For Whom the Bell Tolls: Bell v. Itawamba Targets Rap Music and Students' Free Speech Rights

• Publication year: 2022

For Whom the Bell Tolls: Bell v. Itawamba Targets Rap Music and Students' Free Speech Rights

Kevin Scot Johns

FOR WHOM THE BELL TOLLS: BELL V. ITAWAMBA TARGETS RAP MUSIC AND STUDENTS' FREE SPEECH RIGHTS

Abstract

In the Fifth Circuit Court of Appeals case Bell v. Itawamba, student free speech rights, a vigilantly protected constitutional freedom, came to clash with rap music, an art form viciously misunderstood by much of America. The distaste for rap ultimately won out—the court crafted a new, more restrictive student free speech doctrine to render the rap lyrics in question, which were produced and published off the school's campus, regulable by the school board. This ruling is legally noteworthy because it dramatically augments school boards' authority to regulate student expression, even when such expression does not take place at school. On a deeper level, the case is also culturally significant in demonstrating how the denigration of rap music has weaponized this art form against its own creators, effectively criminalizing their creativity.

This Comment offers a critical assessment of Bell v. Itawamba. It begins with an in-depth history of rap music, chronicling rap's origins as a language of liberation rooted in the Civil Rights and Black Power Movements; its eventual monetization, commercialization, and co-optation; and its current criminalization in public schools. After discussing the existing Supreme Court student free speech framework, this Comment shows how Bell ignored, side-stepped, and sometimes downright contradicted precedent to uphold a more restrictive student free speech framework that disparages the social utility and value of rap music. Finally, this Comment argues for the express adoption of a "true threat" standard for student free speech, a standard that strikes the proper balance between pedagogical concerns and students' free speech rights while diminishing the educational and social harms that currently disproportionately affect Black students on account of rap's de facto illegality in the public school context.

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Introduction...........................................................................................1321

I. The History Behind a Misunderstood Art Form...................1327

A. The Birth of Hip Hop: The Civil Rights and Black Power Movements.............................................................................. 1328
B. The Birth of Hip Hop: "The Worst Neighborhood in America" ................................................................................ 1332
C. Hip Hop as an Alternative to Gang Violence ......................... 1334
D. The Birth of Rap Music........................................................... 1335
E. The Monetization of Rap Music.............................................. 1337
F. The Perversion and Criminalization of Rap Music ................ 1339

II. The Existing School Speech Framework................................1341

A. Regulating Free Speech in School: Tinker Begins the Framework ............................................................................. 1342
B. Toying with Tinker: The Supreme Court Chips Away at the "Substantial Disruption" Standard ........................................ 1343
C. Expanding Upon the "Substantial Disruption" Standard: The "True Threat" Test.......................................................... 1347
D. The Expanding Conception of What Constitutes School Speech: Tinker Enters the Age of Internet.............................. 1348

III. Bell v. Itawamba: Rap's Denigration Rings In A New Regime of Restrictive Student Speech Regulation..............1350

A. Bell: En Banc Review Leads to More Questions than Answers .................................................................................. 1352
B. The Many Errors Underlying Bell.......................................... 1354

1. A Literal Interpretation of Rap Music Leaves It Without First Amendment Protections ........................................... 1354
2. Ignoring Context and Abandoning Supreme Court Precedent .......................................................................... 1357
3. A Misguided Intent Analysis Renders the Internet Inside the Schoolhouse Gates ...................................................... 1359

C. Bell: A Bleak Bellwether of What's to Come.......................... 1360
D. Mahanoy: Staving Off the Assault? ........................................ 1361

IV. Recommendations: Reverting to the "True Threat" Test for Rightful and Well-Reasoned Regulation......................1363

Conclusion...............................................................................................1363

Introduction

Over winter break in December 2010, eighteen-year-old Taylor Bell, a senior at Itawamba Agricultural High School and an aspiring rapper, created "a

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rap song criticizing, with vulgar and violent lyrics, two named male athletic coaches for sexually harassing female students at his school."¹ Bell was told of this harassment by several of his classmates, four of whom later provided affidavits testifying to the events.² Bell did not believe that the school would act if he reported these incidents, and, recognizing the power of rap music to inspire positive change, he followed in the footsteps of so many rappers before him by choosing to put the transgressions to a song.³ Bell recorded the song during Christmas break at a professional studio off-campus and unaffiliated with the school;⁴ he then published the recording to his own Facebook page in early January 2011, using his personal computer while off-campus and during non-school hours.⁵ The song included several instances of "threatening, harassing, and intimidating language" directed at the coaches:

(1) 'betta watch your back / I'm a serve this n****, 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 (4) 'middle fingers up if you want to cap that n**** / middle fingers up / he get no mercy n****'.⁶

But much of the song was about the coaches' transgressions against Bell's female peers:

The song accused [Coach] Wildmon of telling students that they are "sexy" and looking down female students' shirts, and it stated that he

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"better watch [his] back," and that "white dude, guess you got a thing for them yellow bones / looking down girls shirts / drool running down your mouth / you fucking with the wrong one / gonna get a pistol down your mouth." . . . The song referred to [Coach] Rainey as a second "Bobby Hill," a former Itawamba football coach who was arrested and accused of sending explicit text messages to a minor in 2009. The lyrics also accused Rainey of "rubbing [B]lack girls' ears in the gym."⁷

By composing his song in this manner, Bell not only believed that he could bring awareness to this legitimate concern about sexual harassment at his public school, but he also hoped to further his own career ambitions by producing a hit rap song.⁸ Instead, when Bell returned to school after the break, "he was removed from class by the Assistant Principal, who informed [Bell] that he was suspended effective immediately, pending a disciplinary hearing" regarding his rap song.⁹

In the hearing before his school's Disciplinary Committee, Bell maintained that the song "was a form of artistic expression meant to reflect his real-life experiences and to increase awareness of the situation" and that "the lyrics were not intended to intimidate, threaten, or harass Wildmon or Rainey."¹⁰ The school district did not agree. The Discipline Committee decided "to uphold the suspension already imposed on Bell, to place Bell in an alternative school for the remainder of the nine-week grading period, and to prohibit Bell from attending any school functions during that time," despite the fact that no evidence had been presented to the Committee either that "the song had caused or had been forecasted to cause a material or substantial disruption to the

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school's work or discipline" or that "the coaches themselves perceived the song as an actual threat or disruption."¹¹

Unfortunately, this result is no anomaly. Students around the country are facing suspensions and other disciplinary actions due to rap music, either on account of their own self-authored rap lyrics or because they sing or quote the lyrics of others.¹² This persecution in the education setting closely mirrors the treatment of rap music in our criminal justice system, where prosecutors have been using rap lyrics to help secure convictions with increasing success since the 1990s.¹³ In fact, because suspensions and referrals to alternative schools are hallmarks of the school-to-prison pipeline,¹⁴ rap and criminality—in classrooms and courtrooms alike—are far more closely related than they may seem.

Both the increasing use of rap lyrics in criminal proceedings and the current status quo of excluding students from school on account of rap music directly contribute to the disproportionate incarceration of Black individuals in the United States. The effect in the criminal context is plain to see—"[o]verwhelmingly, courts admit defendant-composed rap music lyrical evidence," and, with rap lyrics predominantly authored by Black individuals, convictions resulting from their admissibility lead to disproportionately more incarcerations for Black defendants.¹⁵ This effect is multiplied by the widespread and variable use of rap lyrics in criminal proceedings. For example, prosecutors have effectively used rap music videos in Racketeer Influenced and Corrupt Organizations Act (RICO) cases to prove defendants' participation in

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the alleged RICO enterprises.¹⁶ This tactic, made famous during the takedown of the American Mafia in New York City during the 1980s,¹⁷ now effectively puts individuals on notice that their mere...