by Joshua B. Hoe

As you have probably noticed from this blog, I follow the ongoing adventures of the hip-hop act Run The Jewels a lot.

Recently, Pitchfork posted a story about Killer Mike and a bunch of other hip-hop artists co-signing on a recent Supreme Court Amicus Brief (meaning it is a brief of support from people with an interest to the case but not material to the case).

It was about a case involving a Mississippi high school student named Taylor Bell and his rap song "Psk The Truth."

This case, and story, matter because they get to the very core of what constitutes identity, free speech, and art in this country.

The Facts of "Psk the Truth"

Taylor Bell, while off-campus, wrote a hip-hop song about complaints over the sexually inappropriate behavior of a gym coach at the school.

The song was called "Psk the Truth"

The song included profanity and some lyrical threats against the gym coach, in particular threatening him with gun violence and him getting beaten up for his behavior.

Mr. Bell posted the song on his Facebook page and later also on YouTube (after being asked to cease and desist by the school).

My understanding was that Mr. Bell was 18 at the time of the incident and that the song was written off-campus (might be wrong about his age).

After the coach and school became aware of the existence of the song they suspended Mr. Bell.

The School Board upheld the suspension unanimously.

Mr. Bell and his Mother brought suit against the school and school board and ultimately the case made it's way to the 5th Circuit where the suspension was upheld.

The case has matriculated up to the Supreme Court, but the Court has not yet agreed to grant the case Cert (they haven't agreed to hear the case).

Problems Always Problems

When I was in High School (Booker T. Washington in Tulsa Oklahoma), I worked for the school paper (sports editor).

Our High School was a Federally funded Magnet School predicated on a mandatory 50-50 integration plan (white and non-white).

One of the other reporters on our staff wrote a story about how while our school was "technically" integrated, often in practice the school population remained self-segregated (IMHO this was 100% true).

The school principle flipped out.

Within a few months, the paper had a new staff, a new adviser, and a new editorial policy.

The teacher who sponsored us at the time, sued the school but the case lost for some of the same reasons Mr. Bell lost his case (schools can restrict speech that a) causes substantial disruption of or interference with school activities and b) can exercise editorial control over content if they feel that speech represents the school as an entity).

What I learned from that experience is that, as far as the Supreme Court is concerned, Schools have wide latitude to censor student papers.

This might seem surprising, but we assume all Constitutional rights are absolute when actually the Court recognizes limits to every right granted under the Constitution.

My gut feeling, after reading the cases, and the arguments before the Court, is that the Supreme Court will probably not hear the case. If they do hear the case, it will likely be to address the "off-campus" free speech issues (I think they will feel the material issues have been addressed in previous precedent).

I am not a legal scholar, I hope that I am wrong.

And, I also feel that to let the 5th Circuit case stand would be a mistake.

Why?

Artistic Expression + Figurative Speech

One of the reasons this would be a terrible outcome is that Taylor Bell was actually trying to do something good..He was trying to bring attention to sexual misconduct in his school.

As one of the authors of the Amicus brief Professor Erik Nielson of the University of Richmond told me in an email conversation:

"One thing you can quote :) This was clearly not a threat. It was a young man brave enough to stand up against sexual misconduct. We ought to encourage that kind of strength, not punish it."

It does seem odd to me that the school and school district are worried more about Mr. Bell's threat and not the alleged impropriety by the coach.

But, let's jump past that one for a second.

Another reason the Court should erase the suspension is that there was literally no threat made or intended.

How do I know this?

Anyone who has seen a recent Quentin Tarantino movie understands the fictionalization of historical events (Unless you actually thought "The Bear Jew" was a historically accurate character in Inglorious Basterds).

If you are confused, imagine Taylor Bell wrote a short story instead of a rap song, and that short story included both fictional and real characters.

But, and this is the important part, the hero of the short story was fictional.

And it was that hero who made the threats against the real characters.

Just like in the Tarantino movies, we call this artistic license.

The threat is figurative not literal.

And this is EXACTLY what Mr. Bell engaged in a figurative threat using his artistic license.

It Doesn't Take Magic Powers

You might be wondering how I know Taylor Bell was employing a fictional protagonist in his rap song?

Well, I did this crazy thing, I read the lyrics.

The protagonist of the song is not named Taylor Bell.

His name is T-Bizzle.

In the song T-Bizzle is a Football player, but also a drug dealer and a drug dealer so experienced he can say the following:

"I'm a serve this ngga up like I serve the junkies with some crack"

and:

I'm a dope runner, spot a junkie a mile away."

I may not be The Amazing Kreskin, but I am going to bet that Taylor Bell is NOT a drug dealing football player who knows addicts from a mile away.

He is writing the story from the perspective of a fictional character (T-Bizzle).

Remarkably, the 5th Circuit, actually uses these lyrics as proof that Taylor Bell was threatening the football coach for real.

Umm, Court? Knock Knock, anyone home?

My goodness, people need to take a deep breath and just think sometimes.

He is writing fiction to bring attention to an issue he thinks was important enough to perform.

To spotlight issues that otherwise remain covered up.

You know, one of the main reasons why art is important.

And the reason why so much of rap music is based in exactly this kind of exaggeration and figurative speech (this is the whole basis of the Amicus Brief so I will not spend too much time on this - although obviously there is a long and well-documented history of this in rap).

In addition, in support of this thesis, there was no evidence Mr. Bell ever made any real or credible threat, no police were called at the time, no searches happened, and Mr. Bell was allowed to roam the campus for a good deal of time with no disruption after the fact.

His suspension was like seven days.

I am not saying this doesn't matter, I am saying, it sure doesn't feel like anyone thought that they were at risk (but even if they did, I am saying that doesn't really matter).

My Bad Afternoon With David

Way back around 93 or 94 one of my best debate students David MacDonald (One of the smartest people I have ever met, RIP) put out a rap album.

The Album was called "How I Killed George Bush" and it was by his group "F-Cripz" (F-Cripz stood for Fargo Cripz - he was from Fargo - a play on the fact that no black people (or gang members) live in Fargo North Dakota).

The song "How I Killed George Bush" was told from the perspective of a fictional narrator (sound familiar) and was told entirely in the past tense (yes, the narrator took down George Herbert Walker Bush in a hail of gunfire in the song).

Anyway, right before we were getting ready for the National Tournament, David was questioned by the Secret Service about the song.

I remember the phone call like it was yesterday.

They let him go, the album was released, and life went on like normal.

Why?

Because, even in 1993 - the Secret Service understood artistic license and the difference between a real and a fictional threat.

Taylor Bell deserves/deserved that same consideration.

But, so far, he has not received very much resembling careful consideration at all.

We live in terrified, overreacting, and sensationalist times.

You can almost hear a Fox commentator calling Taylor Bell "a thug" in your imagination.

The 5th Circuit, perhaps playing the role of Fox commentator, had the gall to say the following:

"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."

And:

"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."

Which sounds great, maybe even persuasive, except for one small problem.

T-Bizzle isn't Taylor Bell.

T-Bizzle is a fictional character.

Even more incredibly, they even mention in the 5th Circuit decision, that his reason for releasing "Psk The Truth" on YouTube after he was asked to desist by the school was that he wanted record company executives to be able to see it.

As in, it was art, a performance.

Because he was producing art not reality.

You would think they would put 2 + 2 together.

Yes, they have the right to protect teachers, to restrict speech to protect speech, they even have the right to edit documents produced in their name.

What they don't have the right to do is legitimize the prosecution of people for writing fiction as if the fiction were real. You do not have the right to prosecute parody or fictional violence as if it were a real thing.

If you allow that kind of restriction, all art stops, everything stops.

Imagine if everything you heard, read, or watched could not play with violence in any way that could be attached to real people or real events.

What author or musician doesn't fictionalize feelings and events from their own life to create the art.

This isn't some simple open and shut unimportant case involving some rude dangerous kid.

There was no history of anything bad in Mr. Bell's history (in any of the stories or court cases I read).

So, I truly hope that the Court realizes that the issue at hand is not if the school has the right to protect against threats, or the right to censor school productions, or even the right to censor or punish students for off-campus behaviors.

All of these are issues discussed in the case and subsequent pleadings and briefs.

The issue at hand is literally artistic freedom to speak about real events through a fictional lens.

The heart of virtually all politically meaningful art.

You know, that Democracy thing.

What do you think about the Taylor Bell case? I would love to hear your opinion, leave a comment!