After hearing that his female classmates were being sexually harassed by two coaches at his school, eighteen-year-old high school senior and aspiring rapper Taylor Bell recorded a rap song off-campus criticizing and arguably threatening harm to the coaches. When the high school's administrators found out, they suspended Bell. Bell subsequently filed suit, alleging a violation of his First Amendment right to free speech. These events and the subsequent years of civil litigation surrounding them highlight the murky state of student speech law. The reigning "substantial disruption" standard derived from Tinker v. Des Moines Community School District is too vague and outdated to protect either students or administrators when it comes to off-campus speech. Additionally, the case law governing when schools can punish student speech that originates off-campus remains unclear.
This Note highlights the lack of consensus among courts dealing with
student speech issues and urges courts to adopt a modified version of the
standard that Judge E. Grady Jolly of the Fifth Circuit proposed in his
concurring opinion in Bell v. Itawamba County School Board. To be effective, the Jolly standard must be clarified with regard to what constitutes an "actual threat." This Note further argues that clarifying these standards, in light of the ubiquity of social media and current alarming levels of school violence, is essential. The proposed standard would prohibit schools from punishing off-campus speech in most cases-except where the speech implicates a compelling school interest, such as maintaining safety on campus.
