

and space. But that rationale dissipates as the potential threat is made off-campus and

outside of school hours. It dissipates even more as the school further investigates the

threat, without acting and without finding any indication that the threat was real.

In Bell’s case, the school district had several key opportunities to assess whether

the threat was legitimate and declined at each point to take the threat seriously. First,

the school had one entire week to evaluate the song during the inclement weather break,

after officials first told Bell that they had concerns. R. at 6a. During that time, the school

did not develop any additional indication that Bell’s threat was real, actionable, or even

plausible. He showed no signs of acting on his threat during the inclement weather

break and returned to school normally when the inclement weather break was over. R.

at 6a. The school even allowed him to stay in class for the morning when he returned.

He showed no signs of aggression, volatility, or anger. That same day, the school

summoned him to the office to suspend him but sent him to the school commons,

unsupervised, to remain for the rest of the day. Even after being told of a suspension, he

acted normally for the rest of the day; there was not even an inkling that he attempted to

leave the commons or otherwise engage with any staff or students. R. at 97a, 125a. Even

weeks later, having time to sit and digest the content of Bell’s speech, the board’s

disciplinary committee could not decide whether they considered the language to be

threatening. R. at 128a. At no point during the entire ordeal — from January 6th, when

the recording was posted to February 11th, when the school sent Bell’s mother a letter

detailing the suspension — did any official from the school or school board make a call

to law enforcement. R. at 97a.

The school simply did not view this as a “true threat.”

II. Even if Tinker Applies, Summary Judgment Was Improperly

Granted Because the School District Did Not “Reasonably

Forecast” a “Substantial Disruption” of School Activities.

Even if this Court holds that Tinker applies to off-campus speech, the school

district would still be required to shoulder the heavy burden of proving that Bell’s song

“might reasonably have led school authorities to forecast substantial disruption of or

material interference with school activities.” Tinker, 393 U.S. at 514. The school district

cannot meet this burden and, as a result, the Fifth Circuit improperly granted summary

judgment and should be reversed.

Tinker sets a high bar for schools seeking to prove that speech caused a

substantial disruption. The Court held that a school must tolerate speech that “deviates

from the views of another person [or speech that] may start an argument or cause a

disturbance” because “our Constitution says we must take the risk.” Id. at 508. The

Court asserted that “caus[ing] discussion outside of the classrooms, but no interference

with work and no disorder” was not a substantial disruption with school activities. Id. at

514.

It is important to be mindful of the context in which Tinker took place. The

Vietnam War was “the public concern of the day.” R. at 43a. If the substantial disruption

standard was relatively easy to satisfy, the school could have succeeded by forecasting a

potential massive disruption between pro-war students and the protesting students. It

even would have been reasonable to project a clash in the classrooms. But Tinker

required more than that: it required a showing of substantial disruption of the

classroom environment. Tinker, 393 U.S. at 514.

The school district cannot meet that standard. Of the purported disruptions

caused by Bell’s speech, none were substantial. And none were even caused by or

involved Bell. First, the one and only time the song was played on-campus was when

Coach Wildmon asked a student to play it for him on their cellphone, in contravention of

official school policy; Bell never played the song himself. R. at 98a. Notably, Wildmon

asked his students whether they had heard of the song. They had, but none had brought

it up with him, and none had caused any disruption even having been previously

exposed to the song and in the presence of Wildmon after hearing it. R. at 6a. Second,

the coaches claimed that it “disrupted” the way they dealt with students. But their cited

disruptions — reframing how they talk to students to ensure comments are not

“inappropriate,” avoiding staring at female students, and refraining from being “hands-

on” with female members of the track team — were all behaviors that the coaches should

have been engaging in as part of the normal course of their jobs as educators. R. at 98a,

131a.

Moreover, all of the purported “disruptions,” including the fact that Coach

Wildmon did not want his players following him to his car, were caused by the

revelation of the allegations themselves, not because Bell released a potentially

threatening song. The coaches’ feelings of discomfort all stemmed from the fact that it

had become well-known that they had sexually harassed the female players.

At a minimum, it is the job of the jury to consider whether these purported

“disruptions” meet Tinker’s high standard of substantial disruption.

III. Bell’s Speech Exposing the Sexual Misconduct of High School

Coaches Qualifies for Heightened First Amendment Protection,

Under the Public Concern Doctrine.

Bell’s speech was successful because it drew attention to the issue of sexual

misconduct. The school district is punishing Bell for speech that evoked emotion about a

particular issue, but it is precisely that type of speech which this Court has trumpeted

time and again under the public concern doctrine.

Among the most time-tested principles of this Court is the assertion that “[t]the

most stringent protection of free speech would not protect a man in falsely shouting fire

in a theatre and causing a panic.” Schneck v. United States, 249 U.S. 47, 52 (1919). But it

is also true that the First Amendment would certainly protect a man whose warning

caused extreme havoc, even chaos, if the fire was real. The First Amendment may “best

serve its high purpose when it induces a condition of unrest, creates dissatisfactions

with the conditions as they are, or even stirs people to anger. Cox v. Louisiana, 379 U.S.

536, 551-52 (1965).

This Court held the First Amendment offers special protection to speech that

“deals with matters of public concern”. Snyder v. Phelps, 562 U.S. 443, 453 (2011)

Matters of public concern “relat[e] to any matter of political, social, or other concern to

the community” and are in contrast to matters of private concern, such as “information

about a particular individual’s credit report” or “videos of an employee engag[ed] in

sexually explicit acts.” Id. at 453 (quoting Connick v. Myers, 461 U.S. 138, 146 (1983). In

deciding whether a matter is of public concern, courts look at three factors of the

speech: its content, form, and context. Id.

In Snyder v. Phelps, this Court upheld the petitioner’s right to picket a soldier’s

funeral, in protest of the United States’ “tolerance of sin,” under the public concern

doctrine. Id. at 461. The petitioner, Fred Phelps, was part of the Westboro Baptist

Church, which believes that the United States commits serious sins by accepting

homosexuality and allowing gay members of the military to serve openly. Id. at 448. At

the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq, Phelps

and other parishioners protested within 200 feet of the procession and carried signs

which stated: “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, and “God

Hates You.” Id.

In assessing the protest, the Court considered the content, form, and context of

the signs.

First, with respect to the content of the speech, the Court held that the “signs

plainly relate[d] to broad issues of interest to society at large. Id. at 454. The Court

expressed its view that the signs may not have been refined or in good taste, but they

were related to the “political and moral conduct of the United States and its citizens.” Id.

The majority also highlighted that even though Lance Corporal Synder and his family

may have been specific subjects and targets of the speech, the main thrust of the speech

related to issues of public concern. Id.

Second, with respect to the context of the speech, the Court held that the protest’s

location in a public place, near the procession of the funeral, weighed in favor of a

finding of public concern. Id. at 454-55. Again, the Court found unconvincing the fact

that the protest was directed at a private matter, the funeral of a U.S. Marine. Id. at 455.

Because the Church had previously protested in public places — such that it had become

a matter of routine — and because they protested from a public space for the funeral, it

was immaterial that the immediate subject was a private funeral. Id.

Finally, the form of the protest — signs with messages about public issues — also

militated in favor of applying the public concern doctrine. Id. The soldier’s family

argued that the Church exploited his son’s funeral to deliver their message. Id. The

Court also found this argument unconvincing. Id. at 456. The majority held that, while it

was clear that the protests had caused extreme emotional anguish for the soldier’s

family, the Church did not attempt to cause chaos at the funeral. Id. Rather, they

peacefully protested on public lands, which had the effect of raising the Church’s issue

profile. Id.

Here, Bell’s speech qualifies as a matter of public concern because he spoke on a

matter of public concern, in a public forum, and through a form — music — which has

historically been used to promote causes and protest issues.

First, the content of Bell’s speech was on a matter of public concern: sexual

misconduct. As in Snyder, where the protestors protested issues of national morality,

here Bell protested sexual misconduct, an important issue for the school community,

public schools in general, and broader society. R. at 124a; see Snyder, 562 U.S. at 454.

While Bell used his female friends as the main subjects of his speech, he spoke to the

broader issues of mistreatment in the school and greater community; he noted that he

was meaning to write about the issue “for a long time” and was moved by the fact that he

might have a daughter one day impacted by sexual misconduct. R. at 124a. As with

Snyder, where the vehicle for the protest was a soldier’s funeral, it is immaterial here

too that individuals may be the immediate subjects, because broader issues

predominate. See Snyder, 562 U.S. at 454. See also Karen J. Krogman, Protecting our

Children: Reforming Statutory Provisions to Address Reporting, Investigating, and

Disclosing Sexual Abuse in Public Schools, 2011 Mich. St. L. Rev. 1605, 1607-08 n.5

(2011) (citing that over 4.5 million Americans experience sexual misconduct at school

between Kindergarten and twelfth grade).

Second, the form of Bell’s speech — music — has historically been a forum of

public protest. This Court has viewed song lyrics as metaphorical and recognized their

value in sparking conversations. In particular, this Court asserted that “lyrics in songs

that are performed for an audience or sold in recorded form are unlikely to be

interpreted as a real threat to a real person.” Elonis v. United States, 135 S. Ct. 2001,

2016 (2015). Moreover, this Court has viewed the performance of music, especially

“[m]usic as a form of expression and communication,” to be a public display. Ward v.

Rock Against Racism, 491 U.S. 781, 790 (1989). Moreover, just as the public nature of

the protest was dispositive in Snyder, so too is the fact that Bell did not just make his

music privately, but shared it on publically available platforms. R. at 123a; see Snyder,

562 U.S. at 455.

Finally, the context of Bell’s speech is well-established: he sought to comment on

sexual harassment allegations in a public way, to draw attention to the allegations, and

to spark a conversation. R. at 58a. Notably, Bell remarked that the allegations were a

subject that “[he] just felt like [he] needed to address . . . [as] an artist [who] speak[s]

life experience.” R. at 58a. Because Bell’s speech was posted “[on] a public place on a

matter of public concern,” his speech qualifies for special protection under the public

concern doctrine.

CONCLUSION

For the foregoing reasons, Bell respectfully requests that this Court reverse the

judgment of the U.S. Court of Appeals for the Fifth Circuit and hold that his speech is

protected by the First Amendment.

Dated: February 8, 2017

Respectfully Submitted,

___________________________

JOSEPH A.M. PAZZANO

Counsel for Petitioner

/s/ Joseph A.M. Pazzano