Mary Beth Tinker has filed an amicus curiae (friend of the court) brief in Taylor Bell’s case now pending before the 5th Circuit Court of Appeals. This is the case in which Mr. Bell wrote and recorded a rap (Facebook and YouTube) accusing two coaches at his high school of sexual improprieties with students. Despite the pervasive vulgarity of the rap and its suggestions of violence against the coaches, the 5th Circuit panel that heard the case concluded that the rap was entitled to constitutional protection as an expression of free speech. The entire en banc Circuit Court will review that decision on May 12th.
Now, free speech icon Mary Beth Tinker has weighed in on the case. You may recall Ms. Tinker as the former 8th grader who started the whole fuss about students and the First Amendment by wearing a black armband to school in support of a Christmas truce in Vietnam. That was in 1965. Fifty years later Ms. Tinker is still rabble rousing. In 2013-14 she traveled 25,000 miles by bus and spoke to over 20,000 students on the “Tinker Tour.” The purpose was to provide a “real life civics lesson” to schools and communities.
I wonder if the Tinker Tour stopped in Itawamba, Mississippi, home of Taylor Bell.
The amicus brief was authored by Allyson Ho, Counsel of Record for Ms. Tinker, along with lawyers from the Liberty Institute. The Liberty Institute is the Plano-based advocacy group that has promoted the Texas Religious Freedom Restoration Act and supported the plaintiffs in the endless “candy cane” wars in Plano.
The brief refers to the “disturbing facts of this case.” It describes the rap as “filled with both vulgar language and violent imagery.” The rap at issue in the case is characterized as “odious.” The brief carefully avoids encouraging the Court to rule in favor of Mr. Bell. Its primary emphasis is to encourage the Court not to do anything to suppress student free speech that is politically or religiously motivated. The brief urges the Court to make “a narrow ruling on grounds entirely separate and apart from Tinker to avoid inadvertently undermining any form of legitimate student speech, particularly religious and political speech.”
Lots of people are interested in this case. It presents the 5th Circuit a wonderful opportunity to address the continuing relevance of the on campus vs. off campus distinction in the era of social media. Mr. Bell won the first round based in part on the fact that the rap was supposedly never played at the school. After all, cell phones were prohibited by school policy. You know how well that works.
The Dawg will continue to monitor this case. Stay tuned.
DAWG BONE: SHOWDOWN AT THE 5TH CIRCUIT ON MAY 12TH. DON’T MISS IT.