Criminalizing Hip Hop

While at home after school in January 2011, Taylor Bell, then a senior at Itawamba Agricultural High School in Fulton, Mississippi, posted a rap song on Facebook (and later YouTube) to protest two gym coaches’ perverted behavior. The song was entitled “PS Koaches” or “PSK The Truth Needs To Be Told” (likely a nod to ’90s rapper Schoolly D’s “PSK What Does It Mean?”) and posted under the rap name “T-Bizzle.” If Bell was trying to get the teachers disciplined, he failed: instead, school officials suspended Bell and packed him off to an alternative school.

Instead of focusing its attention on the substantiated sexual harassment of female students, the school focused its attention on Bell’s language. Although violent language is common in the hip hop genre, administrators took offense at some of Bell’s violent lyrics. In response, the school sent him a message: while you are a student at an educational institution, your speech, at all times, belongs to the institution.

The day after Bell posted the song one coach’s wife sent the coach a text with a link. The next day administrators questioned Bell and sent him home. The school removed Bell pending a disciplinary hearing for allegedly threatening and intimidating the teachers named in the rap. Under the school’s policy, those offenses constituted a “severe disruption.”

The committee suspended Bell for an additional seven days and placed him in an alternative school for the remainder of the nine-weeks.

Bell filed an action claiming a denial of his free speech rights in a federal district court in Mississippi. The district court ruled for the school board. A panel of the Fifth Circuit, however, reversed and remanded, concluding that Bell’s rap song did not constitute a true threat. After rehearing by the full court, though, a new opinion for the first time extended the Supreme Court’s decision in Tinker v. Des Moines Independent County School District to apply to off-campus speech.

Tinker was a 1969 case in which an Iowa school suspended students for wearing black armbands to protest the Vietnam War. The Supreme Court held that the suspension violated students’ First Amendment rights because the armbands represented pure speech, separate from the students’ actions and conduct, and students did not lose their First Amendment rights when they set foot on school property.

In Tinker the Supreme Court defined a two-part test other courts have since followed to justify suppressing student speech. The test first asks whether the speech at issue caused a foreseeable material or substantial disruption. The Tinker test next asks whether the speech at issue interfered with the rights of others. In Tinker, the Court found the mere possibility of disruption was insufficient.

Tinker and other cases have held that speech on school campuses is subject to more controls than other types of speech—for good reasons. What Bell’s case held without precedent is that young people must make a choice between exercising their freedom of speech and belonging to an educational institution. Bell could either speak about a wrong he witnessed, or he could take part in the opportunities school offers—subject to the school’s 24/7 power over his words.

Bell had cause to be suspicious of administrators’ ability to address teacher misconduct and protect their students. The year before Bell posted the song, another coach had been arrested for sending sexual text messages to a female student.

Four students supported Bell with affidavits describing specific instances in which the gym teachers had harassed them. But the coaches claimed the song interfered with their teaching—despite that it was written off-campus, recorded off-campus and posted after school hours. The school district sided with the coaches.

After the full Fifth Circuit rejected his appeal, Bell petitioned the Supreme Court for review. An impressive crew of rappers and hip hop scholars filed a brief supporting his claim. On February 29th, the Supreme Court denied his petition.

Middle-aged white America’s inability to comprehend an art not its own has left Bell another casualty in its war on rap. Bell’s case recalls the criminal case of Elonis v. U.S., which the Supreme Court ruled on last year. In that case the defendant posted several rap lyrics on Facebook. The government alleged these constituted true threats against his wife and others. The Court declined to rule on the merits, instead remanding to the Third Circuit and instructing that a true threat required a mental state of intent greater than negligence.

The defendant in Elonis had also posted menacing words that were not rap lyrics, including directions to his wife’s house and locations of potential killing instruments. Bell’s alleged “threat,” however, was limited to one song. Also unlike Elonis, underscoring the performative and artistic nature of Bell’s words, Bell recorded his rap. Yet even though in an early line Bell states that “these lyrics going to hurt,” officials concluded that lines such as “I’m going to hit you with my Rueger” and “[you] going to get a pistol down your mouth” harassed and intimidated the coaches.

Such verbal weaponry forms hip hop’s hot and angry core where anyone can pop a figurative cap into the unredressed wicked. There is no evidence that Bell possessed a weapon or intended to cause any “hurt” beyond “these lyrics.” One coach testified that the song was “just a rap” and if he “let it go, it will probably just die down.”

Rap can be an alternative to actual violence, even when genre-typical gun imagery also plays a role. Rapper KRS-One (“The Teacha”)—who led hip hop’s late ’80s Stop The Violence Movement—appears with a gun on the cover of his first album. The genre relies on boasting and hypermasculine claims to physical power.

We do not believe Bob Marley “shot the sheriff.” Even when streetwise rappers such as 50 Cent claim they will “come and take your life away” (“Many Men”), we do not view their words as a threat.

By the same line—that demarcating art from reality—a reasonable listener should not believe a lyric such as “betta watch your back/ I’m a serve this nigga, like I serve the junkies with some crack” constitutes a threat. The lyric represents nothing more than that Bell is a talented young rapper (as one disciplinary committee member acknowledged).

In 1999 a psychologist conducted a study presenting a folk song about a murder, Kingston Trio’s “Bad Man’s Blunder,” as a rap song to one group and as a country song to another. The group believing the song was rap had a much more negative reaction. If ordinary people experience a different reaction to the same lyrics depending on whether they come from a white mouth or a brown mouth, we must rectify our own prejudices—not penalize the speakers subject to our irrational fears.

Karlanna Lewis

Karlanna Lewis , originally from Tallahassee, Florida, is a recent graduate of Yale Law School where she led a course on criminal law through the lens of hip hop. She is also an aspiring MC and plans to release her first mixtape soon. Follow her on twitter at @klannathebird.