Taylor Bell v. Itawamba County School Board ( 2015 )


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  •      Case: 12-60264   Document: 00513162565     Page: 1   Date Filed: 08/20/2015
    
    
    
    
            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                       Fifth Circuit
    
                                                                           FILED
                                                                       August 20, 2015
                                     No. 12-60264
                                                                        Lyle W. Cayce
                                                                             Clerk
    TAYLOR BELL; DORA BELL, individually and as mother of Taylor Bell,
    
                 Plaintiffs - Appellants
    
    v.
    
    ITAWAMBA COUNTY SCHOOL BOARD; TERESA MCNEECE,
    Superintendent of Education for Itawamba County, Individually and in her
    official capacity; TRAE WIYGUL, principal of Itawamba Agricultural High
    School, Individually and in his official capacity,
    
                 Defendants - Appellees
    
    
    
    
                    Appeal from the United States District Court
                      for the Northern District of Mississippi
    
    
    Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH,
    BARKSDALE,   DENNIS,    CLEMENT,    PRADO,    OWEN,   ELROD,
    SOUTHWICK, HAYNES, GRAVES, HIGGINSON and COSTA, Circuit
    Judges.
    
    RHESA HAWKINS BARKSDALE, Circuit Judge:
    
          Away from school or a school function and without using school resources
    (off-campus speech), Taylor Bell, a student at Itawamba Agricultural High
    School in Itawamba County, Mississippi, posted a rap recording containing
    threatening language against two high school teachers/coaches on the Internet
    (first on his publicly accessible Facebook profile page and then on YouTube),
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    intending it to reach the school community. In the recording, Bell names the
    two teachers and describes violent acts to be carried out against them.
    Interpreting the language as threatening, harassing, and intimidating the
    teachers, the Itawamba County School Board took disciplinary action against
    Bell.
            Bell claims being disciplined violated his First Amendment right to free
    speech. On cross-motions for summary judgment, the district court ruled, inter
    alia: the school board, as well as the school-district superintendent, Teresa
    McNeece, and the school principal, Trae Wiygul, acting in their official
    capacities (the school board), acted reasonably as a matter of law. Bell v.
    Itawamba Cnty. Sch. Bd., 
    859 F. Supp. 2d 834
     (N.D. Miss. 2012).
            Primarily at issue is whether, consistent with the requirements of the
    First Amendment, off-campus speech directed intentionally at the school
    community and reasonably understood by school officials to be threatening,
    harassing, and intimidating to a teacher satisfies the almost 50-year-old
    standard for restricting student speech, based on a reasonable forecast of a
    substantial disruption. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 
    393 U.S. 503
    , 514 (1969) (infringing otherwise-protected school speech requires
    “facts which might reasonably have led school authorities to forecast
    substantial disruption of or material interference with school activities”).
    Because that standard is satisfied in this instance, the summary judgment is
    AFFIRMED.
                                            I.
            On Wednesday, 5 January 2011, Bell, a high-school senior, posted a rap
    recording on his public Facebook profile page (and later on YouTube), using
    what appears to be a representation of a Native American as the rap
    recording’s cover image. (His high-school mascot is a Native American.) The
    
    
    
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    recording, in part, alleges misconduct against female students by Coaches W.
    and R.
          Although there are three different versions of the transcribed rap
    recording in the summary-judgment record, the school board stipulated, at the
    preliminary-injunction hearing for this action, to the accuracy of the following
    version provided by Bell, who refers to himself in the recording as “T-Bizzle”.
    (Accordingly, except for deleting part of both coaches’ names, the numerous
    spelling and grammatical errors in the following version are not noted.)
                Let me tell you a little story about these Itawamba
                coaches / dirty ass niggas like some fucking coacha
                roaches / started fucking with the white and know they
                fucking with the blacks / that pussy ass nigga W[.] got
                me turned up the fucking max /
    
                Fucking with the students and he just had a baby /
                ever since I met that cracker I knew that he was crazy
                / always talking shit cause he know I’m from daw-city
                / the reason he fucking around cause his wife ain’t got
                no tidies /
    
                This niggha telling students that they sexy, betta
                watch your back / I’m a serve this nigga, like I serve
                the junkies with some crack / Quit the damn basketball
                team / the coach a pervert / can’t stand the truth so to
                you these lyrics going to hurt
    
                What the hell was they thinking when they hired Mr.
                R[.] / dreadlock Bobby Hill the second / He the same
                see / Talking about you could have went pro to the NFL
                / Now you just another pervert coach, fat as hell /
                Talking about you gangsta / drive your mama’s PT
                Cruiser / Run up on T-Bizzle / I’m going to hit you with
                my rueger
    
                Think you got some game / cuz you fucking with some
                juveniles / you know this shit the truth so don’t you try
                to hide it now / Rubbing on the black girls ears in the
    
    
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               gym / white hoes, change your voice when you talk to
               them / I’m a dope runner, spot a junkie a mile away /
               came to football practice high / remember that day / I
               do / to me you a fool / 30 years old fucking with
               students at the school
    
               Hahahah / You’s a lame / and it’s a dam shame /
               instead you was lame / eat shit, the whole school got a
               ring mutherfucker
    
               Heard you textin number 25 / you want to get it on /
               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 / going
               to get a pistol down your mouth / Boww
    
               OMG / Took some girls in the locker room in PE / Cut
               off the lights / you motherfucking freak / Fucking with
               the youngins / because your pimpin game weak / How
               he get the head coach / I don’t really fucking know /
               But I still got a lot of love for my nigga Joe / And my
               nigga Makaveli / and my nigga codie / W[.] talk shit
               bitch don’t even know me
    
               Middle fingers up if you hate that nigga / Middle
               fingers up if you can’t stand that nigga / middle fingers
               up if you want to cap that nigga / middle fingers up /
               he get no mercy nigga
    (Emphasis added.)
         At the very least, this incredibly profane and vulgar rap recording had
    at least four instances of threatening, harassing, and intimidating language
    against the two coaches:
    
            1. “betta watch your back / I’m a serve this nigga, 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
    
    
    
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              4. “middle fingers up if you want to cap that nigga /
                 middle fingers up / he get no mercy nigga”.
    
    Bell’s use of “rueger” [sic] references a firearm manufactured by Sturm, Ruger
    & Co.; to “cap” someone is slang for “shoot”.
          A screenshot of Bell’s Facebook profile page, taken approximately 16
    hours after he posted the rap recording, shows his profile, including the rap
    recording, was open to, and viewable by, the public. In other words, anyone
    could listen to it.
          On Thursday, 6 January, the day after the recording was posted, Coach
    W. received a text message from his wife, informing him about the recording;
    she had learned about it from a friend. After asking a student about the
    recording, the coach listened to it at school on the student’s smartphone
    (providing access to the Internet). The coach immediately reported the rap
    recording to the school’s principal, Wiygul, who informed the school-district
    superintendent, McNeece.
          The next day, Friday, 7 January, Wiygul, McNeece, and the school-board
    attorney, Floyd, questioned Bell about the rap recording, including the veracity
    of the allegations, the extent of the alleged misconduct, and the identity of the
    students involved. Bell was then sent home for the remainder of the day.
          Because of inclement weather, the school was closed through Thursday,
    13 January. During Bell’s resulting time away from school, and despite his
    having spoken with school officials about his rap recording, including the
    accusations against the two coaches, Bell created a finalized version of the
    recording (adding commentary and a picture slideshow), and uploaded it to
    YouTube for public viewing.
          Bell returned to school when it reopened on Friday, 14 January; he was
    removed from class midday by the assistant principal and told he was
    suspended, pending a disciplinary-committee hearing. (He was permitted to
    
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    remain in the school commons until the school bus he rode arrived at the end
    of the day.) By letter that day to Bell’s mother, the superintendent informed
    her: Bell’s suspension would continue until further notification; and a hearing
    would be held to consider disciplinary action for Bell’s “alleged threatening
    intimidation and/or harassment of one or more school teachers”. The listed,
    possible basis for such action was consistent with the school district’s
    administrative disciplinary policy, which lists “[h]arassment, intimidation, or
    threatening other students and/or teachers” as a severe disruption.
          The   disciplinary-committee     hearing,     originally    scheduled     for
    Wednesday, 19 January, was delayed at Bell’s mother’s request; it was held on
    Wednesday, 26 January. Although there is no transcript of the hearing, it was
    recorded; that recording is in the summary-judgment record.          The hearing
    was facilitated by the school-board attorney, Floyd; three disciplinary-
    committee members were present, as well as the school principal and Bell, his
    mother, and their attorney.
          The hearing began with the principal’s providing a summary of events,
    after which the YouTube version of the rap recording was played. Among the
    disciplinary-committee members’ questions, one member asked Bell whether
    he had reported the alleged misconduct to school officials. Bell explained he
    had not done so because he believed they would ignore his complaints. Instead,
    he made the rap recording because he knew people were “gonna listen to it,
    somebody’s gonna listen to it”, acknowledging several times during the hearing
    that he posted the recording to Facebook because he knew it would be viewed
    and heard by students. Moreover, he explained that at least 2,000 people had
    contacted him about the rap recording in response to the Facebook and
    YouTube postings.
    
    
    
    
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          One of the committee members asked Bell why he had posted a new
    version of the rap recording on YouTube, after school officials had discussed
    with him his posting it on Facebook.         Bell gave a few (and somewhat
    conflicting) explanations: the Facebook version was a raw copy, so he wanted
    a finalized version on YouTube; the Facebook version was for his friends and
    “people locally” to hear, whereas the YouTube version was for music labels to
    hear; and he posted the YouTube version with a slideshow of pictures to help
    better explain the subject matter of the recording (his Facebook version only
    included a brief explanation of the backstory in the caption to the rap
    recording).
          Although Bell’s attorney, at one point, attempted to discuss the
    misconduct of the coaches alleged in the rap recording, the school-board
    attorney redirected the proceeding to its purpose: to resolve whether Bell
    threatened, harassed, and intimidated the teachers; and, to decide whether his
    suspension should be upheld.        In numerous instances, the school-board
    attorney emphasized this purpose, noting Bell’s “comments made [in the
    recording that] ‘you’ve f—ed with the wrong one / going to get a pistol down
    your mouth / POW’[,] those are threats to a teacher”.
          Bell contested the school-board attorney’s interpretation, responding:
    “Well that ain’t really what I said”; and then provided what he described as the
    written “original copy” of what had been recorded. (It is unclear from the
    disciplinary-committee-hearing recording, or other parts of the summary-
    judgment record, which copy Bell provided.) Bell explained he did not mean
    he was going to shoot anyone, but that he was only “foreshadowing something
    that might happen”.     (Emphasis added.)      But, he agreed that individuals
    “outside the school setting” had made “certain statements” to his mother that
    “‘put a pistol down your mouth’[,] that is a direct threat”.
    
    
    
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          Near the end of the disciplinary-committee hearing, Bell explained
    again: he put the recording on Facebook and YouTube knowing it was open to
    public viewing; part of his motivation was to “increase awareness of the
    situation”; and, although he did not think the coaches would hear the recording
    and did not intend it to be a threat, he knew students would listen to it, later
    stating “students all have Facebook”.
          On 27 January, the day after the hearing, the school-board attorney
    informed Bell’s mother by letter that:        the disciplinary committee had
    determined “the issue of whether or not lyrics published by Taylor Bell
    constituted threats to school district teachers was vague”, but that the
    publication of the recording constituted harassment and intimidation of two
    teachers, in violation of school-district policy and state law; as a result, the
    disciplinary committee recommended to the school board that Bell’s seven-day
    suspension be upheld and that he be placed in the county’s alternative school
    for the remainder of the nine-week grading period (approximately six weeks);
    Bell would not be “allowed to attend any school functions and [would] be
    subject to all rules imposed by the Alternative School”; and “[he would] be given
    time to make up any work missed while suspended or otherwise receive a 0,
    pursuant to Board policy”.
          After being informed of the disciplinary-committee’s recommendation,
    Bell’s attorney informed the school-board attorney, by 31 January telephone
    call, that:   Bell wished to appeal to the school board the disciplinary-
    committee’s recommendation; and, although Bell and his mother were
    expected to appear at the board meeting on 7 February, they would be without
    counsel because he was unable to attend due to a scheduling conflict.
          On 7 February, the school board, after being presented with a recitation
    of the recording, unanimously found:         Bell “threatened, harassed and
    
    
    
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    intimidated school employees”. (The only document in the record from the
    school-board meeting is the minutes, which state: “Chairman Tony Wallace
    entertained a motion by Clara Brown to accept the discipline recommendation
    of the Discipline Committee regarding student with MSIS #000252815
    (I.A.H.S.) and finding that this student threatened, harassed and intimidated
    school employees.     Wes Pitts seconded the motion.            Motion Carried
    Unanimously.”)    In other words, unlike the earlier-described disciplinary
    committee findings, which do not characterize the rap recording as threatening
    (instead, finding that point “vague”), the school board found Bell had not only
    harassed and intimidated the teachers, but had also threatened them.
          By 11 February letter to Bell’s mother, the school-board attorney
    explained the board’s findings:    “Bell did threaten, harass and intimidate
    school employees in violation of School Board policy and Mississippi State
    Law”. (Again, as stated in the written school-district policy, “[h]arassment,
    intimidation, or threatening other students and/or teachers” constitutes a
    severe disruption.)
          Approximately two weeks later, on 24 February, Bell and his mother
    filed this action, claiming, inter alia, the school board, superintendent, and
    principal (again, the school board) violated his First Amendment right to free
    speech. On 2 March, Bell requested a preliminary injunction, seeking his
    immediate reinstatement to his high school, including the reinstatement of “all
    privileges to which he was and may be entitled as if no disciplinary action had
    been imposed”, and all references to the incident being expunged from his
    school records.
          At the 10 March hearing for the requested injunction, Bell presented four
    affidavits from students at his school concerning alleged misconduct by the
    coaches.   (The affidavits, however, were not considered by the court.)        In
    
    
    
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    addition, Bell, his mother, school-board attorney Floyd, and Franklin (offered
    as an expert in rap music) were called as witnesses by Bell; superintendent
    McNeece and Coaches R. and W., by the school district.
          Bell testified about his making and disseminating the recording; the
    meaning behind certain statements in it; and the resulting events leading up
    to, and after, school officials disciplined him. Bell’s mother testified about her
    recollection of the events leading up to the disciplinary-committee and school-
    board hearings.     She testified the school principal never stated Bell was
    dangerous or threatening, and that Bell was told to stay in the school before
    suspending him.
          Floyd testified about her recollection of the events before, during, and
    after the disciplinary-committee and school-board hearings.          During her
    testimony, the court noted Bell’s contention that the rap recording addressed
    a matter of public concern. Floyd discussed the school-district policy Bell
    violated:   he threatened, harassed, and intimidated school employees;
    similarly, she testified that, at their respective hearings, the disciplinary
    committee and the school board discussed the possibility of disruption.
          Over the school-district’s objection, Franklin was permitted to testify as
    an expert. Characterizing the statements in Bell’s recording as nothing more
    than “colorful language” used to entice listeners and reflective of the norm
    among young rap artists, Franklin testified that it gave him no cause for
    concern. On cross-examination, however, he testified: if an individual’s name
    is used in a rap recording and precedes the words “[p]ut a pistol in your mouth
    and cap him”, “it would definitely be cause for a conversation with the young
    man, absolutely”.
          The superintendent testified:       she had attended the school-board
    meeting; there was a foreseeable danger of substantial disruption at the school
    
    
    
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    as a result of the rap recording; and, a written version of Bell’s rap recording
    was presented to the school board, before it adopted the disciplinary-
    committee’s recommendation for suspension and temporary placement in the
    alternative school.
          Both coaches identified in the rap recording testified that it adversely
    affected their work at the school.    Coach R. testified:      subsequent to the
    publication of the recording, students began spending more time in the gym,
    despite teachers’ telling them to remain in classrooms; and the recording
    affected him in the way he conducted himself around students, noting he would
    no longer work with female members of the track team, instead instructing
    males on the team on how to coach the females and then having the males do
    so. Coach W. testified he: interpreted the statements in the rap recording
    literally, after hearing it on a student’s smartphone at school; was “scared”,
    because “you never know in today’s society . . . what somebody means, [or] how
    they mean it”; and would not allow the members of the school basketball team
    he coached to leave after games until he was in his vehicle.
          After finding Bell’s last day attending the alternative school would be
    the next day, 11 March, the district court ruled whether to grant injunctive
    relief was moot. Accordingly, the requested injunction was denied.
          It does not appear that any discovery took place after the preliminary-
    injunction hearing. On 9 May, following a case-management conference, the
    magistrate judge entered an order stating: “it appears that there are no factual
    issues and that this case should be resolved by motions for summary
    judgment”; and the parties had 90 days to file those motions.
          Therefore, approximately three months later, the school board filed its
    summary-judgment motion on 1 August; Bell and his mother, on 5 August. On
    15 March 2012, the district court denied the Bells’ motion and granted the
    
    
    
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    school board’s.    In doing so, it concluded the rap recording constituted
    “harassment and intimidation of teachers and possible threats against
    teachers and threatened, harassed, and intimidated school employees”. Bell,
    859 F. Supp. 2d at 840 (internal quotation marks omitted). The court also
    concluded the rap recording “in fact caused a material and/or substantial
    disruption at school and . . . it was reasonably foreseeable to school officials the
    song would cause such a disruption”. Id. Moreover, the court concluded, inter
    alia: (1) the superintendent and principal were entitled to qualified immunity
    in their individual capacities; and (2) Bell’s mother could not show a violation
    of her Fourteenth Amendment rights (she claimed the school’s disciplining Bell
    violated her right to make decisions regarding the custody and care of her son).
    Id. at 841–42.
          On appeal, only the summary judgment against Bell’s First Amendment
    claim was challenged. A divided panel in December 2014 held, inter alia: the
    school board violated Bell’s First Amendment right by disciplining him based
    on the language in the rap recording. Bell v. Itawamba Cnty. Sch. Bd., 
    774 F.3d 280
    , 304–05 (5th Cir. 2014), reh’g en banc granted & opinion vacated, 
    782 F.3d 712
     (5th Cir. 2015). En-banc review was granted in February 2015.
                                            II.
          Because the summary judgment against Bell’s mother’s Fourteenth
    Amendment claim and for the school officials’ qualified-immunity claim was
    not contested on appeal, the only issue before our en-banc court is the summary
    judgment against Bell’s First Amendment claim. (The misconduct alleged by
    Bell against the two teachers is, of course, not at issue.)
          A summary judgment is reviewed de novo, applying the same standard
    as did the district court. E.g., Feist v. La., Dep’t of Justice, Office of the Att’y
    Gen., 
    730 F.3d 450
    , 452 (5th Cir. 2013). Summary judgment is proper when
    
    
    
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    “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). “A genuine dispute of
    fact exists when evidence is sufficient for a reasonable jury to return a verdict
    for the non-moving party, and a fact is material if it might affect the outcome
    of the suit.” Willis v. Cleco Corp., 
    749 F.3d 314
    , 317 (5th Cir. 2014) (citations
    and quotation marks omitted).
          In determining whether to grant summary judgment, the court, in its de
    novo review, views the evidence in the light most favorable to the nonmovant.
    E.g., Dameware Dev., L.L.C. v. Am. Gen. Life Ins. Co., 
    688 F.3d 203
    , 206–07
    (5th Cir. 2012). Consistent with that, on cross-motions for summary judgment,
    “we review [de novo] each party’s motion independently, viewing the evidence
    and inferences in the light most favorable to the nonmoving party”. Cooley v.
    Hous. Auth. of Slidell, 
    747 F.3d 295
    , 298 (5th Cir. 2014) (internal quotation
    marks omitted) (quoting Ford Motor Co. v. Tex. Dep’t of Transp., 
    264 F.3d 493
    ,
    498 (5th Cir. 2001)).
          The summary-judgment record at hand includes, inter alia: (1) the
    affidavits of four students regarding the coaches’ alleged misconduct; (2)
    screenshots of Bell’s Facebook page; (3) a transcription of the rap recording
    submitted by the school board; (4) a transcription of the recording submitted
    by Bell (stipulated version); (5) the letter from the superintendent to Bell’s
    mother, informing the Bells of a hearing before the disciplinary committee; (6)
    the digital recording of the rap recording; (7) the first screenshot of Bell’s
    Facebook “wall”; (8) the second screenshot of Bell’s Facebook “wall”; (9) the
    recording of the disciplinary-committee hearing; (10) the minutes of that
    hearing, containing the recommended disciplinary action; (11) the school-board
    attorney’s letter to Bell’s mother, informing her of the disciplinary committee’s
    findings and recommended discipline; (12) the school-board-hearing minutes;
    
    
    
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    (13) the school-district’s discipline policy; (14) the school-board attorney’s letter
    to Bell’s mother informing her of the school-board’s determination; and (15) the
    transcript of the preliminary-injunction hearing.
                                             A.
          Students qua students do not forfeit their First Amendment rights to
    freedom of speech and expression.        Tinker, 393 U.S. at 506, 511 (“School
    officials do not possess absolute authority over their students . . . . In the
    absence of a specific showing of constitutionally valid reasons to regulate their
    speech, students are entitled to freedom of expression of their views.”). On the
    other hand, the First Amendment does not provide students absolute rights to
    such freedoms, and those rights must be tempered in the light of a school
    official’s duty to, inter alia, “teach[] students the boundaries of socially
    appropriate behavior”, Bethel Sch. Dist. No. 403 v. Fraser, 
    478 U.S. 675
    , 681
    (1986), and “protect those entrusted to their care”, Morse v. Frederick, 
    551 U.S. 393
    , 408 (2007). As Justice Oliver Wendell Holmes, Jr., wrote nearly a century
    ago: “[T]he character of every act depends upon the circumstances in which it
    is done. The most stringent protection of free speech would not protect a man
    in falsely shouting fire in a theatre and causing a panic.” Schenck v. United
    States, 
    249 U.S. 47
    , 52 (1919) (citation omitted).        Therefore, because “the
    constitutional rights of students in public school are not automatically
    coextensive with the rights of adults in other settings”, Fraser, 478 U.S. at 682,
    certain speech, which would be protected in other settings, might not be
    afforded First Amendment protection in the school setting.
          Balancing these competing interests, Tinker provided in 1969 the
    standard for evaluating whether the First Amendment protects a student’s
    speech. There, the Court considered the suspension of students for wearing
    black armbands in protest against the Vietnam War. Tinker, 393 U.S. at 505–
    
    
    
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    14. In holding the students’ speech protected under the First Amendment, the
    Court, focusing primarily on the effect of that speech on the school community,
    held: A student “may express his opinions . . . if he does so without materially
    and substantially interfer[ing] with the requirements of appropriate discipline
    in the operation of the school and without colliding with the rights of others”.
    Id. at 513 (alteration in original) (emphasis added) (internal quotation marks
    omitted). Put another way, “conduct by the student, in class or out of it, which
    for any reason . . . materially disrupts classwork or involves substantial
    disorder or invasion of the rights of others is, of course, not immunized . . . ”.
    Id. (emphasis added). Approximately three years after Tinker, our court held
    this standard can be satisfied either by showing a disruption has occurred, or
    by showing “demonstrable factors that would give rise to any reasonable
    forecast by the school administration of ‘substantial and material’ disruption”.
    Shanley v. Ne. Indep. Sch. Dist., Bexar Cnty., Tex., 
    462 F.2d 960
    , 974 (5th Cir.
    1972) (emphasis added) (holding school’s suspension of students for their off-
    campus distribution of “underground” newspaper violated Tinker).
          Since Tinker, the Court has revisited student speech on several
    occasions, each time carving out narrow exceptions to the general Tinker
    standard based on certain characteristics, or content, of the speech. See, e.g.,
    Morse, 551 U.S. at 425 (Alito, J, concurring) (grave and unique threats to the
    physical safety of students, in particular, speech advocating illegal drug use);
    Hazelwood Sch. Dist. v. Kuhlmeier, 
    484 U.S. 260
    , 273 (1988) (school-sponsored
    speech); Fraser, 478 U.S. at 685 (lewd, vulgar, or indecent speech); see also
    Morgan v. Swanson, 
    659 F.3d 359
    , 374 (5th Cir. 2011) (en banc) (describing the
    Court’s holdings as “expand[ing] the kinds of speech schools can regulate . . . .
    to several broad categories of student speech” (internal quotation marks
    omitted)). In Fraser, the Court held the school board acted within its authority
    
    
    
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    when it disciplined a student for an “offensively lewd and indecent” speech
    delivered at a student assembly. 478 U.S. at 677–78, 685. In Hazelwood, the
    Court upheld a school’s right to “exercis[e] editorial control over the style and
    content of student speech” in a school-sponsored newspaper when the student
    engages in “expressive activities that students, parents, and members of the
    public might reasonably perceive to bear the imprimatur of the school” and the
    school officials’ “actions are reasonably related to legitimate pedagogical
    concerns”. 484 U.S. at 262, 271, 273.
            And, most recently in Morse, the Court considered whether a school
    infringed a student’s First Amendment right of free speech when it disciplined
    him for holding up a banner that stated “BONG HiTS 4 JESUS” at a school-
    sponsored event. 551 U.S. at 397–98. The Court, through Justice Alito’s
    controlling concurrence (joined by Justice Kennedy), held a school may
    discipline a student for speech which poses a “grave and . . . unique threat to
    the physical safety of students”, such as “advocating illegal drug use”. Id. at
    425.    (Justice Alito limited his “join[ing] the opinion of the Court on the
    understanding that the opinion does not hold that the special characteristics
    of the public schools necessarily justify any other speech restrictions”. Id. at
    423.)
            For these exceptions, schools are not required to prove the occurrence of
    an actual disruption or one that reasonably could have been forecast.
    Similarly, in Ponce v. Socorro Independent School District, our court extended
    the Morse exception to certain threats of school violence. 
    508 F.3d 765
    , 771–
    72 (5th Cir. 2007).     In response to a diary brought to school containing
    “terroristic threat[s]” mirroring recent mass school shootings, the school
    suspended the student. Id. at 767. On appeal, our court upheld the suspension
    as constitutional, extending Morse’s exception to speech “bearing the stamp of
    
    
    
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    . . . mass, systematic school-shootings” based on the “[l]ack of forewarning and
    the frequent setting within schools [which] give mass shootings the unique
    indicia that the concurring opinion [in Morse] found compelling with respect to
    drug use”. Id. at 771.
          In challenging the summary judgment, Bell claims the school board
    violated his First Amendment free-speech rights by temporarily suspending
    him and placing him in an alternative school for the six weeks remaining in
    the grading period. In support, he contends: Tinker does not apply to off-
    campus speech, such as his rap recording; and, even if it does, Tinker’s
    “substantial disruption” test is not satisfied. For the reasons that follow, we
    hold: Tinker applies to the off-campus speech at issue; there is no genuine
    dispute of material fact precluding ruling, as a matter of law, that a school
    official reasonably could find Bell’s rap recording threatened, harassed, and
    intimidated the two teachers; and a substantial disruption reasonably could
    have been forecast, as a matter of law.
                                           1.
          As our court explained in Morgan v. Swanson, student-speech claims are
    evaluated “in light of the special characteristics of the school environment,
    beginning by categorizing the student speech at issue”.        659 F.3d at 375
    (footnotes and internal quotation marks omitted).          We must thus decide
    whether Bell’s speech falls under Tinker, or one of the Court’s above-described
    exceptions. See, e.g., Saxe v. State Coll. Area Sch. Dist., 
    240 F.3d 200
    , 214 (3d
    Cir. 2001) (employing a similar approach, noting “[s]peech falling outside of
    . . . categories [such as those in Fraser and Hazelwood] is subject to Tinker’s
    general rule”).
          The parties do not assert, and the record does not show, that the school
    board disciplined Bell based on the lewdness of his speech or its potential
    
    
    
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    perceived sponsorship by the school; therefore, Fraser and Hazelwood are not
    directly on point. Bell’s speech likewise does not advocate illegal drug use or
    portend a Columbine-like mass, systematic school-shooting. And, as Justice
    Alito noted, when the type of violence threatened does not implicate “the
    special features of the school environment”, Tinker’s “substantial disruption”
    standard is the appropriate vehicle for analyzing such claims. Morse, 551 U.S.
    at 425 (citing Tinker, 393 U.S. at 508–09) (“[I]n most cases, Tinker’s
    ‘substantial disruption’ standard permits school officials to step in before
    actual violence erupts”.).   Although threats against, and harassment and
    intimidation of, teachers certainly pose a “grave . . . threat to the physical
    safety” of members of the school community, id., violence forecast by a student
    against a teacher does not reach the level of the above-described exceptions
    necessitating divergence from Tinker’s general rule. We therefore analyze
    Bell’s speech under Tinker. See Ponce, 508 F.3d at 771–72 & n.2 (“[B]ecause
    [threats of violence against individual teachers] are relatively discrete in scope
    and directed at adults, [they] do not amount to the heightened level of harm
    that was the focus of both the majority opinion and Justice Alito’s concurring
    opinion in Morse”.); see also Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch.
    Dist., 
    494 F.3d 34
    , 38 (2d Cir. 2007) (analyzing threats of violence to individual
    teachers under Tinker); Boim v. Fulton Cnty. Sch. Dist., 
    494 F.3d 978
    , 982–83
    (11th Cir. 2007) (same).
                                            2.
          In claiming Tinker does not apply to off-campus speech, Bell asserts:
    Tinker limits its holding to speech inside the “schoolhouse gate”; and each of
    the Court’s subsequent decisions reinforces this understanding.
          “Experience shows that schools can be places of special danger.” Morse,
    551 U.S. at 424 (Alito, J., concurring). Over 45 years ago, when Tinker was
    
    
    
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    decided, the Internet, cellphones, smartphones, and digital social media did
    not exist. The advent of these technologies and their sweeping adoption by
    students present new and evolving challenges for school administrators,
    confounding previously delineated boundaries of permissible regulations. See,
    e.g., Wynar v. Douglas Cnty. Sch. Dist., 
    728 F.3d 1062
    , 1064 (9th Cir. 2013)
    (“With the advent of the Internet and in the wake of school shootings at
    Columbine, Santee, Newtown and many others, school administrators face the
    daunting task of evaluating potential threats of violence and keeping their
    students safe without impinging on their constitutional rights.”). Students
    now have the ability to disseminate instantaneously and communicate widely
    from any location via the Internet.         These communications, which may
    reference events occurring, or to occur, at school, or be about members of the
    school community, can likewise be accessed anywhere, by anyone, at any time.
    Although, under other circumstances, such communications might be
    protected speech under the First Amendment, off-campus threats, harassment,
    and intimidation directed at teachers create a tension between a student’s free-
    speech rights and a school official’s duty to maintain discipline and protect the
    school community. These competing concerns, and differing standards applied
    to off-campus speech across circuits, as discussed infra, have drawn into
    question the scope of school officials’ authority. See Morse, 551 U.S. at 418
    (Thomas, J., concurring) (lamenting the Court’s failure to “offer an explanation
    of when [Tinker] operates and when it does not”, and noting: “I am afraid that
    our jurisprudence now says that students have a right to speak in schools
    except when they do not”).
          Greatly affecting this landscape is the recent rise in incidents of violence
    against school communities. See LaVine v. Blaine Sch. Dist., 
    257 F.3d 981
    , 987
    (9th Cir. 2001) (“[W]e live in a time when school violence is an unfortunate
    
    
    
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    reality that educators must confront on an all too frequent basis”.). School
    administrators must be vigilant and take seriously any statements by students
    resembling threats of violence, Ponce, 508 F.3d at 771, as well as harassment
    and intimidation posted online and made away from campus.             This now-
    tragically common violence increases the importance of clarifying the school’s
    authority to react to potential threats before violence erupts. See Morse, 551
    U.S. at 408 (pressing that dangerous speech, such as speech advocating drug
    use, is substantially different from the political speech at issue in Tinker,
    because it presents a “far more serious and palpable” danger than an
    “undifferentiated fear or apprehension of disturbance” or “a mere desire to
    avoid the discomfort and unpleasantness that always accompany an unpopular
    viewpoint” (citation and internal quotation marks omitted)); see also Ponce, 508
    F.3d at 772 (“School administrators must be permitted to react quickly and
    decisively to address a threat of physical violence . . . without worrying that
    they will have to face years of litigation second-guessing their judgment as to
    whether the threat posed a real risk of substantial disturbance.”).
          In the light of these competing interests and increasing concerns
    regarding school violence, it is necessary to establish the extent to which off-
    campus student speech may be restricted without offending the First
    Amendment. Our holding concerns the paramount need for school officials to
    be able to react quickly and efficiently to protect students and faculty from
    threats, intimidation, and harassment intentionally directed at the school
    community. See, e.g., Morse, 551 U.S. at 425 (Alito, J., concurring) (“[D]ue to
    the special features of the school environment, school officials must have
    greater authority to intervene before speech leads to violence.”); Lowery v.
    Euverard, 
    497 F.3d 584
    , 596 (6th Cir. 2007) (“School officials have an
    
    
    
    
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    affirmative duty to not only ameliorate the harmful effects of disruptions, but
    to prevent them from happening in the first place.”).
                                              a.
          Despite Bell’s recognizing the wealth of precedent across numerous
    circuits contrary to his position, he asserts: Tinker does not apply to speech
    which originated, and was disseminated, off-campus, without the use of school
    resources.    Bell’s position is untenable; it fails to account for evolving
    technological developments, and conflicts not only with our circuit’s precedent,
    but with that of every other circuit to have decided this issue.
          Since Tinker was decided in 1969, courts have been required to define its
    scope. As discussed below, of the six circuits to have addressed whether Tinker
    applies to off-campus speech, five, including our own, have held it does. (For
    the other of the six circuits (the third circuit), there is an intra-circuit split.
    See Layshock v. Hermitage Sch. Dist., 
    650 F.3d 205
    , 219–20 (3d Cir. 2011) (en
    banc) (Jordan, J., concurring) (discussing that Tinker’s applicability to off-
    campus speech remains unresolved in the third circuit); see also J.S. ex rel.
    Snyder v. Blue Mountain Sch. Dist., 
    650 F.3d 915
    , 931 & n.8 (3d Cir. 2011) (en
    banc) (divided court assuming, without deciding, that the Tinker substantial-
    disruption test applies to online speech harassing a school administrator).)
    The remainder of the circuits (first, sixth, seventh, tenth, eleventh, D.C.) do
    not appear to have addressed this issue.
          Although the Supreme Court has not expressly ruled on this issue, our
    court, 43 years ago, applied Tinker to analyze whether a school board’s actions
    were constitutional in disciplining students based on their off-campus speech.
    E.g., Shanley, 462 F.2d at 970 (“When the Burnside/Tinker standards are
    applied to this case . . . ”.); see also Sullivan v. Hous. Indep. Sch. Dist., 
    475 F.2d 1071
    , 1072 (5th Cir. 1973) (“This case arises from the unauthorized
    
    
    
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    distribution of an underground newspaper near a high school campus, and
    presents the now-familiar clash between claims of First Amendment protection
    on the one hand and the interests of school boards in maintaining an
    atmosphere in the public schools conducive to learning, on the other.”
    (emphasis added)); Wisniewski, 494 F.3d at 39 (interpreting Sullivan as
    applying Tinker to off-campus speech); Porter v. Ascension Parish Sch. Bd., 
    393 F.3d 608
    , 615 n.22, 619 n.40 (5th Cir. 2004) (same).
           In Shanley, students distributed newspapers containing articles they
    authored “during out-of-school hours, and without using any materials or
    facilities owned or operated by the school system”, “near but outside the school
    premises on the sidewalk of an adjoining street, separated from the school by
    a parking lot”. 462 F.2d at 964. In concluding the students’ speech was
    protected, our court ruled:    “[T]he activity punished here does not even
    approach the ‘material and substantial’ disruption . . . either in fact or in
    reasonable forecast [and] [a]s a factual matter . . . there were no disturbances
    of any sort, on or off campus, related to the distribution of the [newspaper]”.
    Id. at 970.
          Further, as noted supra, four other circuits have held that, under certain
    circumstances, Tinker applies to speech which originated, and was
    disseminated, off-campus. See, e.g., Wynar, 728 F.3d at 1069; D.J.M. ex rel.
    D.M. v. Hannibal Pub. Sch. Dist. No. 60, 
    647 F.3d 754
    , 766–67 (8th Cir. 2011);
    Kowalski v. Berkeley Cnty. Schs., 
    652 F.3d 565
    , 573–74 (4th Cir. 2011);
    Doninger v. Niehoff, 
    527 F.3d 41
    , 48–50 (2d Cir. 2008). Therefore, based on
    our court’s precedent and guided by that of our sister circuits, Tinker applies
    to off-campus speech in certain situations.
    
    
    
    
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                                           b.
          Therefore, the next question is under what circumstances may off-
    campus speech be restricted. Our court’s precedent is less developed in this
    regard. For the reasons that follow, and in the light of the summary-judgment
    record, we need not adopt a specific rule:          rather, Bell’s admittedly
    intentionally directing at the school community his rap recording containing
    threats to, and harassment and intimidation of, two teachers permits Tinker’s
    application in this instance.
                                           i.
          In 1972 in Shanley, our court expressly declined to adopt a rule holding
    a school’s attempt to regulate off-campus speech under Tinker was per se
    unconstitutional. 462 F.2d at 974. Our court explained: “[E]ach situation
    involving expression and discipline will create its own problems of
    reasonableness, and for that reason we do not endeavor here to erect any
    immovable rules, but only to sketch guidelines”. Id. Likewise, in 1973 in
    Sullivan, our court considered Tinker, but did not address any parameters for
    its application to off-campus speech. 475 F.2d at 1076–77.
          Our court’s far more recent, 2004 opinion in Porter, however, provides
    valuable insight in this regard. There, the school expelled a student after his
    brother brought to school a sketchpad containing a two-year-old drawing of the
    school’s being attacked by armed personnel. 393 F.3d at 611. The depiction,
    albeit violent in nature, “was completed [at] home, stored for two years, and
    never intended by [the creator of the drawing] to be brought to campus”. Id. at
    615 (emphasis added).      After concluding Tinker applied to the school’s
    regulations, our court held the speech was protected because the student never
    intended for the drawing to reach the school, describing its introduction to the
    school community as “accidental and unintentional”. Id. at 618, 620 (“Because
    
    
    
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    [the student’s] drawing was composed off-campus, displayed only to members
    of his own household, stored off-campus, and not purposefully taken by him to
    [school] or publicized in a way certain to result in its appearance at [school],
    we have found that the drawing is protected by the First Amendment”.). Of
    importance for the issue at hand, and after describing precedent from our and
    other circuits’ applying Tinker to off-campus speech, our court stated its
    holding was “not in conflict with this body of case law” regarding the First
    Amendment and off-campus student speech because the drawing’s being
    “composed off-campus and remain[ing] off-campus for two years until it was
    unintentionally taken to school by his younger brother takes the present case
    outside the scope of these precedents”. Id. at 615 n.22 (emphasis added).
          Porter instructs that a speaker’s intent matters when determining
    whether the off-campus speech being addressed is subject to Tinker.            A
    speaker’s intention that his speech reach the school community, buttressed by
    his actions in bringing about that consequence, supports applying Tinker’s
    school-speech standard to that speech.
          In addition, those courts to have considered the circumstances under
    which Tinker applies to off-campus speech have advocated varied approaches.
    E.g., Wynar, 728 F.3d at 1069 (holding that, regardless of the location of the
    speech, “when faced with an identifiable threat of school violence [(threats
    communicated online via MySpace messages)], schools may take disciplinary
    action in response to off-campus speech that meets the requirements of
    Tinker”); Snyder, 650 F.3d at 940 (Smith, J., concurring) (noting that any
    standard adopted “cannot turn solely on where the speaker was sitting when
    the speech was originally uttered [because s]uch a standard would fail to
    accommodate the somewhat ‘everywhere at once’ nature of the [I]nternet”, and
    advocating allowing schools to discipline off-campus speech “[r]egardless of its
    
    
    
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    place of origin” so long as that speech was “intentionally directed towards a
    school”); Kowalski, 652 F.3d at 573 (applying Tinker when a “sufficiently
    strong” nexus exists between the student’s speech and the school’s pedagogical
    interests “to justify the action taken by school officials in carrying out their role
    as the trustees of the student body’s well-being”); D.J.M., 647 F.3d at 766
    (applying Tinker because “it was reasonably foreseeable that [the student’s]
    threats about shooting specific students in school would be brought to the
    attention of school authorities and create a risk of substantial disruption
    within the school environment”); Doninger, 527 F.3d at 48 (holding Tinker
    applies to speech originating off-campus if it “would foreseeably create a risk
    of substantial disruption within the school environment, at least when it was
    similarly foreseeable that the off-campus expression might also reach campus”
    (internal quotation marks omitted)).
          The pervasive and omnipresent nature of the Internet has obfuscated
    the on-campus/off-campus distinction advocated by Bell, “mak[ing] any effort
    to trace First Amendment boundaries along the physical boundaries of a school
    campus a recipe for serious problems in our public schools”. Layshock, 650
    F.3d at 220–21 (Jordan, J., concurring). Accordingly, in the light of our court’s
    precedent, we hold Tinker governs our analysis, as in this instance, when a
    student intentionally directs at the school community speech reasonably
    understood by school officials to threaten, harass, and intimidate a teacher,
    even when such speech originated, and was disseminated, off-campus without
    the use of school resources.
          This holding is consistent with our circuit’s precedent in Shanley and
    Sullivan, that of our sister circuits, and our reasoning in Porter. Further, in
    holding Tinker applies to the off-campus speech in this instance, because such
    determinations are heavily influenced by the facts in each matter, we decline:
    
    
    
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    to adopt any rigid standard in this instance; or to adopt or reject approaches
    advocated by other circuits.
                                            ii.
          Turning to the matter before us, there is no genuine dispute of material
    fact that Bell intended his rap recording to reach the school community. He
    admitted during the disciplinary-committee hearing that one of the purposes
    for producing the recording was to “increase awareness of the [alleged
    misconduct]” and that, by posting the rap recording on Facebook and YouTube,
    he knew people were “gonna listen to it, somebody’s gonna listen to it”,
    remarking that “students all have Facebook”. In short, Bell produced and
    disseminated the rap recording knowing students, and hoping administrators,
    would listen to it.
          Further, regardless of whether Bell’s statements in the rap recording
    qualify as “true threats”, as discussed in part II.B., they constitute threats,
    harassment, and intimidation, as a layperson would understand the terms.
    The Oxford English Dictionary defines: “threaten” as “to declare (usually
    conditionally) one’s intention of inflicting injury upon” another, 17 Oxford
    English Dictionary 998 (2d ed. 1989); “harass” as “[t]o wear out, tire out, or
    exhaust with fatigue, care, [or] trouble”, 6 id. at 1100 (emphasis in original);
    and “intimidate” as “[t]o render timid, inspire with fear; [or] to force to or deter
    from some action by threats or violence”, 8 id. at 7–8. See also Black’s Law
    Dictionary 1708 (10th ed. 2014) (defining “threat” as “[a] communicated intent
    to inflict harm or loss on another or on another’s property”); id. at 831 (defining
    “harassment” as “[w]ords, conduct, or action . . . that, being directed at a
    specific person, annoys, alarms, or causes substantial emotional distress to
    that person and serves no legitimate purpose”); Elonis v. United States, 135 S.
    Ct. 2001, 2011–12 (2015) (explaining that a “threat” can have different
    
    
    
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                                    No. 12-60264
    
    definitions based on context (for example, the difference between its use in
    criminal statutes and its being protected speech under the First Amendment)).
          A reasonable understanding of Bell’s statements satisfies these
    definitions; they: threatened violence against the two coaches, describing the
    injury to be inflicted (putting the pistol down their mouths and pulling the
    trigger, and “capping” them), described the specific weapon (a “rueger” [sic],
    which, as discussed supra, is a type of firearm), and encouraged others to
    engage in this action; and harassed and intimidated the coaches by forecasting
    the aforementioned violence, warning them to “watch [their] back[s]” and that
    they would “get no mercy” when such actions were taken. Accordingly, as
    further discussed infra, there is no genuine dispute of material fact that Bell
    threatened, harassed, and intimidated the coaches by intentionally directing
    his rap recording at the school community, thereby subjecting his speech to
    Tinker.
                                          3.
          Having held Tinker applies in this instance, the next question is whether
    Bell’s recording either caused an actual disruption or reasonably could be
    forecast to cause one. Taking the school board’s decision into account, and the
    deference we must accord it, see, e.g., Wood v. Strickland, 
    420 U.S. 308
    , 326
    (1975), overruled in part on other grounds, Harlow v. Fitzgerald, 
    457 U.S. 800
    (1982); Shanley, 462 F.2d at 975; Callahan v. Price, 
    505 F.2d 83
    , 87 (5th Cir.
    1974), this question becomes whether a genuine dispute of material fact exists
    regarding the reasonableness of finding Bell’s rap recording threatening,
    harassing, and intimidating; and, if no genuine dispute precludes that finding,
    whether such language, as a matter of law, reasonably could have been forecast
    to cause a substantial disruption.
    
    
    
    
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                                            a.
          As noted by our court in Shanley, “in deference to the judgment of the
    school boards, we refer ad hoc resolution of . . . issues [such as this one] to the
    neutral corner of ‘reasonableness’”. 462 F.2d at 971; see also id. at 975 (“[T]he
    balancing of expression and discipline is an exercise in judgment for school
    administrations and school boards, subject only to the constitutional
    requirement of reasonableness under the circumstances”.). For the reasons
    discussed supra, there is no genuine dispute of material fact that the school
    board’s finding the rap recording threatened, harassed, and intimidated the
    two coaches was objectively reasonable.
                                            b.
    
          Next, we consider whether the school board’s disciplinary action against
    Bell, based on its finding he threatened, harassed, and intimidated two
    coaches, satisfies Tinker. Arguably, a student’s threatening, harassing, and
    intimidating a teacher inherently portends a substantial disruption, making
    feasible a per se rule in that regard. We need not decide that question because,
    in the light of this summary-judgment record, and for the reasons that follow,
    Bell’s conduct reasonably could have been forecast to cause a substantial
    disruption.
                                            i.
          As discussed supra, Tinker allows a school board to discipline a student
    for speech that either causes a substantial disruption or reasonably is forecast
    to cause one. 393 U.S. at 514. The Tinker test is satisfied when: an actual
    disruption occurs; or the record contains facts “which might reasonably have
    led school authorities to forecast substantial disruption of or material
    interference with school activities”. Id.
    
    
    
    
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           “Tinker requires a specific and significant fear of disruption, not just
    some remote apprehension of disturbance.” Saxe, 240 F.3d at 211. “School
    officials must be able to show that their actions were caused by something more
    than a mere desire to avoid the discomfort and unpleasantness that always
    accompany an unpopular viewpoint.” A.M. ex rel. McAllum v. Cash, 
    585 F.3d 214
    , 221 (5th Cir. 2009) (alterations and internal quotation marks omitted).
    “Officials must base their decisions on fact, not intuition”, id. at 221–22
    (internal quotation marks omitted); and those decisions are entitled to
    deference, Shanley, 462 F.2d at 967 (“That courts should not interfere with the
    day-to-day operations of schools is a platitudinous but eminently sound maxim
    which this court has reaffirmed on many occasions.”). See also Wood, 420 U.S.
    at 326 (“It is not the role of the federal courts to set aside decisions of school
    administrators which the court may view as lacking a basis in wisdom or
    compassion.”).
           As our court has held: “While school officials must offer facts to support
    their proscription of student speech, this is not a difficult burden, and their
    decisions will govern if they are within the range where reasonable minds will
    differ”.   Cash, 585 F.3d at 222 (emphasis added) (internal citations and
    quotation marks omitted). Accordingly, school authorities are not required
    expressly to forecast a “substantial or material disruption”; rather, courts
    determine the possibility of a reasonable forecast based on the facts in the
    record. See, e.g., id. at 217, 222; see also Tinker, 393 U.S. at 514 (“[T]he record
    does not demonstrate any facts which might reasonably have led school
    authorities to forecast substantial disruption of or material interference with
    school activities, and no disturbances or disorders on the school premises in
    fact occurred”. (emphasis added)).
    
    
    
    
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          Factors considered by other courts in determining, pursuant to Tinker,
    the substantiality vel non of an actual disruption, and the objective
    reasonableness vel non of a forecasted substantial disruption, include: the
    nature and content of the speech, the objective and subjective seriousness of
    the speech, and the severity of the possible consequences should the speaker
    take action, e.g., Wynar, 728 F.3d at 1070–71; the relationship of the speech to
    the school, the intent of the speaker to disseminate, or keep private, the speech,
    and the nature, and severity, of the school’s response in disciplining the
    student, e.g., Doninger, 527 F.3d at 50–52; whether the speaker expressly
    identified an educator or student by name or reference, and past incidents
    arising out of similar speech, e.g., Kowalski, 652 F.3d at 574; the manner in
    which the speech reached the school community, e.g., Boim, 494 F.3d at 985;
    the intent of the school in disciplining the student, Snyder, 650 F.3d at 926,
    929 (majority opinion), 951 (Fisher, J., dissenting); and the occurrence of other
    in-school disturbances, including administrative disturbances involving the
    speaker, such as “[s]chool officials ha[ving] to spend considerable time dealing
    with these concerns and ensuring that appropriate safety measures were in
    place”, D.J.M., 647 F.3d at 766, brought about “because of the need to manage”
    concerns over the speech, Doninger, 527 F.3d at 51.
                                           ii.
          Applying this precedent to the summary-judgment record at hand, and
    for the reasons that follow, a substantial disruption reasonably could have been
    forecast as a matter of law. Viewing the evidence in the requisite light most
    favorable to Bell, including his assertions that he wanted only to raise
    awareness of alleged misconduct by two teachers (Bell admitted at the
    disciplinary-committee hearing that his recording was meant to “increase
    awareness of the situation” and that he was “foreshadowing something that
    
    
    
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    might happen” (emphasis added)), the manner in which he voiced his concern—
    with threatening, intimidating, and harassing language—must be taken
    seriously by school officials, and reasonably could be forecast by them to cause
    a substantial disruption.
          The speech pertained directly to events occurring at school, identified the
    two teachers by name, and was understood by one to threaten his safety and
    by neutral, third parties as threatening. (Bell agreed at the disciplinary-
    committee hearing that “certain statements” were made to his mother “outside
    the school setting” that “‘put a pistol down your mouth’[,] that is a direct
    threat”.) The possible consequences were grave—serious injury to, including
    the possible death of, two teachers. Along that line, Bell admitted he intended
    the speech to be public and to reach members of the school community, which
    is further evidenced by his posting the recording to Facebook and YouTube.
          As noted, the school district’s Discipline – Administrative Policy lists
    “[h]arassment, intimidation, or threatening other students and/or teachers” as
    a severe disruption. Although we may not rely on ipse dixit in evaluating the
    school board’s actions, Shanley, 462 F.2d at 970, the school-district’s policy
    demonstrates an awareness of Tinker’s substantial-disruption standard, and
    the policy’s violation can be used as evidence supporting the reasonable
    forecast of a future substantial disruption. See, e.g., Morse, 551 U.S. at 408–
    10 (relying on, inter alia, the student’s violation of established school policy in
    holding the school board did not violate the student’s First Amendment right);
    Fraser, 478 U.S. at 678, 686 (noting that the “[t]he school disciplinary rule
    proscribing ‘obscene’ language and the prespeech admonitions of teachers gave
    adequate warning to [the student] that his lewd speech could subject him to
    sanctions”).
    
    
    
    
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            Further, even after finding Bell threatened, intimidated, and harassed
    two teachers, the school board’s response was measured—temporarily
    suspending Bell and placing him in an alternative-education program for the
    remainder of the nine-week grading term (about six weeks).                       The
    reasonableness of, and amount of care given to, this decision is reinforced by
    the school board’s finding, differently from the disciplinary committee’s, that
    Bell’s statements also constituted threats.
            And finally, numerous, recent examples of school violence exist in which
    students have signaled potential violence through speech, writings, or actions,
    and then carried out violence against school communities, after school
    administrators and parents failed to properly identify warning signs. See, e.g.,
    Report of the Virginia Tech Review Panel, Mass Shootings at Virginia Tech
    April       16,     2007,      52       (August       2007),       available       at
    https://governor.virginia.gov/media/3772/fullreport.pdf         (section     entitled
    “Missing the Red Flags”); see also Ponce, 508 F.3d at 771 (“[T]he difficulty of
    identifying warning signs in the various instances of school shootings across
    the country is intrinsic to the harm itself”.); LaVine, 257 F.3d at 987 (“After
    Columbine, Thurston, Santee and other school shootings, questions have been
    asked how teachers or administrators could have missed telltale ‘warning
    signs,’ why something was not done earlier and what should be done to prevent
    such tragedies from happening again.”).
            In determining objective reasonableness vel non for forecasting a
    substantial disruption, the summary-judgment record and numerous related
    factors must be considered against the backdrop of the mission of schools: to
    educate. It goes without saying that a teacher, which includes a coach, is the
    cornerstone of education. Without teaching, there can be little, if any, learning.
    
    
    
    
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    Without learning, there can be little, if any, education. Without education,
    there can be little, if any, civilization.
          It equally goes without saying that threatening, harassing, and
    intimidating a teacher impedes, if not destroys, the ability to teach; it impedes,
    if not destroys, the ability to educate. It disrupts, if not destroys, the discipline
    necessary for an environment in which education can take place. In addition,
    it encourages and incites other students to engage in similar disruptive
    conduct. Moreover, it can even cause a teacher to leave that profession. In
    sum, it disrupts, if not destroys, the very mission for which schools exist—to
    educate.
          If there is to be education, such conduct cannot be permitted. In that
    regard, the real tragedy in this instance is that a high-school student thought
    he could, with impunity, direct speech at the school community which
    threatens, harasses, and intimidates teachers and, as a result, objected to
    being disciplined.
          Put succinctly, “with near-constant student access to social networking
    sites on and off campus, when offensive and malicious speech is directed at
    school officials and disseminated online to the student body, it is reasonable to
    anticipate an impact on the classroom environment”. Snyder, 650 F.3d at 951–
    52 (Fisher, J., dissenting). As stated, the school board reasonably could have
    forecast a substantial disruption at school, based on the threatening,
    intimidating, and harassing language in Bell’s rap recording.
                                                 B.
          In considering Bell’s First Amendment claim, and our having affirmed
    summary judgment for the school board under Tinker, it is unnecessary to
    decide whether Bell’s speech also constitutes a “true threat” under Watts v.
    United States, 
    394 U.S. 705
     (1969) (holding hyperbolic threats on the
    
    
    
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    President’s life are not “true threats”). See Elonis, 135 S. Ct. at 2012 (declining
    to address the First Amendment question (whether the speech was a “true
    threat” not protected by that amendment) after resolving the case on other
    grounds).
                                           III.
          For the foregoing reasons, the judgment is AFFIRMED.
    
    
    
    
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                                      No. 12-60264
    
    E. GRADY JOLLY, specially concurring:
          In determining the contours of constitutionally permissible school
    discipline, older cases are relevant for block building, but only block building,
    as we decide what speech schools may discipline under the First Amendment.
    In Tinker, there was no threat to kill a teacher, no threat of violence, and no
    lewd or slanderous comments regarding a teacher. Tinker also did not address
    the intersection between on-campus speech and off-campus speech. When
    Tinker refers to a disruption, it is saying that student ideas may be expressed
    on campus unless they are so controversial that the expression creates a
    disruption. Those principles are controlling where the facts fit, but Tinker’s
    admonitions—or the admonitions in various precedents—are not equally
    forceful in every case. The same can be said of Morse. It is perhaps more
    applicable here than Tinker, because it speaks in terms of physical and moral
    danger to students. Morse makes clear that such danger does not require proof
    of disruptive effects that the speech may cause, as would be required in the
    case of mere expression of non-lethal statements.
          It is true that in a footnote in Ponce we indicated that individual threats
    of violence are more appropriately analyzed in the light of Tinker as opposed
    to threats of mass violence, which we analyzed under Morse.            These are
    evolving principles, however, and we now have before us a different case from
    Tinker, Morse, Ponce, or Porter. Tinker may well be a relevant precedent here.
    But that does not mean that all aspects of a political speech case must be
    slavishly applied to a case of threats to kill teachers.
          We should apply reasonable common sense in deciding these continually
    arising school speech and discipline cases, as we would in any case dealing with
    the evolving common law, which takes into account the technological and
    societal environs of the times. When Tinker was written in 1969, the use of
    
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    the Internet as a medium for student speech was not within the Court’s mind.
    It is also true that this issue was not in the forefront of the Court’s mind when
    Porter was written in 2004, or even when Morse and Ponce were written. Ever
    since Morse, the use, the extent and the effect of the online speech seem to have
    multiplied geometrically.
          Judges should also view student speech in the further context of public
    education today—at a time when many schools suffer from poor performance,
    when disciplinary problems are at their highest, and when schools are, in many
    ways, at their most ineffective point. Judges should take into account the effect
    the courts have had on these problems in school discipline. Increasing judicial
    oversight of schools has created unforeseen consequences, for teachers and for
    schools as much as for students. Students feel constraints on conduct and
    personal speech to be more and more permissive. Teachers will decide not to
    discipline students, given the likelihood of protracted litigation and its
    pressures on the time and person of those who work hard to keep up with the
    increasing demands placed on them as teachers. Schools will not take on the
    risk of huge litigation costs when they could use these resources on school
    lunches, textbooks, or other necessary school resources to educate children, all
    of which are sorely lacking in so many, many instances.
          Judges can help to address these concerns by speaking clearly, succinctly
    and unequivocally. I would decide this case in the simplest way, consonant
    with our cases and the cases in other circuits, by saying as little as possible
    and holding:
                Student     speech     is   unprotected        by   the   First
          Amendment and is subject to school discipline when that
          speech contains an actual threat to kill or physically harm
          personnel and/or students of the school; which actual
    
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      threat is connected to the school environment; and which
      actual threat is communicated to the school, or its students,
      or its personnel.
    
      With these comments, I join Judge Barksdale’s opinion.
    
    
    
    
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                                       No. 12-60264
    
    JENNIFER WALKER ELROD, Circuit Judge, joined by JONES, Circuit
    Judge, concurring:
          I fully concur in the careful, well-reasoned majority opinion, because
    Bell’s rap was directed to the school and contained threats of physical violence.
    See Wynar v. Douglas Cnty. Sch. Dist., 
    728 F.3d 1062
    , 1069 (9th Cir. 2013)
    (declining to consider threshold tests from other circuits and holding only that
    schools may discipline off-campus student speech under the Tinker standard
    “when faced with an identifiable threat of school violence”); see also Morse v.
    Frederick, 
    551 U.S. 393
    , 424 (2007) (Alito, J., concurring) (remarking that “any
    argument for altering the usual free speech rules in the public schools . . .
    must . . . be based on some special characteristic of the school setting,” and
    recognizing only one such special characteristic: “threat[s] to the physical
    safety of students”); Ponce v. Socorro Ind. Sch. Dist., 
    508 F.3d 765
    , 770–72 (5th
    Cir. 2007) (interpreting Morse to allow punishment of off-campus speech
    threatening a mass shooting).
          Most importantly, nothing in the majority opinion makes Tinker
    applicable off campus to non-threatening political or religious speech, even
    though some school administrators might consider such speech offensive,
    harassing, or disruptive. See Morse, 551 U.S. at 403, 409 (majority opinion)
    (noting that the student speech in Morse did not “convey[] any sort of political
    or religious message” and recognizing that while “much political and religious
    speech might be perceived as offensive to some,” such speech “is at the core of
    what the First Amendment is designed to protect”) (internal quotation marks
    omitted); id. at 422–23, 424 (Alito, J., concurring) (emphasizing the First
    Amendment’s protection of speech that comments on political or social issues
    and observing that “[i]t is . . . wrong to treat public school officials, for purposes
    
    
    
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    relevant to the First Amendment, as if they were private, nongovernmental
    actors standing in loco parentis”).
          Indeed, as Judge D. Brooks Smith has cautioned, because Tinker allows
    the suppression of student speech (even political speech) based on its
    consequences rather than its content, broad off-campus application of Tinker
    “would create a precedent with ominous implications. Doing so would empower
    schools to regulate students’ expressive activity no matter where it takes place,
    when it occurs, or what subject matter it involves—so long as it causes a
    substantial disruption at school.” See J.S. ex rel. Snyder v. Blue Mountain Sch.
    Dist., 
    650 F.3d 915
    , 939 (3d Cir. 2011) (en banc) (Smith, J., concurring) (five-
    judge concurrence opining that Tinker does not apply off campus). I agree with
    my learned colleague on the Third Circuit that the First Amendment does not,
    for example, allow a public school to punish a student for “writ[ing] a blog entry
    defending gay marriage” from his home computer, even if the blog entry causes
    a substantial disruption at the school. Id. (Smith, J., concurring).
          By my read, the majority opinion avoids such “ominous implications” and
    does not subject a broad swath of off-campus student expression to Tinker.
    Rather, it quite sensibly decides only the case before it, applying Tinker to
    Bell’s rap, which was intentionally directed toward the school and contained
    threats of physical violence. Because this cautious approach does not place
    public school officials in loco parentis or confer upon them a broad power to
    discipline non-threatening off-campus speech, I concur in full.
    
    
    
    
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                                      No. 12-60264
    
    GREGG COSTA, Circuit Judge, joined by OWEN and HIGGINSON, Circuit
    Judges, concurring:
          This case involves two serious problems that arise all too frequently in
    today’s classrooms: violence and sexual harassment. Judge Dennis’s dissent
    points out that the harassment of female students is a matter of vital public
    concern that Bell’s song sought to expose. The problem for Bell is that his
    song—with its graphic discussion of violence against the coaches—goes well
    beyond blowing the whistle on the alleged harassment.
          Judge Dennis’s dissent contends that these whistleblowing aspects of the
    song nonetheless entitle the speech to “special protection” under the First
    Amendment. Dissent at 1, 12. It treats this argument as a separate basis for
    ruling in Bell’s favor. But fitting this case within Snyder v. Phelps, public
    employee speech cases like Pickering, and the litany of other cited cases
    assumes that Tinker is not implicated. Tinker, of course, involved speech on
    not just a matter of public concern, but the public concern of its day—the war
    in Vietnam. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 
    393 U.S. 503
    , 504
    (1969). Yet the Court still balanced the value of that speech against its impact
    on the learning environment. See id. at 509. That disruption analysis may
    well have come out differently had the Tinkers combined their armband
    protest with talk of violence.    Identifying some aspect of Bell’s song that
    addresses a matter of public concern therefore is not enough to elevate it above
    the Tinker framework unless Tinker does not apply to this type of off-campus
    speech (in which case the speech would enjoy First Amendment protection from
    school discipline so long as it constitutes any form of protected speech, not just
    the “highest rung”).
          Whichever First Amendment doctrine one tries to latch onto, the
    inescapable question is thus whether Tinker’s balancing approach governs “off-
    
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                                      No. 12-60264
    
    campus” student speech that is directed at the school community. For the
    reasons discussed in the majority opinion, along with the views expressed by
    every other circuit that has taken a position on this issue, I agree that it does,
    at least when the speech is threatening, harassing, and intimidating as it is
    here.
            Broader questions raised by off-campus speech will be left for another
    day. That day is coming soon, however, and this court or the higher one will
    need to provide clear guidance for students, teachers, and school
    administrators that balances students’ First Amendment rights that Tinker
    rightly recognized with the vital need to foster a school environment conducive
    to learning. That task will not be easy in light of the pervasive use of social
    media among students and the disruptive effect on learning that such speech
    can have when it is directed at fellow students and educators.            Indeed,
    although Judge Dennis’s dissent extols the aspects of Bell’s song that sought
    to combat sexual harassment, the blanket rule it advocates—one that would
    deprive schools of any authority to discipline students for off-campus speech
    published on social media no matter how much it disrupts the learning
    environment—would allow sexual harassment and ferocious cyberbullying
    that affect our classrooms to go unchecked. See Morrow v. Balaski, 
    719 F.3d 160
    , 164 (3d Cir. 2013) (describing multiple cyberbullying incidents in which
    students were threatened by phone and on MySpace by another student);
    S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 
    696 F.3d 771
    , 773 (8th Cir.
    2012) (explaining that students’ posts on a blog they created “contained a
    variety of offensive and racist comments as well as sexually explicit and
    degrading comments about particular female classmates, whom they identified
    by name”); Kowalski v. Berkeley Cnty. Sch., 
    652 F.3d 565
    , 568 (4th Cir. 2011)
    (detailing online bullying incident in which high school students created
    
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                                    No. 12-60264
    
    webpage called “Students Against Shay’s Herpes” in reference to another high
    school student).
          With these additional observations, I join the majority opinion.
    
    
    
    
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                                      No. 12-60264
    
    JAMES L. DENNIS, Circuit Judge, with whom GRAVES, Circuit Judge, joins
    in full, and with whom PRADO, Circuit Judge, joins except as to Parts I and
    II. B., dissenting:
          Although mischaracterizing itself as “narrow” in scope, the en banc
    majority   opinion    broadly   proclaims   that    a   public   school   board   is
    constitutionally empowered to punish a student whistleblower for his purely
    off-campus Internet speech publicizing a matter of public concern. As if to
    enforce the adage that “children should be seen and not heard,” the majority
    opinion holds that the Itawamba County School Board did not violate the First
    Amendment when it suspended high school senior Taylor Bell for composing
    and posting a rap song on the Internet using his home computer during non-
    school hours, which criticized two male teachers for their repeated sexual
    harassment of minor female students.        In my view, the majority opinion
    commits serious constitutional and summary-judgment procedural errors
    because: (1) Bell is entitled to summary judgment because his off-campus rap
    song was specially protected speech on a matter of public concern; (2) the
    School Board was not authorized by Tinker v. Des Moines Independent
    Community School District, 
    393 U.S. 503
     (1969), to censor students’ off-campus
    online speech; and (3) even assuming arguendo that Tinker granted the School
    Board power to censor such speech, the School Board was not entitled to
    summary judgment under Tinker, because the evidence, viewed in the light
    favorable to the non-movant, Bell, does not support the conclusion that Bell’s
    speech caused a substantial disruption of school activities or justified a
    reasonable forecast of such a disruption by school officials.        The majority
    opinion thereby denigrates and undermines not only Bell’s First Amendment
    right to engage in off-campus online criticism on matters of public concern but
    also the rights of untold numbers of other public school students in our
    
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                                      No. 12-60264
    
    jurisdiction to scrutinize the world around them and likewise express their off-
    campus online criticism on matters of public concern. In doing so, the majority
    opinion obliterates the historically significant distinction between the
    household and the schoolyard by permitting a school policy to supplant
    parental authority over the propriety of a child’s expressive activities on the
    Internet outside of school, expanding schools’ censorial authority from the
    campus and the teacher’s classroom to the home and the child’s bedroom.
          As detailed herein, the majority opinion commits a number of
    fundamental errors that necessitate highlighting lest readers be misinformed
    by its version of the relevant facts and law. First and foremost, the majority
    opinion erroneously fails to acknowledge that Bell’s rap song constitutes
    speech on “a matter of public concern” and therefore “occupies the highest rung
    of the hierarchy of First Amendment values.” See Snyder v. Phelps, 
    562 U.S. 443
    , 452 (2011) (internal quotation marks and citation omitted). Instead, by
    narrowly focusing its analysis on a few, plainly rhetorical lyrics in Bell’s song,
    the majority opinion wholly glosses over the urgent social issue that Bell’s song
    lays bare and thus flouts Supreme Court precedent requiring us to evaluate
    whether “the overall thrust and dominant theme of [Bell’s song] spoke to
    broader public issues”—which it did. See id. at 454.
          Second, in drastically expanding the scope of schools’ authority to
    regulate students’ off-campus speech, the majority opinion disregards Supreme
    Court precedent establishing that minors are entitled to “significant” First
    Amendment protection, including the right to engage in speech about violence
    or depicting violence, and that the government does not enjoy any “free-floating
    power to restrict the ideas to which children may be exposed.” See Brown v.
    Entm’t Merchants Ass’n, 
    131 S. Ct. 2729
    , 2735–36 (2011).          Similarly, the
    majority opinion also altogether fails to consider Supreme Court precedents
    
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                                      No. 12-60264
    
    that substantially restrict the government’s ability to regulate Internet speech,
    Reno v. American Civil Liberties Union, 
    521 U.S. 844
    , 868–70 (1997), and the
    extent to which the majority opinion’s vague framework fails to provide
    constitutionally adequate notice of when student speech crosses the line
    between permissible and punishable off-campus expression, see id. at 871–72;
    accord Brown, 131 S. Ct. at 2744–46 (Alito, J., concurring).           Further, by
    deriving its rule from a school policy that focuses on whether a layperson might
    view Bell’s speech as “threatening,” “harassing,” or “intimidating,” the
    majority opinion ignores First Amendment precedents demanding that the
    government prove more than mere negligence before imposing penalties for so-
    called “threatening” speech. See Virginia v. Black, 
    538 U.S. 343
    , 359 (2003);
    N.A.A.C.P. v. Claiborne Hardware Co., 
    458 U.S. 886
    , 904, 928–29 (1982).
          Third, by holding that the Tinker framework applies to off-campus
    speech like Bell’s, the majority opinion simply ignores that Tinker’s holding
    and its sui generis “substantial-disruption” framework are expressly grounded
    in “the special characteristics of the school environment,” Tinker v. Des Moines
    Indep. Cmty. Sch. Dist., 
    393 U.S. 503
    , 506 (1969), and the need to defer to
    school officials’ authority “to prescribe and control conduct in the schools,” id.
    at 507 (emphasis added), whereas Bell’s rap song was recorded and released
    entirely outside the school environment. The Court’s post-Tinker precedents
    make clear this critical distinction. See, e.g., Morse v. Frederick, 
    551 U.S. 393
    ,
    422 (2007) (Alito, J., concurring) (noting that Tinker allows schools to regulate
    “in-school student speech . . . in a way that would not be constitutional in other
    settings”). In this regard, the majority opinion also fails to account for the vital
    fact that the Tinker framework is far too indeterminate of a standard to
    adequately protect the First Amendment right of students, like Bell, to engage
    in expressive activities outside of school, as well as their parents’ constitutional
    
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                                      No. 12-60264
    
    right to direct their children’s upbringing and the First Amendment right of
    adults and children alike to receive students’ speech. In other words, the
    majority opinion allows schools to police their students’ Internet expression
    anytime and anywhere—an unprecedented and unnecessary intrusion on
    students’ rights.
          Fourth and finally, the majority opinion also errs in its very application
    of the Tinker framework. As detailed in the panel majority’s opinion, the
    summary-judgment evidence simply does not support the conclusion, as
    required by Tinker, that Bell’s song substantially disrupted school activities or
    that school officials reasonably could have forecasted that it would do so. In
    reaching the opposite conclusion, the majority opinion not only fails to view the
    summary-judgment evidence in the light most favorable to the non-movant,
    Bell, accord Tolan v. Cotton, 
    134 S. Ct. 1861
    , 1865 (2014), but also dilutes the
    Tinker “substantial-disruption” framework into an analytic nullity.
          Even in the most repressive of dictatorships, the citizenry is “free” to
    praise their leaders and other people of power or to espouse views consonant
    with those of their leaders. “Freedom of speech” is thus a hollow guarantee if
    it permits only praise or state-sponsored propaganda. Freedom of speech
    exists exactly to protect those who would criticize, passionately and
    vociferously, the actions of persons in power. But that freedom is denied to
    Bell by the majority opinion because the persons whose conduct he dared to
    criticize were school teachers.     If left uncorrected, the majority opinion
    inevitably will encourage school officials to silence student speakers, like
    Taylor Bell, solely because they disagree with the content and form of their
    speech, particularly when such off-campus speech criticizes school personnel.
    Such a precedent thereby clearly contravenes the basic principle that, “[i]n our
    system, students may not be regarded as closed-circuit recipients of only that
    
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    which the States chooses to communicate.          They may not be confined to
    expression of those sentiments that are officially approved.” Tinker, 393 U.S.
    at 511. Today, however, the majority opinion exempts the children of Texas,
    Louisiana,   and    Mississippi   from    this   long-established   constitutional
    safeguard. Because the majority opinion’s undue deference to a public school
    board’s assertion of authority to censor the speech of students while not within
    its custody impinges the very core of our Constitution’s fundamental right to
    free speech, I respectfully but emphatically dissent.
                                             I.
          The en banc majority opinion completely ignores Bell’s argument that
    the School Board violated his First Amendment rights in punishing him for his
    rap song, which he contends was protected speech on “a matter of public
    concern.” Although Bell strenuously made his “speech on a matter of public
    concern” argument at every opportunity, including at the en banc oral
    argument, the en banc majority opinion fails to address this critical point.
    Instead, the majority opinion transforms the Itawamba County School Board
    disciplinary policy into an unprecedented rule of constitutional law that
    effectively permits school officials across our Circuit to punish a student’s
    protest of teacher misconduct regardless of when or 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. I
    respectfully but strongly disagree with the majority opinion’s silent rejection
    of Bell’s argument, not only because Bell’s argument is meritorious, but also
    because the opinion’s sub silentio decision of the issue presented has led it into
    several serious and unfortunate constitutional errors.
          Speech on “matters of public concern” is “at the heart of the First
    Amendment’s protection.”      Snyder v. Phelps, 
    562 U.S. 443
    , 451–52 (2011)
    
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    (internal quotation marks and citation omitted).        “The First Amendment
    reflects ‘a profound national commitment to the principle that debate on public
    issues should be uninhibited, robust, and wide-open.’” Id. at 452 (quoting New
    York Times Co. v. Sullivan, 
    376 U.S. 254
    , 270 (1964)). “That is because ‘speech
    concerning public affairs is more than self-expression; it is the essence of self-
    government.’” Id. (quoting Garrison v. Louisiana, 
    379 U.S. 64
    , 74–75 (1964)).
    “Accordingly, ‘speech on public issues occupies the highest rung of the
    hierarchy of First Amendment values, and is entitled to special protection.’”
    Id. (quoting Connick v. Myers, 
    461 U.S. 138
    , 145 (1983)).
          Although the Supreme Court has noted that “the boundaries of the public
    concern test are not well defined,” San Diego v. Roe, 
    543 U.S. 77
    , 83 (2004) (per
    curiam), it has “articulated some guiding principles, principles that accord
    broad protection to speech to ensure that courts themselves do not become
    inadvertent censors,” Snyder, 562 U.S. at 452. “Speech deals with matters of
    public concern when it can be fairly considered as relating to any matter of
    political, social, or other concern to the community, or when it is a subject of
    legitimate news interest; that is, a subject of general interest and of value and
    concern to the public.” Id. at 453 (internal quotation marks and citations
    omitted).   “The arguably ‘inappropriate or controversial character of a
    statement is irrelevant to the question whether it deals with a matter of public
    concern.’” Id. (quoting Rankin v. McPherson, 
    483 U.S. 378
    , 387 (1987)).
          Determining whether speech involves a matter of public concern
    “requires us to examine ‘the content, form, and context’ of th[e] speech, as
    revealed by the record as a whole.” Id. (quoting Dun & Bradstreet, Inc. v.
    Greenmoss Builders, Inc., 
    472 U.S. 749
    , 761 (1985)).         “As in other First
    Amendment cases, the court is obligated ‘to make an independent examination
    of the whole record in order to make sure that the judgment does not constitute
    
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    a forbidden intrusion on the field of free expression.’” Id. (quoting Bose Corp.
    v. Consumers Union of United States, Inc., 
    466 U.S. 485
    , 499 (1984)). “In
    considering content, form, and context, no factor is dispositive, and it is
    necessary to evaluate all the circumstances of the speech, including what was
    said, where it was said, and how it was said.” Id. at 454.
           In Snyder, the Supreme Court applied this framework to hold that the
    First Amendment barred an aggrieved father from recovering for, inter alia,
    intentional infliction of emotional distress, against an anti-gay church
    congregation whose picketing coincided with the funeral of his son, who was a
    marine, notwithstanding the alleged outrageousness and hurtfulness of the
    picketers’ speech to Snyder. 1 562 U.S. at 460. Specifically, in that case, Fred
    Phelps, the founder of the Westboro Baptist Church, traveled to Maryland,
    along with six parishioners, in order to hold a protest on public property 1,000
    feet from the funeral of Marine Lance Corporal Matthew Snyder, who was
    killed in Iraq in the line of duty. Id. at 448. The picketing was conducted under
    police supervision and out of the sight of those at the church. Id. at 457. The
    protest was not unruly; there was no shouting, profanity, or violence. Id. The
    record confirms that any distress occasioned by Westboro’s picketing turned on
    the content and viewpoint of the message conveyed, rather than any
    interference with the funeral itself. Id. The picketers peacefully displayed
    signs that read “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,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re
    Going to Hell,” and “God Hates You.” Id. at 448. The Westboro picketers
    
    
           1“The funeral procession passed within 200 to 300 feet of the picket site. Although
    Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he
    did not see what was written on the signs until later that night, while watching a news
    broadcast covering the event.” Id. at 449.
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    displayed these signs for about 30 minutes before the funeral began. Id. at
    449.
            Snyder’s father thereafter filed a diversity action against Phelps and
    other picketers alleging, inter alia, state tort claims of intentional infliction of
    emotional distress, intrusion upon seclusion, and civil conspiracy. Id. at 449–
    50.    After a jury awarded millions of dollars in damages, Phelps and his
    congregants argued that they were entitled to judgment as a matter of law
    because the First Amendment fully protected their speech. Id. at 450. The
    district court reduced the punitive damages award, but left the verdict
    otherwise intact. Id. The Fourth Circuit reversed, concluding that Westboro's
    statements were entitled to First Amendment protection because those
    statements “were on matters of public concern, were not provably false, and
    were expressed solely through hyperbolic rhetoric.” Id. at 451.
            The Supreme Court granted certiorari and affirmed.             Id. at 461.
    Evaluating the “content, form and context” of the congregants’ protest, the
    Court concluded that Westboro’s speech addressed a matter of public concern
    and was entitled to “special protection” under the First Amendment, thus
    barring Snyder from recovering in tort on the basis of the “outrageousness” of
    their speech. Id. at 458. According to the Court:
            Such speech cannot be restricted simply because it is upsetting or
            arouses contempt. “If there is a bedrock principle underlying the
            First Amendment, it is that the government may not prohibit the
            expression of an idea simply because society finds the idea itself
            offensive or disagreeable.” Texas v. Johnson, 
    491 U.S. 397
    , 414
            (1989). Indeed, “the point of all speech protection . . . is to shield
            just those choices of content that in someone's eyes are misguided,
            or even hurtful.” Hurley v. Irish-American Gay, Lesbian and
            Bisexual Group of Boston, Inc., 
    515 U.S. 557
    , 574 (1995).
    Id. Further, the Court concluded:
    
    
    
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           Westboro believes that America is morally flawed; many
           Americans might feel the same about Westboro. Westboro’s
           funeral picketing is certainly hurtful and its contribution to public
           discourse may be negligible. But Westboro addressed matters of
           public import on public property, in a peaceful manner, in full
           compliance with the guidance of local officials. The speech was
           indeed planned to coincide with Matthew Snyder's funeral, but did
           not itself disrupt that funeral, and Westboro’s choice to conduct its
           picketing at that time and place did not alter the nature of its
           speech.
           Speech is powerful. It can stir people to action, move them to tears
           of both joy and sorrow, and—as it did here—inflict great pain. On
           the facts before us, we cannot react to that pain by punishing the
           speaker. As a Nation we have chosen a different course—to protect
           even hurtful speech on public issues to ensure that we do not stifle
           public debate. That choice requires that we shield Westboro from
           tort liability for its picketing in this case.
    Id. at 460-461.
           Applying these principles to the instant case, the record indisputably
    reveals that Bell’s speech addressed a matter of public concern. Bell composed
    his song after a number of his female friends at school informed him that
    Coaches Wildmon and Rainey had frequently sexually harassed them during
    school.    The lyrics of Bell’s song 2 describe in detail the female students’
    allegations of sexual misconduct, e.g., describing Coach Wildmon as “telling
    students that they [were] sexy,” and Coach Rainey as “rubbing on the black
    girls’ ears in the gym.” With a darkly parodic—and, by many standards,
    crude—tone,       the   song   ridicules    the    coaches    for   their   outrageously
    inappropriate conduct with the female students, e.g., describing one coach as
    having “drool running down [his] mouth” while he “look[s] down girls’ shirts,”
    
    
    
           2Bell's Facebook page labels the song “P.S. Koaches,” but Bell's complaint identifies
    the song's title as “PSK The Truth Needs to be Told.”
    
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    and positing that Wildmon is “fucking around” because of his wife’s appearance
    (the song states that “his wife ain’t got no titties”). 3 By describing Rainey as
    “Bobby Hill the second,” the song also draws parallels between the coaches’
    alleged sexual misconduct and the alleged sexual misconduct of a former
    Itawamba coach, Bobby Hill, who was arrested the previous year for sending
    sexually explicit text messages to a female student. Although the song does
    contain some violent lyrics, the song’s overall “content” is indisputably a darkly
    sardonic but impassioned protest of two teachers’ alleged sexual misconduct,
    e.g., opining that Rainey is “a fool/30 years old fucking with students at the
    school.”   That Bell’s song may fall short of the School Board’s aesthetic
    preferences for socio-political commentary is not relevant to determining
    whether the rap song’s content addresses a matter of public concern. See, e.g.,
    Snyder, 562 U.S. at 453 (observing that “[t]he arguably inappropriate or
    controversial character of a statement is irrelevant to the question whether it
    deals with a matter of public concern”) (internal quotation marks omitted). In
    Snyder, the Supreme Court explicitly rejected the argument that the crude and
    egregiously offensive messages on the anti-gay protesters’ signs—which
    included “Fag Troops,” “God Hates the USA/Thank God for 9/11” and “Thank
    God for Dead Soldiers”—should affect the inquiry into whether the signs
    addressed a matter of public concern. Id. at 454. According to the Court,
    
    
          3   Notably, the instances of sexual misconduct detailed in Bell’s lyrics were not
    unsubstantiated. Four different female students submitted sworn affidavits detailing the
    sexual harassment they endured at the hands of the coaches. For instance, consistent with
    Bell’s lyrics, one female student stated in her sworn affidavit that Rainey had rubbed her
    ears without her permission. Likewise, another female student claimed that Wildmon had
    looked down her shirt; told her that she “was one of the cutest black female students” at
    Itawamba; commented on her “big butt”; and told her that he “would date her if [she] were
    older.” Another female student consistently stated that Rainey told her, “Damn, baby, you
    are sexy,” while in the school gym. Another female student stated that Rainey told her that
    he would “turn” her “back straight from being gay.”
    
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    “[w]hile these messages may fall short of refined social or political
    commentary, the issues they highlight . . . are matters of public import.” Id.
    So much more so here where Bell addresses a serious issue of alleged teacher
    sexual misconduct toward minor students. Indeed, similar to Snyder, even if
    some of Bell’s lyrics were crude and contained violent imagery, “th[is] would
    not change the fact that the overall thrust and dominant theme of [Bell’s song]
    spoke to broader public issues.” See id.
          The “form” of Bell’s speech, i.e., a rap song, likewise militates in favor of
    finding that it addresses a matter of public concern. It is axiomatic that music,
    like other art forms, has historically functioned as a mechanism to raise
    awareness of contemporary social issues. 4 Rap is no exception. “Over the past
    twenty years there has been extensive academic discourse on the role of rap
    music . . . as a form of political expression.” Commonwealth v. Gray, 
    463 Mass. 731
    , 755 n.24 (2012) (collecting authorities).            A long aspiring rap artist
    himself, 5 Bell invoked this same tradition by deploying the artistic conventions
    and style of the rap genre in order to critique the coaches’ sexual harassment
    of female students.
          Finally, the “context” of Bell’s speech likewise evinces that it addresses
    a matter of public import. By releasing his song on the Internet, Bell sought
    to bring attention to the coaches’ sexual misconduct against his female
    classmates, just as the Westboro group in Snyder sought to bring attention to
    its protest by picketing in public. See Snyder, 562 U.S. at 454–55 (concluding
    that the “context” of “[the protesters’] signs, displayed on public land next to a
    
    
          4  See, e.g., Bob Dylan, The Times They Are A-Changin’, on The Times They Are a
    Changin’ (Columbia Records 1964) (“Come Senators, Congressmen, please heed the call.
    Don’t stand in the doorway, don’t block up the hall.”).
    
          5   Bell’s stage name is “T-Bizzle.”
    
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    public street, reflect the fact that the church finds much to condemn in modern
    society”). In a monologue introduction on the YouTube version of his song, Bell
    described the genesis of the rap as follows:
           A lot of people been asking me lately you know what was my
           reasoning behind creating P.S. Koaches. It’s . . . something that’s
           been going on . . . for a long time [] that I just felt like I needed to
           address. I’m an artist . . . I speak real life experience. . . .
    Later, at the Disciplinary Committee meeting, Bell likewise explained that the
    song was an effort to “speak out” on the issue of teacher-on-student sexual
    harassment. 6
           Although Bell was an enrolled high school student, he was not within the
    custody of the school system when he initially composed, recorded, and posted
    his rap song on the Internet during the Christmas holidays. At that time he
    was eighteen years old but living with his mother, and therefore was an adult
    capable of making his own decisions as to expressing his views publicly. Even
    if he had still been a minor at the time he composed and posted his song, he
    would have been subject to the exclusive control, custody, and discipline of his
    parent—not the school system. See Shanley v. Ne. Indep. Sch. Dist., 
    462 F.2d 960
    , 964 (5th Cir. 1972). Because Bell’s speech did not fall within any of the
    narrow unprotected categories of speech recognized by the Supreme Court (e.g.,
    obscenity or a true threat), 7 it was fully protected speech and presumptively
    
    
           6Bell also explained that he did not immediately report the teachers’ misconduct to
    school authorities because, in his view, school officials generally ignored complaints by
    students about the conduct of teachers.
    
           7 Although the School Board claims that Bell’s speech constitutes a “true threat,” this
    argument is without merit for the reasons explained in the panel majority opinion. See Bell
    v. Itawamba Cnty. Sch. Bd., 
    774 F.3d 280
    , 300–03 (5th Cir. 2014) (explaining that Bell’s song
    did not constitute a “true threat,” “as evidenced by, inter alia, its public broadcast as a rap
    song, its conditional nature, and the reactions of its listeners”). In any event, as explained
    herein, the majority opinion does not conclude that Bell’s song was a true threat. See Maj.
    Op. pp. 26, 33–34. Nor could it.
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                                          No. 12-60264
    
    not subject to governmental regulation or censorship on the basis of its content.
    See Erznoznik v. City of Jacksonville, 
    422 U.S. 205
    , 213 (1975) (“Speech that is
    neither obscene as to youths nor subject to some other legitimate proscriptions
    cannot be suppressed solely to protect the young . . .”). Beyond that basic First
    Amendment protection, however, the content, form, and context of Bell’s
    speech indisputably reveals that it was also entitled to “special protection”
    against censorship because it was speech on a matter of public concern
    safeguarded “at the heart” of the First Amendment’s protections. Snyder, 562
    U.S. at 451–52. Therefore, at a bare minimum, Bell was entitled to as much,
    if not more, First Amendment protection as tortfeasors and public employees
    when the state attempts to regulate their speech addressing matters of public
    concern.    See, e.g., Snyder, 562 U.S. at 459–60 (holding that speakers on
    matters of public concern could not be held liable in tort for intentional
    infliction of emotional distress, intrusion upon seclusion, and civil conspiracy
    on the basis of their speech); United States v. Nat’l Treasury Employees Union,
    
    513 U.S. 454
    , 466–68 (1995) (explaining the restrictions upon the government
    to punish employees when they speak on matters of public concern); Rankin,
    483 U.S. at 386–89 (holding that threatening statement by public employee
    addressed a matter of public concern and government could not terminate her
    on the basis of that speech). Moreover, while it is not dispositive of this case,
    it bears mentioning that the School Board has never attempted to argue that
    Bell’s song stated any fact falsely.
           The majority opinion, however, wholly ignores these critical aspects of
    Bell’s speech, 8 instead reflexively reducing Bell’s rap song to “intimidating,
    
    
    
           8The majority opinion instead summarily concludes that the “misconduct alleged by
    Bell against the two teachers is, of course, not at issue.” See Maj. Op. p. 13. Of course, I
    agree that the veracity of these allegations is not the “issue” in this case anymore than the
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    harassing, and threatening” speech without any analysis whatsoever. Indeed,
    under the majority opinion’s newfound approach, Bell’s off-campus speech is
    regulable by school officials pursuant to Tinker because (i) Bell wanted his
    speech to be heard by community members and (ii) “a layperson” apparently
    would view some of the lyrics in the rap as “threatening,” “harassing,” and
    “intimidating.” As an initial matter, I am compelled to point out that the
    majority opinion’s test unabashedly adopts almost the precise wording of the
    Itawamba County School Board’s disciplinary policy.                     Unmoored from
    traditional constitutional law analysis, the majority opinion instead exalts this
    single school board’s policy to a new rule of constitutional law. See Maj. Op. p.
    25 (holding that Tinker applies where student’s off-campus speech is
    threatening, harassing and intimidating).
           Furthermore, Snyder itself squarely illumines the errors in the
    majority’s two-prong test.         Turning first to the majority opinion’s flawed
    criticism of Bell’s intention to publicize his message, the Supreme Court in
    Snyder explicitly held that a speaker’s efforts to communicate his message to
    the public is a reason to provide his speech with heightened protection—not a
    reason to permit greater regulation by the state.                  562 U.S. at 454–55
    (concluding that protesters’ decision to conduct their protest “on public land
    next to a public street” evinced that the speech addressed a matter of public
    concern).    Yet, in direct contradiction to Snyder, the majority opinion’s
    proffered framework perversely faults Bell for his efforts to publicize the
    teachers’ sexual misconduct, thus creating precedent that contravenes the very
    
    
    veracity of Westboro’s signs was the “issue” in Snyder. What is at issue, however, is whether
    publicly protesting that alleged misconduct warrants “special protection” for Bell’s speech.
    The answer to that question, as explained above, is yes. In any event, however, Bell has
    offered uncontroverted proof of the coaches’ sexual harassment of the minor female students
    in the form of sworn affidavits detailing that abuse, which were introduced into evidence in
    this case.
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    values that the First Amendment seeks to protect. See Hustler Magazine, Inc.
    v. Falwell, 
    485 U.S. 46
    , 50 (1988) (“At the heart of the First Amendment is the
    recognition of the fundamental importance of the free flow of ideas and
    opinions on matters of public interest and concern.”).
          In addition, contrary to the majority opinion’s focus on how a “layperson”
    apparently would perceive Bell’s speech, the Supreme Court’s cases, including
    Snyder, demonstrate that listeners’ subjective opinions about speech cannot
    control whether speech addresses a matter of public concern or not.             For
    example, in Snyder, the Court explained that “[t]he arguably ‘inappropriate or
    controversial character of a statement is irrelevant to the question whether it
    deals with a matter of public concern.’” 562 U.S. at 453. (quoting Rankin, 483
    U.S. at 387). Specifically, in Snyder, a layperson likewise might have viewed
    the anti-gay protesters’ messages as harassing (“God Hates You”), intimidating
    (“You’re Going to Hell”), and threatening (“Thank God for Dead Soldiers,”
    “Thank God for IEDs”), but the Court nevertheless held that “the overall thrust
    and dominant theme of Westboro’s demonstration spoke to broader public
    issues” entitling it to “special protection.”   Id. at 454.     Thus, the “special
    protection” that must be afforded to Bell’s speech here cannot be qualified by
    the majority opinion’s mere conjecture that some hypothetical “layperson”
    might consider a few of Bell’s lyrics to fit the Oxford English Dictionary’s
    definition of “threatening,” “harassing” or “intimidating.” See id. Indeed, there
    is no constitutional basis for excluding “threatening,” “harassing,” or
    “intimidating” speech from the “special protection” that is afforded speech on
    matters of public concern. The majority opinion’s approach is thus tantamount
    to permitting mainstream sensitivities to define whether speech addresses a
    matter of public concern or not. Snyder clearly demonstrates that approach is
    flawed.   Id. at 453; see also Cohen v. California, 
    403 U.S. 15
    , 21 (1971)
    
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    (recognizing that the First Amendment does not permit “a majority to silence
    dissidents simply as a matter of personal predilections”).
          In sum, by refusing to recognize that Bell’s speech addresses a matter of
    public concern and is thereby entitled to “special protection” against
    censorship, the majority opinion creates a precedent that effectively inoculates
    school officials against off-campus criticism by students.       In so doing, the
    majority opinion fails to take seriously the long-established principle that the
    First Amendment was adopted to protect “vehement, caustic, and sometimes
    unpleasantly sharp attacks on government and public officials.” Sullivan, 376
    U.S. at 270; cf. City of Houston v. Hill, 
    482 U.S. 451
    , 465 (1987) (holding that
    the First Amendment does not permit states to “provide the police with
    unfettered discretion to arrest individuals for words or conduct that annoy or
    offend them”). Contrary to the majority opinion’s position, school officials are
    no exception. See West Virginia State Bd. of Educ. v. Barnette, 
    319 U.S. 624
    ,
    637 (1943) (“The Fourteenth Amendment . . . protects the citizen against the
    State itself and all of its creatures—Boards of Education not excepted.”);
    Shanley, 462 F.2d at 964 (“It should have come as a shock to the parents of
    five high school seniors . . . that their elected school board had assumed
    suzerainty over their children before and after school, off school grounds, and
    with regard to their children’s rights of expressing their thoughts. We trust
    that it will come as no shock whatsoever to the school board that their
    assumption of authority is an unconstitutional usurpation of the First
    Amendment.”).
                                          II.
          The en banc majority opinion affirms the School Board’s punishment of
    Bell pursuant to its new and unprecedented rule of constitutional law whereby
    schools may punish students’ off-campus speech pursuant to Tinker if that
    
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    speech is intentionally directed at the school community and is “threatening,
    harassing, and intimidating” to the ears of a “layperson” without any
    instruction on the meaning of these terms. The majority opinion’s content-
    based, vague, and “layperson”-based restriction directly conflicts with the core
    principles underlying the First Amendment’s guarantees as explained by the
    Supreme Court.
                                          A.
          “The First Amendment provides that ‘Congress shall make no law . . .
    abridging the freedom of speech.’” United States v. Stevens, 
    559 U.S. 460
    , 468
    (2010). As a general matter, the First Amendment prohibits the government
    from “restrict[ing] expression because of its message, its ideas, its subject
    matter, or its content.” Ashcroft v. American Civil Liberties Union, 
    535 U.S. 564
    , 573 (2002). “From 1791 to the present, however, the First Amendment
    has permitted restrictions upon the content of speech in a few limited areas,
    and has never included a freedom to disregard these traditional limitations.”
    Stevens, 559 U.S. at 468. “These limited areas—such as obscenity, incitement,
    and fighting words—represent well-defined and narrowly limited classes of
    speech, the prevention and punishment of which has never been thought to
    raise any constitutional problem.” Brown v. Entm’t Merchants Ass’n, 131 S.
    Ct. 2729, 2733 (2011) (internal quotation marks and citations omitted).
          In Brown, the Supreme Court specifically rejected the argument that
    state officials retain a broad “free-floating power” to create whole new
    categories of unprotected speech that are applicable solely to minors, even if
    such speech is deemed harmful in the eyes of the government. Id. at 2735–36.
    In that case, the Court struck down as violative of the First Amendment a
    California law that prohibited the sale or rental of violent video games to
    minors. Id. at 2732-33. Specifically, the law proscribed the sale or rental to
    
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    minors of video “games ‘in which the range of options available to a player
    includes killing, maiming, dismembering, or sexually assaulting an image of a
    human being, if those acts are depicted’ in a manner that ‘[a] reasonable
    person, considering the game as a whole, would find appeals to a deviant or
    morbid interest of minors,’ that is ‘patently offensive to prevailing standards
    in the community as to what is suitable for minors,’ and that ‘causes the game,
    as a whole, to lack serious literary, artistic, political, or scientific value for
    minors.’”    Id. (quoting Cal. Civ. Code. Ann. § 1746(d)(1)(A)).                 California
    purportedly enacted the law based on its legislative judgment, which it claimed
    was supported by research, that such games were harmful to children. Id. at
    2738-39. In defending the law, California argued, inter alia, that the First
    Amendment permitted it “to create a wholly new category of content-based
    regulation that is permitted only for speech directed at children”—viz.,
    “violent” speech as defined above that lacked “serious literary, artistic,
    political, or scientific value for minors.” Id. at 2733–35.
           In a strongly worded opinion by Justice Scalia, the Supreme Court
    rejected California’s arguments and struck down the law. Concluding that its
    recent decision in United States v. Stevens, 
    559 U.S. 460
     (2010), 9 controlled the
    
    
           9   In Stevens, the United States government had attempted to leverage similar
    arguments in defending a federal statute banning depictions of animal cruelty. 559 U.S. at
    468-69. The United States argued that “depictions of animal cruelty” should be added to the
    list of categories of unprotected speech, alongside obscenity, incitement, and defamation. Id.
    However, because there was no “tradition excluding depictions of animal cruelty from ‘the
    freedom of speech’ codified in the First Amendment,” the Court refused to create a new
    category of unprotected speech for such depictions. Id. The Court also explicitly rejected “as
    startling and dangerous” the government’s contention that it could create new categories of
    unprotected speech by applying a “simple balancing test” that weighs the value of a particular
    type of speech against its social costs. Id. at 470. According to the Court,
           [t]he First Amendment’s guarantee of free speech does not extend only to
           categories of speech that survive an ad hoc balancing of relative social costs
           and benefits. The First Amendment itself reflects a judgment by the American
           people that the benefits of its restrictions on the Government outweigh the
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    outcome of the case, the Court held that California could not defend its law by
    analogizing the violent speech at issue to the obscenity exception to the First
    Amendment because its prior “cases have been clear that the obscenity
    exception . . . does not cover whatever a legislature finds shocking, but only
    depictions of sexual conduct.” Id. at 2734. More critically, however, the Court
    outright rejected California’s argument that the First Amendment permitted
    the state “to create a wholly new category of content-based regulation,” i.e.,
    speech containing violent imagery, “that is permissible only for speech directed
    at children.” Id. at 2735. Although acknowledging that the state “possesses
    legitimate power to protect children from harm,” the Court concluded that such
    power “does not include a free-floating power to restrict the ideas to which
    children may be exposed.” Id. at 2736. Further, while noting that California’s
    argument would “fare better if there were a longstanding tradition in this
    country of specially restricting children’s access to depictions of violence,” the
    Court observed that there was no such tradition, as evidenced by the extent of
    violence contained in common children’s stories (e.g., Hansel and Gretel) and
    high school reading lists (e.g., the description in “Lord of the Flies” of a
    schoolboy who is savagely murdered by other children).                       Id. at 2736.
    Accordingly, as in Stevens, because there was no “longstanding tradition” of
    prohibiting minors’ participation in speech containing violent imagery, the
    Court refused to hold that such speech is categorically exempted from First
    Amendment protection. Id. at 2736-38.
    
    
           cost. Our Constitution forecloses any attempt to revise that judgment simply
           on the basis that some speech is not worth it.
    Id. A subsequent, much more narrow version of the statute at issue in Stevens, was upheld
    by our court. United States v. Richards, 
    755 F.3d 269
    , 271, 279 (5th Cir. 2014) (discussing
    history of 18 U.S.C. § 48 and upholding version that proscribed only “unprotected obscenity”),
    cert. denied, 
    135 S. Ct. 1546
     (2015).
    
    
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           Applying these principles to the instant case, Brown represents a forceful
    reaffirmation by the Court that the First Amendment applies to minors, 10 id.
    at 2735, and that the government may only restrict that constitutional right in
    “narrow and well-defined circumstances,” id. at 2736 (citing Erznoznik, 422
    U.S. at 212–13). Indeed, after Brown, it cannot seriously be contested that
    minors enjoy the First Amendment right to engage in speech containing violent
    imagery when they are at home, away from school, so long as that speech does
    not rise to the level of a true threat, incitement or fighting words. See id. at
    2736-38 (holding that speech containing violent imagery is protected under the
    First Amendment, even for minors). Nevertheless, the majority opinion wholly
    fails to reckon with these important statements by the Court. Instead, by
    simply assuming that all children speak “qua students,” its legal analysis
    begins with the false premise that the speech at issue constitutes “student
    speech” that must be “tempered in the light of a school official’s duty” to teach
    students appropriate behavior.            See Maj. Op. p. 14 (discussing the First
    Amendment rights of “[s]tudents qua students”). But the Supreme Court has
    never suggested that minors’ constitutional rights outside of school are
    somehow qualified if they coincidentally are enrolled in a public school. To the
    contrary, Brown evinces that the majority opinion instead should have begun
    
    
    
           10  In so holding, the Court also explicitly rejected Justice Thomas’ contention in his
    dissent that minors have no right to speak absent their parents’ consent. Id. at 2736 n.3
    (noting that Justice Thomas “cites no case, state or federal, supporting this view, and to our
    knowledge there is none”). Although conceding that the government may have authority to
    enforce parental prohibitions in certain circumstances (e.g., forcing concert promoters not to
    admit minors whose parents have forbidden them from attending), the Court nevertheless
    observed that “it does not follow that the state has the power to prevent children from hearing
    or saying anything without their parents’ prior consent. The latter would mean, for example,
    that it could be made criminal to admit persons under 18 to a political rally without their
    parents’ prior written consent—even a political rally in support of laws against corporal
    punishment of children, or laws in favor of greater rights for minors.” Id. (emphasis in
    original).
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    its analysis from the basic premise that children are entitled to “significant”
    First Amendment rights. 131 S. Ct. at 2735–36.
          Further, Brown and Stevens illuminate the error in the majority
    opinion’s decision to proclaim an entirely new, content-based restriction on
    students’ First Amendment rights.           Although acknowledging that the
    government has certain powers to protect children from harm, the Supreme
    Court in Brown expressly held that this “does not include a free-floating power
    to restrict the ideas to which children may be exposed.” 131 S. Ct. at 2736. In
    so holding, the Court echoed the principles announced in Stevens and rejected
    the argument that the state is empowered to carve out new “categorical
    exemptions” to the First Amendment’s protections (e.g., obscenity) that are
    solely applicable to minors absent a “longstanding tradition” of restricting such
    speech. Id. In direct contradiction to these principles, however, the majority
    opinion here affords state officials with precisely such a “free-floating power”
    by effectively permitting them to regulate an unprecedented and content-based
    category of speech, i.e., “threatening,” “harassing,” and “intimidating” speech
    that is directed at the school community. Yet, the majority opinion cites no
    “longstanding tradition” in this country of “specially restricting” children’s
    ability to engage off campus in “threatening,” “harassing,” or “intimidating”
    speech. Nor could it. See id. (“California’s argument would fare better if there
    were a longstanding tradition in this country of specially restricting children’s
    access to depictions of violence, but there is none.”); Stevens, 559 U.S. at 469
    (“But we are unaware of any similar tradition excluding depictions of animal
    cruelty from ‘the freedom of speech’ codified in the First Amendment, and the
    Government points us to none.”). To the extent the majority opinion posits this
    
    
    
    
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    category of speech is without redeeming social value 11 or that its risks
    outweigh its costs, the Supreme Court has flatly rejected such a rationale for
    carving out new categories of unprotected speech. See Stevens, 559 U.S. at 470
    (“The First Amendment’s guarantee of free speech does not extend only to
    categories of speech that survive an ad hoc balancing of relative social costs
    and benefits.”). In this connection, the Court in Brown likewise held that
    majoritarian abhorrence for a category of speech (i.e., violent speech) will not
    justify a categorical restriction upon that type of speech.     See Brown, 131 S.
    Ct. at 2733 (“Under our Constitution, esthetic and moral judgments about art
    and literature . . . are for the individual to make, not for the Government to
    decree, even with the mandate or approval of a majority.” (internal quotation
    marks and citation omitted)). Moreover, contrary to the majority opinion’s
    approach, the Supreme Court in both Brown and Stevens emphasized that the
    “historic and traditional categories” of unprotected speech (e.g., fighting words,
    obscenity) are “well defined and narrowly limited.” See Brown, 131 S. Ct. at
    2733; Stevens, 559 U.S. at 468-69. Here, far from announcing a “narrow” or
    “well defined” restriction on speech, the majority opinion simply declares that
    schools may regulate off-campus student speech that its invented layperson
    might consider “threatening,” “harassing,” or “intimidating.”           As detailed
    below, the breadth of these content-based restrictions will leave students to
    speak at their own peril away from school, because school officials will be
    unconstrained due to the majority opinion’s failure to provide any specific or
    determinate definition of “threatening,” “harassing,” or “intimidating.”
    
    
    
    
          11  However, as explained above, Bell’s speech clearly had “social value” as it
    constituted speech on a matter of public concern.
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                                                 B.
           The Court’s opinion in Reno v. American Civil Liberties Union, 
    521 U.S. 844
     (1997), further reveals the flaws in the majority opinion’s holding that
    schools may regulate students’ off-campus online speech, like Bell’s. Reno was
    the first significant First Amendment case specifically pertaining to the
    Internet to reach the Supreme Court, and concerned a facial challenge to a
    congressional statute, the Communications Decency Act of 1996 (“CDA”),
    which was aimed at protecting minors from “indecent” and “patently offensive”
    material on the Internet by prohibiting the transmission of those materials to
    minors. 521 U.S. at 858-59. In striking down the CDA as violative of the First
    Amendment, the Court articulated a number of principles that are directly
    pertinent to the instant case.
           First, Reno reveals that the majority opinion here is in error in
    concluding that the advent of the Internet and other technologies necessitates
    expanding schools’ authority to regulate students’ off-campus speech. See Maj.
    Op. p. 19. In direct contradiction to the majority opinion’s logic, the Court in
    Reno held that Supreme Court precedents “provide no basis for qualifying the
    level of First Amendment scrutiny that should be applied to [the Internet].”
    Id. at 870. Although the Court previously had recognized that special factors
    justify greater regulation of speech expressed in broadcast media, see, e.g., FCC
    v. Pacifica Foundation, 
    438 U.S. 726
     (1978), the Court explicitly found that
    “[t]hose factors are not present in cyberspace.”              Reno, 521 U.S. at 868. 12
    
    
    
           12The Court in Brown echoed this principle in observing that government should not
    be afforded greater deference to restrict speech when new communication technologies
    emerge. 131 S. Ct. at 2733 (“[W]hatever the challenges of applying the Constitution to ever-
    advancing technology, ‘the basic principles of freedom of speech and the press, like the First
    Amendment’s command, do not vary’ when a new and different medium for communication
    appears.”) (quoting Joseph Burstyn, Inc. v. Wilson, 
    343 U.S. 495
    , 503 (1952)); accord Citizens
    United v. Federal Election Comm’n, 
    558 U.S. 310
    , 326 (2010) (“Courts, too, are bound by the
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    Nevertheless, the majority opinion overlooks these unequivocal statements by
    the Supreme Court. See, e.g., Maj. Op. p. 19 (concluding that “[t]he advent of
    [the Internet and other] technologies and their sweeping adoption by students
    present new and evolving challenges for school administrators, confounding
    previously delineated boundaries of permissible regulations”).
          In addition, the Court’s analysis in Reno reveals how the majority
    opinion’s ill-devised framework for regulating minors’ off-campus Internet
    speech would be too vague altogether for the First Amendment to tolerate. The
    Court in Reno took special issue with the vagueness of the terms that the CDA
    utilized to describe the proscribed speech. Id. at 871. For example, the Court
    emphasized that the statute did not define either “indecent” material or
    material that “in context, depicts or describes, in terms patently offensive as
    measured by contemporary community standards, sexual or excretory
    activities or organs.” Id. As the Court observed, “[g]iven the absence of a
    definition of either term, this difference in language will provoke uncertainty
    among speakers about how the two standards relate to each other and just
    what they mean. Could a speaker confidently assume that a serious discussion
    about birth control practices, homosexuality, the First Amendment issues
    raised by the Appendix to our Pacifica opinion, or the consequences of prison
    rape would not violate the CDA?” Id.
          Similar vagueness concerns drove Justice Alito to conclude that the
    California “violent video game” regulation in Brown violated the Constitution.
    Brown, 131 S. Ct. at 2743-46 (Alito, J., joined by Roberts, C.J., concurring in
    the judgment). As Justice Alito observed, one of the elements defining the
    
    
    
    First Amendment. We must decline to draw, and then redraw, constitutional lines based on
    the particular media or technology used to disseminate political speech from a particular
    speaker.”).
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    proscribed violent video games was whether a “reasonable person, considering
    [a] game as a whole,” would find that it “appeals to a deviant or morbid interest
    of minors.” Id. at 2745. However, as Justice Alito observed, the “prevalence of
    violent depictions in children’s literature and entertainment creates numerous
    opportunities for reasonable people to disagree about which depictions may
    excite ‘deviant’ or ‘morbid’ impulses.” Id. at 2746.
          Here, the en banc majority opinion similarly announces a new,
    categorical restriction upon students’ off-campus speech that fails to “give
    people of ordinary intelligence fair notice of what is prohibited.” See id. at
    2743. Specifically, the majority opinion holds that school officials may punish
    students’ off-campus speech when (i) it is intended to be heard by the school
    community; (ii) could be perceived by a layperson as “threatening,” harassing,”
    and “intimidating,”; and (iii) satisfies the Tinker “substantial-disruption”
    framework. See Maj. Op. pp. 25–26. As with the statute struck down in Reno,
    however, each one of these three prongs to the majority opinion’s framework
    contains defects that fail to provide students, like Bell, with adequate notice of
    when their off-campus speech crosses the critical line between protected and
    punishable expression. First, the majority opinion’s focus on whether the
    student “intended” his speech to reach the school community significantly
    burdens the ability of students to engage in online speech, because virtually
    any speech on the Internet can reach members of the school community. See
    Reno, 521 U.S. at 870 (observing that the Internet permits “any person . . . [to]
    become a town crier with a voice that resonates farther than it could from any
    soapbox”). How, then, can a student be certain that his off-campus blog posting
    will not be read by members of the school community and thereby be deemed
    by school officials to be “intentionally direct[ed] at the school community”? As
    a result of the ambiguities in the majority opinion’s framework, he simply
    
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    cannot.     See id. (“Through the use of Web pages, mail exploders, and
    newsgroups, the same individual can become a pamphleteer.”).
           Second,     the     majority     opinion’s     “threatening,       harassing,      and
    intimidating” test suffers from the precise same ambiguities that drove the
    Court to strike down the CDA in Reno. As with the CDA, the majority opinion
    fails to provide any meaningful definition of what constitutes “threatening,”
    “harassing,” or “intimidating” speech. Rather, the majority opinion merely
    concludes that if a “layperson would understand” 13 speech to qualify as
    “threatening,” “harassing,” and “intimidating,” then that speech is regulable
    under Tinker. In so holding, the majority opinion fails to apprehend that
    reasonable minds may differ about when speech qualifies as “threatening,”
    harassing,” or “intimidating.”          As the Supreme Court’s First Amendment
    precedents make clear, “it is . . . often true that one man’s vulgarity is another’s
    lyric,” Cohen v. California, 
    403 U.S. 15
    , 25 (1971), and that the very same
    words may simultaneously be perceived as repulsive to some and political to
    others, see Snyder, 562 U.S. at 444–45 (“Westboro may have chosen the picket
    location to increase publicity for its views, and its speech may have been
    particularly hurtful to Snyder. That does not mean that its speech should be
    afforded less than full First Amendment protection under the circumstances of
    
    
           13 Unfortunately, the majority opinion provides virtually no details about the identity
    of its apocryphal layperson. In any event, I am dubious that a school board may punish
    students for making statements at home and on the Internet that the most sensitive of
    listeners in society would find to be “threatening,” “harassing,” or “intimidating.” See
    Ashcroft, 542 U.S. at 674 (Stevens, J. concurring) (“I continue to believe that the Government
    may not penalize speakers for making available to the general World Wide Web audience
    that which the least tolerant communities in America deem unfit for their children’s
    consumption.”). Nevertheless, by permitting school officials to punish off-campus speech like
    Bell’s pursuant to Tinker, the majority opinion announces a precedent whereby the First
    Amendment rights of minors outside of school are “only . . . as strong as the weakest, or at
    least the most thin-skinned, listener in a crowd.” Cuff ex re. B.C. v. Valley Cent. Sch. Dist.,
    
    677 F.3d 109
    , 120 (2d Cir. 2012) (Pooler, J., dissenting).
    
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    this case.”). Thus, “[g]iven the vague contours of the coverage of the [majority
    opinion’s framework], it [will] unquestionably silence[] some speakers whose
    messages would be entitled to constitutional protection.” Reno, 521 U.S. at
    874.
           Third, the aforementioned concerns are exacerbated by the fact that the
    Tinker standard itself could be viewed as somewhat vague. 14 Tinker permits
    schools to regulate on-campus expressive activities not only when the speech,
    in fact, causes a substantial disruption, but also when school officials can
    “reasonably forecast” such a disruption, Tinker, 393 U.S. at 514.                If this
    standard were applied off campus, how can a student or a student’s parents
    know with any degree of certainty when off-campus online speech can be
    “forecasted” to cause a “substantial disruption”? Although Tinker is not a
    completely toothless standard, see A.M. ex rel. McAllum v. Cash, 
    585 F.3d 214
    ,
    221 (5th Cir. 2009), its framework inherently requires guesswork about how a
    third-party school official will prophesize over the effect of speech. Thus, in
    light of the majority opinion, before a student drafts an email or writes a blog
    entry, he hereinafter will be required to conjecture over whether his online
    speech might cause a “disruption” that is “substantial” in the eyes of school
    officials, or, alternatively, whether a school official might reasonably portend
    that a substantial disruption might happen. In this way, the majority opinion
    erroneously defines the contours of protected speech with reference to the
    potential reactions of listeners. See Beckerman v. City of Tupelo, 
    664 F.2d 502
    ,
    509 (5th Cir. 1981) (observing that the Supreme Court’s cases concerning the
    “hecklers’ veto” show that it “is not acceptable for the state to prevent a speaker
    
    
           14As explained below, this framework makes sense for student speech occurring on
    campus, where school officials have competing interests in maintaining conduct in the
    schools. However, this standard is inappropriate where, as here, the school’s interest is
    comparatively attenuated.
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    from exercising his constitutional rights because of the reaction to him by
    others”).
          What will be the direct consequence of these various layers of vagueness
    upon students’ First Amendment freedoms? “[I]t will operate[] to chill or
    suppress the exercise of those freedoms by reason of vague terms or overbroad
    coverage.” See Nevada Comm’n on Ethics v. Carrigan, 
    131 S. Ct. 2343
    , 2353
    (2011) (Kennedy, J. concurring). Indeed, for students, whose performance at
    school largely determines their fate in the future, even the specter of
    punishment will likely deter them from engaging in off-campus expression that
    could be deemed controversial or hurtful to school officials. Accord Reno, 521
    U.S. at 871–72 (“The vagueness of such a regulation raises special First
    Amendment concerns because of its obvious chilling effect on free speech.”).
    Such a burden on student’s expressive activities simply cannot be reconciled
    with the long-established principle that “the point of all speech protection . . .
    is to shield [from censorship] just those choices of content that in someone’s
    eyes are misguided, or even hurtful.” Hurley v. Irish–American Gay, Lesbian
    and Bisexual Group of Boston, Inc., 
    515 U.S. 557
    , 574 (1995).
                                           C.
          Further, by adopting a rule that focuses on whether a “layperson” would
    perceive Bell’s speech as “threatening,” “harassing,” and “intimidating,” the
    majority opinion also ignores Supreme Court case law that demands a more
    burdensome showing upon the government before levying penalties upon a
    speaker based on the content of his speech.
          Amongst     the    most   consistent   principles   of    First   Amendment
    jurisprudence has been the need for “[e]xacting proof requirements” before
    imposing liability for speech. See Illinois ex rel. Madigan v. Telemarketing
    Associates, Inc., 
    538 U.S. 600
    , 620 (2003). For example, the Supreme Court
    
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    has explicitly rejected arguments permitting tort liability to be imposed for
    speech pertaining to public figures simply because it “is patently offensive and
    is intended to inflict emotional injury.” Falwell, 485 U.S. at 50. Rather, in
    order to “give adequate ‘breathing space’ to the freedoms protected by the First
    Amendment,” the Court has held that a public figure must prove not only
    falsity but also actual malice. Id. at 56. Similarly, in the criminal context,
    “mens rea requirements . . . provide ‘breathing room’ for more valuable speech
    by reducing an honest speaker’s fear that he may accidentally incur liability
    for speaking.” United States v. Alvarez, 
    132 S. Ct. 2537
    , 2553 (2012) (Breyer,
    J., concurring in the judgment). Thus, in Brandenburg v. Ohio, 
    395 U.S. 444
    (1969), the Supreme Court reversed the conviction of a Ku Klux Klan leader
    for threatening “revengeance” if the “suppression” of the white race continued,
    relying on “the principle that the constitutional guarantees of free speech and
    free press do not permit a State to forbid or proscribe advocacy of the use of
    force or of law violation except where such advocacy is directed to inciting or
    producing imminent lawless action and is likely to incite or produce such
    action.” Id. at 447 (emphasis added); see also Noto v. United States, 
    367 U.S. 290
    , 297–98 (1961) (“[T]he mere abstract teaching of . . . the moral propriety or
    even moral necessity for a resort to force and violence, is not the same as
    preparing a group for violent action and steeling it to such action.”).
    Subsequently, the Court applied Brandenberg’s focus on the “intent” of the
    speaker to hold that a speaker may not be held liable for damages in a civil
    case even when his remarks “might have been understood . . . as intending to
    create a fear of violence.” N.A.A.C.P. v. Claiborne Hardware Co., 
    458 U.S. 886
    ,
    904, 927 (1982) (emphasis added).
          Applying these well-established First Amendment principles, the
    Supreme Court in Virginia v. Black, 
    538 U.S. 343
     (2003), struck down a
    
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    Virginia statute that criminalized burning a cross in public “with the intent of
    intimidating any person,” and which provided that the public burning of a cross
    “shall be prima facie evidence of an intent to intimidate.” Id. at 347–48.
    Although cross burning is “widely viewed as a signal of impending terror,” id.
    at 391 (Thomas, J., concurring), “in light of [its] long and pernicious history as
    a signal of impending violence,” id. at 363 (opinion of O’Connor, J.), a plurality
    of the Court held that a subjective intent requirement was necessary in order
    to distinguish “constitutionally proscribable intimidation” from “core political
    speech,” id. at 365–66. “Intimidation in the constitutionally proscribable sense
    of the word is a type of true threat, where a speaker directs a threat to a person
    or group of persons with the intent of placing the victim in fear of bodily harm
    or death.” Id. at 360 (emphasis added). As the plurality explained, the prima
    facie evidence provision of the statute was facially unconstitutional because it
    “ignore[d] all the contextual factors that are necessary to decide whether a
    particular cross burning was intended to intimidate. The First Amendment
    does not permit such a short cut.” Id. at 367. In other words, the prima facie
    evidence provision “strip[ped] away the very reason a state may ban cross
    burning with the intent to intimidate.” Id. at 365.
          Recently, in Elonis v. United States, 
    135 S. Ct. 2001
     (2015), the Supreme
    Court was presented with the opportunity to revisit its reasoning in Virginia
    v. Black and clarify whether or not the First Amendment requires a speaker to
    have a “subjective intent” to threaten an individual before the government can
    impose criminal penalties for a threat. Id. at 2004 (“The question is whether
    [18 U.S.C. § 875(c)] . . . requires that the defendant be aware of the threatening
    nature of the communication, and—if not—whether the First Amendment
    requires such a showing.”). The Court, however, avoided this constitutional
    question by deciding the case on narrower grounds, viz., that a jury instruction
    
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    explaining that petitioner could be convicted upon a showing of negligence was
    inconsistent with the statute’s implicit mens rea requirement. Id. at 2012
    (“The jury was instructed that the Government need only prove that a
    reasonable person would regard Elonis’s communications as threats, and that
    was error. . . . Given our disposition, it is not necessary to consider any First
    Amendment issues.”).         Specifically, the Court outright rejected the
    government’s contention that the statute permitted petitioner to be convicted
    if he (i) knew the “contents and context” of his speech and (ii) “a reasonable
    person would have recognized that the [speech] would be read as genuine
    threats.” Id. at 2011. While recognizing that such a “‘reasonable person’
    standard is a familiar feature of civil liability in tort law,” the Court concluded
    that the standard is “inconsistent with the conventional requirement for
    criminal conduct—awareness of some wrong doing.” Id. (internal quotation
    marks omitted).
          Applying the foregoing principles to the instant case, the majority
    opinion errs by making the scope of Bell’s First Amendment rights outside of
    school contingent upon whether a “layperson” might interpret his speech to be
    “threatening,” “harassing,” and “intimidating,” see Maj. Op. pp. 26–27, and
    whether a school official might “reasonably” forecast a substantial disruption
    based on his speech, see Maj. Op. pp. 30–31. The majority opinion’s test
    effectively amounts to the very kind of negligence standard that the Supreme
    Court has rejected for determining whether a speaker may be held liable on
    the basis of his words. See, e.g., Claiborne Hardware Co., 458 U.S. at 928–29;
    Brandenburg, 395 U.S. at 447. Further, by permitting Bell to be punished
    solely on the basis that a third-party might consider his speech “intimidating”
    or “threatening,” the majority opinion ignores the Court’s explanation in Black
    that “[i]ntimidation in the constitutionally proscribable sense of the word is a
    
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    type of true threat, where a speaker directs a threat to a person or group of
    persons with the intent of placing the victim in fear of bodily harm or death.”
    538 U.S. at 360 (emphasis added). Instead, perhaps conceding sub silentio that
    Bell’s speech does not satisfy the demanding “true threat” standard described
    in Black, the majority opinion circumvents this issue altogether by creating an
    entirely new and diluted test that renders speech unprotected so long as its
    invented layperson might view the speech as “intimidating,” “harassing,” and
    “threatening,” despite the fact that such speech does not constitute a “true
    threat.” See Bell v. Itawamba Cnty. Sch. Bd., 
    774 F.3d 280
    , 300–03 (5th Cir.
    2014) (explaining that Bell’s song did not constitute a “true threat,” “as
    evidenced by, inter alia, its public broadcast as a rap song, its conditional
    nature, and the reactions of its listeners”). Moreover, the majority opinion’s
    approach is especially problematic in light of the critical fact that Bell’s speech
    addresses a matter of public concern. In cases involving speech addressing
    public figures and matters of public import, the Court has consistently applied
    a stricter evidentiary burden before permitting liability to be imposed on a
    speaker on the basis of his speech. See, e.g., Falwell, 485 U.S. at 56 (holding
    that “public figures and public officials” must prove “actual malice” in addition
    to falsity before recovering for intentional infliction of emotional distress on
    the basis of speech directed at them); Sullivan, 376 U.S. at 279–80 (holding
    that the First Amendment “prohibits a public official from recovering damages
    for a defamatory falsehood relating to his official conduct unless he proves that
    the statement was made with ‘actual malice’”). Here, in sharp contrast, the
    majority opinion announces a constitutional rule whereby students, like Bell,
    may be held liable for their off-campus speech that criticizes official misconduct
    based largely on the reactions of the very officials in question or the perception
    of the majority opinion’s invented “layperson.” Such a flimsy standard simply
    
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    cannot be squared with the foregoing First Amendment precedents. See also
    Pacifica Foundation, 438 U.S. at 745–46 (“[T]he fact that society may find
    speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the
    speaker’s opinion that gives offense, that consequence is a reason for according
    it constitutional protection.”).
                                            III.
          In ultimately holding that the Tinker framework applies to off-campus
    speech like Bell’s, the majority opinion ignores that Tinker’s holding and its
    sui generis “substantial-disruption” framework are expressly grounded in “the
    special characteristics of the school environment.” Tinker v. Des Moines Indep.
    Cmty. Sch. Dist., 
    393 U.S. 503
    , 506 (1969). In Tinker, the Court confronted the
    question whether school officials may, consistent with the First Amendment,
    restrict students’ expressive activities that occur at school. Id. Specifically,
    the students in Tinker were suspended for wearing to school armbands that
    expressed their opposition to the Vietnam War. Id. at 504. While recognizing
    that students do not “shed their constitutional rights to freedom of speech or
    expression at the schoolhouse gate,” id. at 506, the Court also observed that
    students’ exercise of their First Amendment rights at school must be calibrated
    against the competing need of school officials “to prescribe and control conduct
    in the schools,” id. at 507 (emphasis added). To reconcile the interests at stake
    that may collide when student speech occurs on campus, the Court articulated
    a rule that has become the lodestar for evaluating the scope of students’ on-
    campus First Amendment rights ever since: while on campus, a student is free
    to “express his opinions, even on controversial subjects, if he does so without
    ‘materially and substantially interfer(ing) with the requirements of
    appropriate discipline in the operation of the school’ and without colliding with
    
    
    
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    the rights of others.” Id. at 513 (quoting Burnside v. Byars, 
    363 F.2d 744
    , 749
    (5th Cir. 1966)).
          The Supreme Court’s holding in Tinker is expressly based upon the
    “special characteristics of the school environment,” id. at 506, and the need to
    defer to school officials’ authority “to prescribe and control conduct in the
    schools,” id. at 507.     Indeed, the very analytic content of the resulting
    “substantial-disruption” framework evinces that the Court was solely
    concerned with the potentially disruptive consequences of speech by students
    that occurs on campus, where school officials and fellow students may be
    directly affected. See, e.g., id. at 514 (“[The students] neither interrupted
    school activities nor sought to intrude in the school affairs or the lives of others.
    They caused discussion outside of the classrooms, but no interference with
    work and no disorder.”).      Moreover, the Court’s later school-speech cases
    emphasize that the Tinker framework is limited to speech occurring within the
    school environment. For example, according to the Court’s decision in Bethel
    School District No. 403 v. Fraser, 
    478 U.S. 675
     (1986), Tinker rests on the
    premise that “the constitutional rights of students in public schools are not
    automatically coextensive with the rights of adults in other settings.” Id. at
    682 (emphasis added); see also id. at 688 n.1 (Brennan J., concurring in
    judgment) (stating that the Court’s student-speech precedents “obviously do
    not [apply] outside of the school environment” and also observing that if the
    plaintiff in Fraser “had given the speech [for which he was punished] outside
    of the school environment, he could not have been penalized simply because
    [school] officials considered his language to be inappropriate”). Subsequently,
    in Hazelwood School District v. Kuhlmeier, 
    484 U.S. 260
     (1988), the Court
    described its decision in Tinker as “address[ing] educators’ ability to silence a
    student’s personal expression that happens to occur on the school premises.”
    
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    Id. at 271 (emphasis added); see also id. at 266 (observing that schools may
    regulate some on-campus speech “even though the government could not
    censor similar speech outside the school”).
          Most recently, in Morse, Justice Alito’s controlling concurrence observed
    that Tinker allows school officials to regulate “in-school student speech . . . in
    a way that would not be constitutional in other settings.” 551 U.S. at 422
    (Alito, J. concurring).      Justice Alito further emphasized the historically
    significant distinction between on-campus and off-campus expression by
    comparing the unique harms of speech that occurs within the schoolyard as
    opposed to outside of school: “School attendance can expose students to threats
    to their physical safety that they would not otherwise face. Outside of school,
    parents can attempt to protect their children in many ways and may take steps
    to monitor and exercise control over the persons with whom their children
    associate.” Id. at 424 (Alito, J. concurring). In this regard, Justice Alito also
    rejected the contention that school officials “stand in the shoes of the students’
    parents,” explaining that “[i]t is a dangerous fiction to pretend that parents
    simply delegate their authority—including their authority to determine what
    their children may say and hear—to public school authorities.” Id. Further,
    Justice Alito observed that he joined the majority opinion on the understanding
    that the Court’s holding does not justify “any other speech restriction” based
    on the “special characteristics” of the school environment beyond those already
    recognized in the Court’s prior student-speech cases. Id. at 423. Indeed, in
    narrowly limiting the reach of the Court’s holding, Justice Alito characterized
    school officials’ regulation of the student-speech at issue in that case 15 as
    
    
          15 In Morse, the Court held that the First Amendment did not prevent school officials
    from punishing a student who unfurled at a school-sanctioned event a banner that reasonably
    could be perceived as promoting illegal drug use. 551 U.S. at 396. Notably, the majority
    opinion in this case overstates Morse’s narrow holding by describing that holding as
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    “standing at the far reaches of what the First Amendment permits.” Id. at 425.
    As the foregoing demonstrates, Morse and the Court’s other post-Tinker
    precedents make crystal clear what the majority opinion and some of our sister
    circuits’ decisions 16 fail to follow: Tinker does not authorize school officials to
    regulate student speech that occurs off campus and not at a school-sponsored
    event, where the potential “collision” of interest upon which Tinker’s holding
    pivots simply is not present.
           Further, even assuming arguendo, without deciding, schools possess
    some authority to regulate students’ off-campus speech under certain
    circumstances, the majority opinion errs in deeming the Tinker framework as
    the appropriate standard to delineate the scope of that authority. In reaching
    this conclusion, the majority opinion’s logic is flawed from the very start. The
    majority opinion oddly begins its analysis by citing our opinion in Morgan v.
    Swanson, 
    659 F.3d 359
     (5th Cir. 2011) (en banc), for the proposition that the
    threshold task facing the en banc court is “categorizing the student speech at
    issue.” Id. at 375. Without ever mentioning that Morgan was a case involving
    
    
    
    
    extending to “grave and unique threats to the physical safety of students, in particular speech
    advocating illegal drug use.” See Maj. Op. p. 15 (emphasis added). Contrary to the majority
    opinion’s description, Justice Alito’s concurrence explicitly stated that the Court’s holding
    was limited to the specific speech at issue in that case, viz., speech advocating drug use at a
    school event. See Morse, 551 U.S. at 425 (Alito, J. concurring).
    
           16 For example, in concluding that Tinker applies to off-campus speech, the Eighth
    Circuit committed the same fundamental misreading of Tinker that the district court
    committed in the instant case. D.J.M. ex rel D.M. v. Hannibal Pub. Sch. Dist. No. 60, 
    647 F.3d 754
    , 765 (8th Cir. 2011). Specifically, the Eighth Circuit read wholly out of context the
    Court’s statement in Tinker that schools may regulate student speech “in class or out of it,”
    393 U.S. at 513 (emphasis added), in order to hold that the school district in that case was
    permitted to punish a student for his off-campus online speech pursuant to Tinker’s
    substantial-disruption framework. The majority opinion likewise commits the same error in
    emphasizing this very language in reasoning that Tinker applies to off-campus speech. See
    Maj. Op. p. 15.
    
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    qualified immunity for school officials’ suppression of on-campus speech, 17 the
    majority opinion then proceeds to determine whether it should evaluate Bell’s
    claim under the Tinker framework or under one of the other categorical
    exemptions for student speech that the Supreme Court or this court has
    recognized. See Maj. Op. pp. 17–18. Then, after determining that the School
    Board here did not punish Bell because his speech was lewd (Fraser) or school-
    sponsored (Hazelwood) or threatened a Columbine-style mass shooting
    (Ponce), the majority opinion summarily concludes via process-of-elimination
    that the Tinker framework must be the appropriate framework for evaluating
    whether Bell’s speech is protected or not. See Maj. Op. p. 18 (“We therefore
    analyze Bell’s speech under Tinker.”). But the majority opinion suspiciously
    neglects to note that not a single one of these precedents has ever been applied
    by the Supreme Court or our Circuit 18 to regulate a student’s off-campus
    
    
    
           17The majority opinion in Morgan ultimately held that the school officials’ conduct of
    prohibiting students from passing out religious messages on campus violated the
    constitution. 659 F.3d at 364 (explaining that Judge Elrod’s opinion represented the majority
    opinion on this point). However, the majority of the en banc court found that the right
    announced was not “clearly established.” Id. The reason that “categorization” of the speech
    was important in that case was because of Establishment Clause concerns if the speech could
    be perceived as school-sponsored. Id. at 375. The analysis there has little to do with the
    matters at issue here.
    
           18 The majority opinion mischaracterizes our precedents by suggesting that we
    previously have held that Tinker applies to purely off-campus speech. See Maj. Op. pp. 15,
    22. In Shanley, we held that school officials violated the First Amendment when they
    punished students for selling underground newspapers “near but outside the school premises
    on the sidewalk of an adjoining street, separated from the school by a parking lot.” 462 F.2d
    at 964. Although we held that the speech in question did not meet the Tinker standard, id.
    at 970, we did not hold that Tinker necessarily can be applied to uphold the punishment of a
    student for purely off-campus speech.
           The same is true of our decision in Sullivan v. Houston Independent School District,
    
    475 F.2d 1071
     (5th Cir. 1973). In Sullivan, the court did not apply the Tinker substantial-
    disruption test to assess whether school officials violated the First Amendment. The Sullivan
    court recognized that there is nothing per se unreasonable about requiring a high school
    student to submit written material to school authorities prior to distribution on campus or
    resulting in a presence on campus, and that it could not be seriously urged that the school’s
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    Internet speech, like Bell’s.           Nevertheless, the majority opinion simply
    assumes that those precedents apply under these circumstances without first
    conducting any meaningful analysis to justify its logic. In other words, by
    comparing apples to oranges, the majority opinion puts the proverbial cart
    before the horse.        Indeed, as explained above, the Tinker standard was
    invented, in part, to counteract the consequences of speech that actually occurs
    within the school environment and to take account of school officials’ competing
    interest to “control conduct in the schools.”              See Tinker, 393 U.S. at 507.
    Specifically, in Tinker, the competing state interest was in avoiding the
    disruptive consequences of speech that occurs within school.                            See id.
    Accordingly, the Supreme Court crafted a specific level of scrutiny (the
    “substantial-disruption” test) to evaluate restrictions on speech within school
    that strikes a balance between the competing interests at stake.                           Even
    assuming arguendo schools had some authority to punish students’ off-campus
    speech, it is therefore simply a non sequitur for the majority opinion to
    reflexively assume that the same analysis should regulate the scope of schools’
    authority to punish students’ expression off campus, where the consequences
    
    
    
    prior submission rule is unconstitutionally vague or overbroad. 475 F.2d at 1076 (citing
    Shanley, 462 F.2d at 960; Pervis v. LaMarque Indep. Sch. Dist., 
    466 F.2d 1054
     (5th Cir.
    1972)). Instead, the court held that the school principal had disciplined a student for failure
    to comply with the school's rules requiring prior submission to the school principal of all
    publications, not sponsored by the school, which were to be distributed on the campus or off
    campus in a manner calculated to result in their presence on the campus. Id. at 1073, 1076.
    The student was disciplined for twice selling newspapers at the entrance of the school
    campus, to persons entering therein, without making prior submission of the papers, and for
    using profanity towards the principal (“the common Anglo–Saxon vulgarism for sexual
    intercourse”) and in the presence of the principal’s assistants (specifically, “I don't want to go
    to this goddamn school anyway”). Id. at 1074. Thus, notwithstanding the Sullivan court’s
    references to Tinker in that decision, that opinion did not hold that the Tinker substantial-
    disruption test applies to off-campus speech.
            In sum, contrary to its suggestion that its decision logically follows from our prior
    precedents, the majority’s opinion today is the first time our circuit has ever held that school
    officials may punish students’ purely off-campus speech pursuant to the Tinker framework.
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    of the speech in question and the constitutional interests at stake are simply
    not the same as in Tinker.
          The majority opinion’s flawed logic in this regard stems naturally from
    a more fundamental error: the majority opinion fails to take seriously the
    significance of the various constitutional interests that are implicated by its
    decision to expand Tinker’s reach. As detailed above, the particular facts of
    this case principally concern the First Amendment right of students to speak
    out on “matters of public concern” when they are away from school by utilizing
    the unrivaled power of the Internet to make those messages heard.            But
    narrowly focusing on this issue alone ignores the constellation of other
    constitutional interests that the majority opinion will negatively impact. For
    example, even when their off-campus expression does not have a “political” or
    “religious” dimension, children still maintain “significant” First Amendment
    rights, Brown, 131 S. Ct. at 2735–36, which indisputably include a right to
    express disrespect or disdain for their teachers when they are off campus. See
    Kime v. United States, 
    459 U.S. 949
    , 951 (1982) (“[T]he First Amendment does
    not permit a legislature to require a person to show his respect for the flag by
    saluting it. The same constitutional principle applies when the legislature,
    instead of compelling respect for the flag, forbids disrespect.”). Further, for
    purposes of the First Amendment, it is simply irrelevant whether prevailing
    social mores deem a child’s disrespect for his teacher to be contemptible. “The
    history of the law of free expression is one of vindication in cases involving
    speech that many citizens may find shabby, offensive, or even ugly.” See
    United States v. Playboy Entertainment Grp., 
    529 U.S. 803
    , 826 (2000).
          Moreover, the majority opinion’s extension of Tinker to off-campus
    speech additionally burdens the long-established constitutional interest of
    parents in the rearing of their children. The Supreme Court has “consistently
    
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    recognized that the parents’ claim to authority in their own household to direct
    the rearing of their children is basic in the structure of our society.” Ginsberg
    v. New York, 
    390 U.S. 629
    , 639 (1968); see also, e.g., Troxel v. Granville, 
    530 U.S. 57
    , 65 (2000) (observing that “the interest of parents in the care, custody,
    and control of their children . . . is perhaps the oldest of the fundamental liberty
    interests recognized by the Court”); Pierce v. Soc’y of Sisters, 
    268 U.S. 510
    , 535
    (1925) (“The child is not the mere creature of the state; those who nurture him
    and direct his destiny have the right, coupled with the high duty, to recognize
    and prepare him for additional obligations.”).        This fundamental right of
    parents indisputably includes the right to inculcate their children with
    ideologies and values that the state or mainstream society may consider
    repugnant. See, e.g., Meyer v. Nebraska, 
    262 U.S. 390
    , 403 (1923) (holding that
    a war-era law banning teaching of German language violated parents’
    substantive due process rights); accord Morse, 551 U.S. at 424 (Alito, J.,
    concurring) (observing that “[i]t is a dangerous fiction to pretend that parents
    simply delegate their authority—including their authority to determine what
    their children may say and hear—to public school authorities”). The majority
    opinion’s extension of the Tinker framework will inevitably frustrate this
    constitutional right, because school officials will hereinafter be empowered to
    supplant parents’ control over their children’s off-campus speech that is critical
    of their teachers.
          In addition, authorizing schools to regulate students’ off-campus speech
    likewise burdens the constitutional interest of fellow citizens in hearing
    students’ off-campus speech.      Courts have long recognized that the First
    Amendment protects not only the right to speak but also the right to receive
    speech from others. See, e.g., First Nat’l Bank of Bos. v. Bellotti, 
    435 U.S. 765
    ,
    783 (1978) (stating that the “First Amendment . . . afford[s] public access to
    
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    discussion, debate, and the dissemination of information and ideas”); Martin
    v. City of Struthers, 
    319 U.S. 141
    , 143 (1943) (explaining that the First
    Amendment “embraces the right to distribute literature . . . and necessarily
    protects the right to receive it”); Rossignol v. Voorhaar, 
    316 F.3d 516
    , 522 (4th
    Cir. 2003) (“The First Amendment . . . protects both a speaker’s right to
    communicate information and ideas to a broad audience and the intended
    recipients’ right to receive that information and those ideas.” (emphasis in
    original)).   The facts of the instant case poignantly illustrate how the
    suppression of students’ off-campus speech will burden the First Amendment
    right of other citizens to receive that speech. As detailed above, Bell authored
    and publicized his rap song in an effort to raise awareness of a crucial issue to
    members of his community, viz., the sexual harassment of female students by
    male school officials. Receiving this information would be critically important
    to community members, particularly parents of female students at Itawamba,
    in order to ensure that such conduct ceased and did not recur. 19 Nevertheless,
    by endorsing the School Board’s punishment of Bell, the majority’s opinion will
    empower school officials to censor other students’ efforts to inform fellow
    citizens of information that they have the right—and the urgent need—to
    receive. Cf. Lamont v. Postmaster General, 
    381 U.S. 301
    , 308 (1965) (Brennan,
    J. concurring) (“The dissemination of ideas can accomplish nothing if otherwise
    willing addressees are not free to receive and consider them. It would be a
    barren marketplace of ideas that had only sellers and no buyers.”).
          Exacerbating the violence committed against these constitutional
    interests is the unprecedented amount of deference that the majority opinion
    
    
          19 As explained above, allegations that coaches sexually harassed students were
    nothing new at Itawamba Agricultural High School when Bell composed his rap song. In
    2009, Itawamba coach Bobby Hill was arrested and accused of sending sexually explicit text
    messages to a minor student.
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    affords school boards in disciplining off-campus speech pursuant to Tinker.
    Again, Maj. Op. p. 27, and again, Maj. Op. p. 28, and again, Maj. Op. p. 29, the
    majority opinion emphasizes the extent of “deference” that, in its view, courts
    are required to provide school board disciplinary decisions under Tinker.
    Contrary to the majority opinion’s approach, however, we do not “defer” to
    schools in interpreting and applying the Constitution.             “The authority
    possessed by the State to prescribe and enforce standards of conduct in its
    schools, although concededly very broad, must be exercised consistently with
    constitutional safeguards.” Goss v. Lopez, 
    419 U.S. 565
    , 574 (1975). Further,
    while it is true that Tinker “is not a difficult burden,” Cash, 585 F.3d at 222
    (internal quotation marks omitted), this is the very reason that we must not
    apply Tinker to off-campus speech, like Bell’s. Otherwise, armed with the
    comfort that courts will simply defer to their decisions, schools will largely have
    carte blanche to regulate students’ off-campus speech, thus significantly
    burdening not only the First Amendment rights of students but also the
    constitutional rights of their parents and their listeners.
                                           IV.
          As explained above, the Supreme Court has not decided whether, or, if
    so, under what circumstances, a public school may regulate students’ online,
    off-campus speech, and it is not necessary or appropriate for the majority
    opinion to anticipate such a decision here. That is because, even if Tinker were
    applicable to the instant case, the evidence does not support the conclusion, as
    would be required by Tinker, that Bell’s Internet-posted song substantially
    disrupted the school’s work and discipline or that the school officials
    reasonably could have forecasted that it would do so.
          In considering the School Board’s motion for summary judgment, we are
    required to view the evidence in the light most favorable to Bell, the non-
    
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    movant. See Tolan v. Cotton, 
    134 S. Ct. 1861
    , 1868 (2014) (per curiam). The
    majority opinion, however, wholly disclaims this duty by ignoring material
    facts and refusing to draw inferences in Bell’s favor—particularly those facts
    and inferences clearly evincing that Bell’s song was not and could not be
    regarded as a threat. For example, Bell has been an aspiring musician since
    he was a young boy. He began writing lyrics as a child and started to pursue
    a musical career in earnest while in his teens. Like many musical artists, Bell
    has a stage name, “T-Bizzle,” and he regularly 20 records music in a professional
    studio. Indeed, the very rap that gave rise to this case was recorded at a
    recording studio off campus called “Get Real Entertainment” records. As he
    explained to the Disciplinary Committee, Bell considers himself “an artist,”
    and, as explained above, he originally composed and publicized the song in an
    effort to “speak out” on and raise awareness of an important issue in his
    community, i.e., sexual harassment of students. Moreover, consistent with his
    musical aspirations, Bell explained that the version of the song posted to
    YouTube was also intended to attract the attention of record labels. Further,
    the screenshot of Bell’s Facebook page reveals that his friends who commented
    on the song viewed it as the product of Bell’s musical talent as a rap musician
    rather than a threat of violence (e.g., “Hey, don't forget me when you're famous”
    and “Lol . . . been tellin you since we was little . . . you got all the talent in the
    world . . .”). In addition, no one—neither Wildmon, Rainey, nor any other
    teacher or school official—testified that s/he thought Bell, himself, subjectively
    intended to cause anyone to fear that Bell personally would harm any person.
    Nor was there any evidence that Bell was a dangerous person or that he had
    ever engaged in violent or unlawful conduct. Although Bell in his rap song
    
    
          20   “Once a week,” if possible.
    
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    referred to a firearm, the evidence does not reflect that Bell had ever owned,
    possessed, or had any actual experience with firearms. Except for a single
    tardiness, Bell had an unblemished school conduct record. These crucial facts
    not only impeach the School Board’s contention that Bell’s song could
    reasonably be perceived as a legitimate threat of violence, but also illuminate
    the fallacies in the majority opinion’s comparison between this case and other
    circuit decisions that have condoned punishment for intentionally violent
    student speech. 21
           Moreover, the majority opinion likewise either ignores or glosses over
    other relevant evidence tending to show that school officials did not consider
    Bell’s song threatening but instead punished him merely because they did not
    like the content of his speech. For example, during the closing remarks of the
    
    
           21 For example, the majority opinion compares Bell’s rap song to the potential violence
    “signaled” in Ponce v. Socorro Independent School District, 
    508 F.3d 765
     (5th Cir. 2007) and
    LaVine v. Blaine School District, 
    257 F.3d 981
    , 987 (9th Cir. 2001). But even a cursory
    comparison between this case and the facts of those cases reveals the majority opinion’s
    flawed logic. In Ponce, a student brought to campus a private diary, which was written in
    the first-person narrative, and showed its contents to a classmate. 508 F.3d at 766. The
    diary detailed the plan of his “pseudo-Nazi” group to conduct coordinated “Columbine-style”
    shootings at his school and at other schools in the district. Id. As the Ponce opinion explains:
           The notebook describes several incidents involving the pseudo-Nazi group,
           including one in which the author ordered his group “to brutally injure two
           homosexuals and seven colored” people and another in which the author
           describes punishing another student by setting his house on fire and “brutally
           murder[ing]” his dog. The notebook also details the group's plan to commit a
           “[C]olumbine shooting” attack on Montwood High School or a coordinated
           “shooting at all the [district's] schools at the same time.” At several points in
           the journal, the author expresses the feeling that his “anger has the best of
           [him]” and that “it will get to the point where [he] will no longer have control.”
           The author predicts that this outburst will occur on the day that his close
           friends at the school graduate.
    Id. Likewise, in LaVine, a student brought to campus a poem written in the first person
    describing how the narrator murdered without remorse 28 people at his school and which
    ominously concluded with the narrator’s prediction that he “may strike again.” LaVine, 257
    F.3d at 983–84.
    
    
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    Disciplinary Committee meeting, one member of the committee provided the
    following admonition to Bell:
           I would say censor your material. . . . Because you are good [at
           rapping], but everybody doesn’t really listen to that kind of stuff.
           So, if you want to get [] your message out to everybody, make it
           where everybody will listen to it. . . . You know what I’m saying?
           Censor that stuff. Don’t put all those bad words in it. . . . The bad
           words ain’t making it better. . . Sometimes you can make emotions
           with big words, not bad words. You know what I’m saying? . . . Big
           words, not bad words. Think about that when you write your next
           piece.
    The school’s censorial focus on the “bad words” in Bell’s song can also be
    gleaned from the transcript of the preliminary-injunction hearing:
           School Board Lawyer: You realized what you had done in
           publishing this song, while it may be, in your perception, an
           artistic endeavor, was filthy; and it was filled with words like fuck,
           correct?
           Bell: Yes, sir.
    Further, although the majority opinion emphasizes Wildmon’s testimony that
    Bell’s rap song allegedly scared him, the majority opinion refuses to
    acknowledge that Rainey testified that he viewed the song as “just a rap” and
    that “if [he] let it go, it will probably just die down.” In addition to ignoring
    these material facts, the majority opinion likewise refuses to draw obvious
    inferences from the record which further evince the fact that school officials
    did not consider Bell’s song to be threatening in nature. For example, in sharp
    contrast to other cases in which courts have upheld discipline for a student’s
    purportedly “violent” speech, 22 nothing in the record reflects that school
    officials ever contacted law enforcement about Bell’s song. To the contrary,
    Bell’s principal drove him home that day, and he thereafter was allowed to
    
    
            See, e.g., Ponce, 508 F.3d at 767; Wynar v. Douglas Cnty. Sch. Dist., 
    728 F.3d 1062
    ,
           22
    
    1065–66 (9th Cir. 2013); LaVine, 257 F.3d at 985.
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    return to classes. Later, when Bell was suspended pending the outcome of the
    Disciplinary Committee hearing, he nevertheless was allowed to remain
    unattended in the school commons for the remainder of the day.         These are
    simply not the actions of school officials who seriously or reasonably believe a
    student poses a threat of violence to school officials.
          Had the majority opinion properly reviewed all the relevant facts and
    drawn the clear inferences therefrom, it would have been compelled to conclude
    that the evidence here does not support a finding, as would be required by
    Tinker, that a “substantial disruption” occurred or that school officials
    reasonably could have “forecast” a substantial disruption as a result of Bell’s
    rap. 393 U.S. at 514. As an initial matter, the evidence plainly shows that
    there was no commotion, boisterous conduct, interruption of classes, or any
    lack of order, discipline and decorum at the school, as a result of Bell’s posting
    of his song on the Internet. Cf. Shanley, 462 F.2d at 970 (“Disruption in fact is
    an important element for evaluating the reasonableness of a regulation
    screening or punishing student expression.”).       In fact, at the preliminary
    injunction hearing, Wildmon explained that his students “seem[ed] to act
    normal” after Bell’s rap was released, and Rainey testified that most of the talk
    amongst students had not been about Bell’s song but rather about his
    suspension and transfer to alternative school. Aside from the single instance
    when Wildmon requested a student play the song for him, there was no
    evidence that any student played the song at school. Indeed, school computers
    blocked Facebook, and cellphones were prohibited, which decreased the
    likelihood that students could access the song on campus.          Further, Bell
    testified that he never encouraged students or staff to listen to the song at
    school, and there is no evidence to the contrary. Tellingly, when asked if she
    could point to any disruption at the school as a result of Bell’s song, the
    
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    superintendent referred only to the fact that the coaches said that they had
    altered their “teaching styles” in order to avoid any appearance of initiating or
    engaging in sexual relationships or harassment with female students. 23 Yet,
    neither the superintendent nor the coaches described how this alleged change
    in “teaching styles” had substantially harmed their ability to teach their
    assigned courses. And, in any event, it is self-evident that a teacher’s effort to
    avoid the appearance that he is engaging in sexual relationships with students
    should be deemed a dictate of the classroom and not a disruption of it. 24 In
    sum, even assuming arguendo that Tinker could be applied to Bell’s speech in
    this case, the School Board failed to satisfy its burden under the “substantial-
    disruption” framework.
           In reaching the opposite conclusion, however, the majority opinion
    reasons that Bell’s “threatening, intimidating, and harassing language . . .
    could be forecast by [school officials] to cause a substantial disruption.” See
    Maj. Op. p. 31. But, the “evidence” that the majority opinion cites for this
    conclusion is, at the very best, sorely lacking. For example, the majority
    opinion emphasizes that Wildmon and some unnamed “third parties” 25
    purportedly perceived Bell’s rap song as threatening. See Maj. Op. p. 31. Yet,
    
    
           23 For example, Wildmon testified: “I tried to make sure, you know, if I'm teaching,
    and if I'm scanning the classroom, that I don't look in one area too long. I don't want to be
    accused of, you know, staring at a girl or anything of that matter.” Rainey testified that he
    no longer felt he could be as “hands on” with his female members of the track team, and thus
    “sometimes I tell the boys to go and work with the girls.”
    
           24Even assuming arguendo these changes in the coaches’ teaching and coaching styles
    could be classified as “disruptions,” the School Board has not presented any evidence to
    support a finding that such disruptions were “substantial,” as required by Tinker.
    
           25During a seconds-long aside at the Disciplinary Committee hearing, Bell simply
    alluded to such statements by third parties. Neither Bell nor anyone else provided any
    details whatsoever about these third parties, nor did he specify whether he heard these
    statements himself or via a third party.
    
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    the majority opinion fails to apprehend that an individual’s perception of
    speech is not necessarily tantamount to a rational assessment of that speech
    nor a valid basis for concluding that such speech is “unprotected” under the
    First Amendment. Indeed, regardless of how some individuals might view
    Bell’s speech, no reasonable listener could perceive Bell’s lyrics as threats in
    light of the particular context; nor did the particular listeners here. See United
    States v. Jeffries, 
    692 F.3d 473
    , 480 (6th Cir. 2012) (“A reasonable listener
    understands that a gangster growling ‘I’d like to sew your mouth shut’ to a
    recalcitrant debtor carries a different connotation from the impression left
    when a candidate uses those same words during a political debate. And a
    reasonable listener knows that the words ‘I’ll tear your head off’ mean
    something different when uttered by a professional football player from when
    uttered by a serial killer.”). Critically, the speech at issue in this case occurred
    in a rap song, a musical genre in which hyperbolic and violent language is
    commonly used in order to convey emotion and meaning—not to make real
    threats of violence. See, e.g., Andrea L. Dennis, Poetic (In)Justice? Rap Music
    Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. and Arts 1, 22
    (2007). Further, as detailed above, Bell is a long-aspiring rapper; he composed
    the song in a professional studio; and he publically broadcast the song to raise
    public awareness and to attract the attention of record labels. These crucial
    contextual facts reveal that Bell’s song was just that: a song, authored by a
    young and aspiring musical artist—not the calling card of a would-be killer.
    The majority opinion therefore errs by relying upon unsubstantiated and
    unreasonable beliefs that Bell’s song was “threatening” in order to support its
    conclusion that the School Board satisfied its burden under Tinker. Accord
    Cash, 585 F.3d at 221–22 (observing that school “[o]fficials must base their
    decisions on fact, not intuition”) (internal quotation marks omitted).
    
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          For additional support that Tinker is satisfied, the majority opinion also
    emphasizes the wording of the School Board’s Discipline-Administrative
    Policy. See Maj. Op. p. 31. Specifically, the majority opinion derives meaning
    from the parallels between Tinker’s “substantial disruption” framework and
    the School Board’s decision to place the heading “SEVERE DISRUPTIONS”
    above twenty-one different disciplinary “offenses,” one of which is the school’s
    prohibition on “[h]arassment, intimidation, or threatening other students
    and/or teachers.” Under the policy, other “severe disruptions” include, inter
    alia, “stealing,” “cutting classes,” and “profanity, or vulgarity (to include acts,
    gestures, or symbols directed at another person.)” According to the majority
    opinion, this “policy demonstrates an awareness of Tinker’s substantial-
    disruption standard, 26 and the policy’s violation can be used as evidence
    supporting the reasonable forecast of a future substantial disruption.” The
    majority opinion’s reasoning in this regard is flawed. As an initial matter, this
    policy nowhere states that it applies to student conduct or speech that, like
    Bell’s, occurs away from school or school-related activities. In this respect, the
    policy is facially distinguishable from those on-campus policies in Morse and
    Fraser to which the majority opinion analogizes.             Moreover, however, the
    majority opinion’s logic is entirely circular. The very task before our court is
    determining whether the School Board’s decision to discipline Bell under a
    school policy comported with constitutional dictates. According to the majority
    opinion, however, the School’s Board’s decision to discipline Bell under a school
    policy is evidence that the punishment comported with constitutional dictates.
    Contrary to the majority opinion’s assertions otherwise, this is prototypical
    ipse dixit.
    
    
          26The majority opinion cites no evidence to substantiate that the somewhat parallel
    language is anything more than a mere coincidence.
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                                            V.
          “[A] ‘function’ of free speech under our system of government is to invite
    dispute. It may indeed best serve its high purpose when it induces a condition
    of unrest, creates dissatisfaction with conditions as they are, or even stirs
    people to anger.” Cox v. Louisiana, 
    379 U.S. 536
    , 551–52 (1965). By raising
    awareness of high school athletic coaches’ sexual misconduct toward minor
    female students, Taylor Bell’s rap song had this exact effect, and amongst those
    most “stir[red] to anger” were Itawamba school officials. The First Amendment
    prohibited Itawamba from expressing that anger by punishing Bell for the
    content of his speech.      See Barnette, 319 U.S. at 637 (“The Fourteenth
    Amendment . . . protects the citizen against the State itself and all of its
    creatures—Boards of Education not excepted.”). “If there is a bedrock principle
    underlying the First Amendment, it is that the government may not prohibit
    the expression of an idea simply because society finds the idea itself offensive
    or disagreeable.” Texas v. Johnson, 
    491 U.S. 397
    , 414 (1989). Indeed, “the
    point of all speech protection . . . is to shield just those choices of content that
    in someone’s eyes are misguided, or even hurtful.” Hurley, 515 U.S. at 574. The
    majority opinion, however, forsakes its duty to uphold this most elementary
    and important of our Constitution’s guarantees.
          In its conclusion, the majority opinion observes that the “mission” of
    schools is “to educate.” Maj. Op. p. 32. Yet, the majority opinion fails to
    apprehend the breadth of what an “education” encompasses. As the Supreme
    Court has explained, “[t]he vigilant protection of constitutional freedoms is
    nowhere more vital than in the community of American schools.” Shelton v.
    Tucker, 
    364 U.S. 479
    , 487 (1960). Teachers are “charge[d] . . . with the task of
    [i]mbuing their students with an understanding of our system of democracy.”
    New Jersey v. T.L.O., 
    469 U.S. 325
    , 354 (1985) (Brennan, J., concurring in part
    
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    and dissenting in part). “That they are educating the young for citizenship is
    reason for scrupulous protection of Constitutional freedoms of the individual,
    if we are not to strangle the free mind at its source and teach youth to discount
    important principles of our government as mere platitudes.” Barnette, 319
    U.S. at 637. “[E]ducation prepares individuals to be self-reliant and self-
    sufficient participants in society.”   Wisconsin v. Yoder, 
    406 U.S. 205
    , 221
    (1972). Accordingly, “students must always remain free to inquire, to study
    and to evaluate, to gain new maturity and understanding; otherwise our
    civilization will stagnate and die.” Sweezy v. New Hampshire, 
    354 U.S. 234
    ,
    250 (1957).
          Viewed in the light of these longstanding principles, Bell’s song was not
    a disruption of school activities but rather was an effort to participate as a
    citizen in our unique constitutional democracy by raising awareness of a
    serious matter of public concern. Yet, rather than commending Bell’s efforts,
    the Itawamba County School Board punished him for the content of his speech,
    in effect teaching Bell that the First Amendment does not protect students who
    challenge those in power. The majority opinion teaches that same mistaken
    lesson to all the children in our Circuit. Indeed, in concluding that the First
    Amendment officially condones Bell’s censoring and punishment by the School
    Board, instead of safeguarding his freedom of speech, the majority opinion
    undermines the rights of all students and adults to both speak and receive
    speech on matters of public concern through the Internet.
          For these reasons, I respectfully and earnestly dissent.
    
    
    
    
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    EDWARD C. PRADO, Circuit Judge, dissenting:
           I agree with Judge Dennis’s dissent that Bell’s rap song constitutes
    expressive speech protected by the First Amendment and that the school’s
    discipline for that speech violated the First Amendment under existing
    Supreme Court precedent. I therefore respectfully dissent and join Judge
    Dennis’s dissent in part. 1
           I write separately because off-campus online student speech is a poor fit
    for the current strictures of First Amendment doctrine, which developed from
    restrictions on other media, and I hope that the Supreme Court will soon give
    courts the necessary guidance to resolve these difficult cases. See David L.
    Hudson, Jr., The First Amendment: Freedom of Speech § 7:6 (2012) (“[T]he next
    frontier in student speech that the U.S. Supreme Court will explore is online
    speech.”). This issue has divided the circuits and state supreme courts. Some
    have concluded that the Tinker standard categorically does not apply to online
    off-campus speech. See J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 
    650 F.3d 915
    , 937 (3d Cir. 2011) (en banc) (Smith, J., concurring) (noting that “[l]ower
    courts . . . are divided on whether Tinker’s substantial-disruption test governs
    students’ off-campus expression”); see also Thomas v. Bd. of Ed., Granville
    
    
           1 I do not join Part I of Judge Dennis’s dissent. Unlike the dissent, I would conclude
    that speech is presumptively protected by the First Amendment unless it fits within a specific
    category of unprotected speech—regardless of the subject matter of the speech. Thus, I would
    not extend the doctrinal distinction between private speech and speech on a matter of public
    concern from the torts and public-employment contexts into the student-speech context.
           I also do not join Part II(B) of the dissent. I agree with the dissent’s larger point that
    the majority opinion’s standard is vague and will prove difficult to apply; however, I am not
    as sure as the dissent that the Supreme Court’s 1997 decision in Reno v. American Civil
    Liberties Union, 
    521 U.S. 844
     (1997), remains indicative of how the Court would resolve this
    case today. The Internet has changed dramatically since 1997, so much so that I wonder
    whether the Court’s views on online student speech have evolved to take into account the
    potential for harm that simply did not exist to the same degree when Reno was decided
    eighteen years ago. See, e.g., J.S. v. Bethlehem Area Sch. Dist., 
    807 A.2d 847
    , 863 (Pa. 2002)
    (observing that “the advent of the Internet has complicated analysis of restrictions on
    speech”).
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    Cent. Sch. Dist., 
    607 F.2d 1043
    , 1053 n.18 (2d Cir. 1979) (“[W]e believe that
    [the] power [to regulate expression] is denied to public school officials when
    they seek to punish off-campus expression simply because they reasonably
    foresee that in-school distribution may result.”). Some courts have assumed
    without deciding that Tinker applies. See, e.g., J.S., 650 F.3d at 928–31
    (majority op.). And some courts have held that Tinker applies to online off-
    campus speech if “it was foreseeable . . . [that the] conduct would reach the
    school via computers, smartphones, and other electronic devices,” Kowalski v.
    Berkeley Cnty. Schs., 
    652 F.3d 565
    , 574 (4th Cir. 2011), or if there is a
    “sufficient nexus between the website and the school campus to consider the
    speech as occurring on campus,” J.S. v. Bethlehem Area Sch. Dist., 
    807 A.2d 847
    , 865 (Pa. 2002). I am unaware of a circuit or state supreme court going as
    far as the majority in this case and holding that threatening, harassing, or
    intimidating online speech that occurred purely off campus may be prohibited
    or punished. The majority’s holding appears to depart from the other, already
    divided circuits in yet another direction.
          Bell’s speech does not fit within the currently established, narrow
    categories of unprotected speech, and I would wait for the Supreme Court to
    act before exempting a new category of speech from First Amendment
    protection. As we previously stated in Porter v. Ascension Parish School Board,
    the Tinker standard only applies to substantially disruptive “student speech
    on the school premises.” 
    393 F.3d 608
    , 615 (5th Cir. 2004) (emphasis added)
    (internal quotation marks omitted); see also id. at 615 n. 22 (criticizing other
    courts for “[r]efusing to differentiate between student speech taking place on-
    campus and speech taking place off-campus”). Schools officials may also punish
    speech that advocates illegal drug use and that takes place at off-campus
    school-sanctioned activities during school hours. Morse v. Frederick, 
    551 U.S. 95
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    393, 400–01 (2007) (citing Porter, 393 F.3d at 615 n.22); see also id. at 425
    (Alito, J., concurring) (reasoning that the location of the speech matters and
    that, “due to the special features of the school environment, school officials
    must have greater authority to intervene before speech leads to violence”). But
    this exception does not apply to purely off-campus speech. See id. at 405
    (majority op.) (“Had Fraser delivered the same speech in a public forum outside
    the school context, it would have been protected.”).
          Moreover, Bell’s speech does not fall within the First Amendment
    exception we have previously recognized for student speech that threatens
    “violence bearing the stamp of a well-known pattern of recent historic activity:
    mass, systematic school-shootings in the style that has become painfully
    familiar in the United States.” Ponce v. Socorro Indep. Sch. Dist., 
    508 F.3d 765
    ,
    770–71 (5th Cir. 2007) (emphasis added). Indeed, in Ponce, we emphasized the
    narrow scope of this exception, concluding that this exception does not include
    “threats of violence to individual teachers[, which should be] analyzed under
    Tinker” or not at all, id. at 771 n.2 (emphasis added), meaning that threatening
    language about an individual teacher is not within the Morse exception and
    may be punished only if it is either “on school premises” within the meaning of
    Tinker, Porter, 393 F.3d at 615, or if it constitutes a true threat. We reasoned:
    “Such threats [to teachers], because they are relatively discrete in scope and
    directed at adults, do not amount to the heightened level of harm that was the
    focus of both the majority opinion and Justice Alito’s concurring opinion in
    Morse.” Ponce, 508 F.3d at 771 n.2 (citing Boim v. Fulton Cnty. Sch. Dist., 
    494 F.3d 978
     (11th Cir. 2007); Wisniewski v. Bd. of Educ. of the Weedsport Cent.
    Sch. Dist., 
    494 F.3d 34
     (2d Cir. 2007)). “The harm of a mass school shooting is,
    by contrast, so devastating and so particular to schools that Morse analysis is
    appropriate.” Id. (emphasis added).
    
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          In this case, Bell’s rap song was performed and broadcasted entirely off-
    campus, and the song described violence directed at individual teachers—not
    a Columbine-type mass school shooting. Therefore, Bell’s rap does not fall
    within the Tinker or the Morse categories of unprotected speech under our
    Circuit’s decisions in Porter and Ponce. Further, in the context of expressive
    rap music protesting the sexual misconduct of faculty members, no reasonable
    juror could conclude that Bell’s rap lyrics constituted a “true threat.” See
    Virginia v. Black, 
    538 U.S. 343
    , 359 (2003) (“‘True threats’ encompass [only]
    those statements where the speaker means to communicate a serious
    expression of an intent to commit an act of unlawful violence to a particular
    individual or group of individuals.”). Therefore, I would reverse the district
    court and render judgment for Bell.
          I therefore agree with Judge Dennis’s dissent that our Circuit should
    hesitate before carving out a new category of unprotected speech.
          Even so, I share the majority opinion’s concern about the potentially
    harmful impact of off-campus online speech on the on-campus lives of students.
    The ever-increasing encroachment of off-campus online and social-media
    speech into the campus, classroom, and lives of school students cannot be
    overstated. See Kowalski, 652 F.3d at 567–69, 571 (confronting a situation in
    which one high-school student created a webpage dedicated to spreading
    rumors about the sexually transmitted disease of another student and her
    supposed sexual promiscuity, thereby “singl[ing] out [that student] for
    harassment, bullying and intimidation”). Ultimately, the difficult issues of off-
    campus online speech will need to be addressed by the Supreme Court.
          For the foregoing reasons, I respectfully dissent.
    
    
    
    
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                                         No. 12-60264
    
    HAYNES, Circuit Judge, dissenting in part:
          I respectfully dissent from the portion of the majority opinion affirming
    the district court’s grant of summary judgment in favor of the School Board on
    Bell’s claim. 1 I conclude that the majority opinion greatly and unnecessarily
    expands Tinker to the detriment of Bell’s First Amendment rights. I would
    reverse the district court’s grant of summary judgment to the School Board and
    remand for further proceedings on those matters for substantially the same
    reasons set forth in Section III of the original panel majority opinion. See Bell,
    774 F.3d at 290–303.
    
    
    
    
          1 Credibility and inferences matter here, so I would not reverse the denial of Bell’s
    summary judgment motion.
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                                           No. 12-60264
    
    JAMES E. GRAVES, JR., Circuit Judge, dissenting:
           I join Judge Dennis’s dissenting opinion. Like Judge Dennis, my view is
    that the Tinker framework was not intended to apply to off-campus speech. I
    recognize, however, that current technology serves to significantly blur the
    lines between on-campus and off-campus speech.                     In the light of this
    undeniable reality, and in the alternative, I would apply a modified Tinker
    standard to off-campus speech. My Tinker-Bell standard would begin with the
    Tinker substantial disruption test. See Tinker v. Des Moines Indep. Cmty. Sch.
    Dist., 
    393 U.S. 503
     (1969); see also Shanley v. Ne. Indep. Sch. Dist., 
    462 F.2d 960
     (5th Cir. 1972). It would further include a nexus prong that is derived
    most significantly from the Fourth Circuit’s nexus test in Kowalski v. Berkeley
    County Schools, 
    652 F.3d 565
     (4th Cir. 2011).                  The nexus prong would
    incorporate the important factors, considered by other appellate courts, of
    foreseeability and the speech’s predominant message.
           This standard would protect the First Amendment rights of students to
    engage in free expression off campus, while also recognizing that school
    officials should have some ability, under very limited circumstances, to
    discipline students for off-campus speech. Mindful of these core principles and
    concerns, I would apply the following test.
           In order for a school to discipline a student for off-campus
           speech, the school must:
               (1) provide evidence of facts which might reasonably have
                   led school authorities to forecast a substantial disruption
                   OR evidence of an actual, substantial disruption; 1 AND
               (2) demonstrate a sufficient nexus between the speech and
                   the school’s pedagogical interests that would justify the
    
           1  Tinker, 393 U.S. at 509, 513–14; see also Shanley, 462 F.2d at 974 (“We emphasize .
    . . that there must be demonstrable factors that would give rise to any reasonable forecast by
    the school administration of ‘substantial and material’ disruption of school activities before
    expression may be constitutionally restrained.”).
    
    
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                  school’s discipline of the student. 2 In this regard, I would
                  consider three non-exclusive factors:
                     a. whether the speech could reasonably be expected
                        to reach the school environment. 3
                     b. whether the school’s interest as trustee of student
                        well-being 4 outweighs the interest of respecting
                        the traditional parental role 5 in disciplining a
                        student for off-campus speech . . .
                            i. giving particular weight to evidence,
                               experiential or otherwise (like the bullying
                               research in the Fourth Circuit’s Kowalski
                               decision), 6 which indicates that particular
                               off-campus speech has a unique and proven
                               adverse impact on students and the campus
                               environment.
                     c. whether the predominant message of the student’s
                        speech is entitled to heightened protection. 7
    
    
    
    
           2  See Kowalski, 652 F.3d at 573 (“There is surely a limit to the scope of a high school’s
    interest in the order, safety, and well-being of its students when the speech at issue originates
    outside the schoolhouse gate. But we need not fully define that limit here, as we are satisfied
    that the nexus of [the student’s] speech to [the high school’s] pedagogical interests was
    sufficiently strong to justify the action taken by school officials in carrying out their role as
    the trustees of the student body’s well-being.”).
            3 See Wisniewski v. Bd. of Educ., 
    494 F.3d 34
    , 38–39 (2d Cir. 2007), cert. denied, 
    128 S. Ct. 1741
     (2008) (expanding the reach of Tinker to include off-campus speech that is
    reasonably foreseeable to “come to the attention of school authorities”); Doninger v. Niehoff,
    
    527 F.3d 41
    , 50 (2d Cir. 2008) (applying Tinker to off-campus speech where the speech is
    reasonably foreseeable to reach the school property); D.J.M. v. Hannibal Pub. Sch. Dist., 
    647 F.3d 754
    , 766 (8th Cir. 2011) (same, where speech was reasonably foreseeable to be brought
    to the attention of school authorities).
            4 See Kowalski, 652 F.3d at 573.
            5 Our court has held in high regard the traditional role of parents to discipline their
    
    children off campus. See Shanley, 462 F.2d at 964 (“It should have come as a shock to the
    parents of five high school seniors . . . that their elected school board had assumed suzerainty
    over their children before and after school, off school grounds, and with regard to their
    children’s rights of expressing their thoughts.”); id. at 966 (explaining that the parents filed
    the lawsuit in “objecti[on] to the school board’s bootstrap transmogrification into Super-
    Parent”).
            6 Kowalski, 652 F.3d at 572.
            7 See Section I of Judge Dennis’s dissenting opinion; see also Bell v. Itawamba Cnty.
    
    Sch. Bd., 
    774 F.3d 280
    , 299 n.46 (5th Cir. 2014), rev’d en banc.
    
    
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    In my view, if this test were applied to the facts of this case, the school’s
    discipline of Bell would clearly fail. For this additional, alternative reason, I
    dissent.
    
    
    
    
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