Careless or biased summary of First Amendment appeals court decision -

THIS HAS BEEN REPLACED BY THIS CONDENSED UPDATED VERSION


This essay begins with an article in the New York Times of  December 20, 2015 
based on a decision of Fifth Court of Appeals  "Hip Hop Stars Support Mississippi Rapper in First Amendment Case"

The writer is  Adam Liptak, a legal scholar, which makes my effort all the more challenging.  He teaches at Columbia Law the term, "ipse dixit"  which means "he says so, or depending on the status of source rather then evidence" so this must be transcended to evaluate this challenge by a non-lawyer.

This essay was prompted by my reaction after reading these three paragraphs of the article:

A divided 16-member panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans,rejected Mr. Bell's First Amendment challenge.  Judge Rhesa Hawkins Barksdale, writing for the majority, said the song was “incredibly profane and vulgar” and contained “numerous spelling and grammatical errors.”If there is to be education,” Judge Barksdale wrote, “such conduct cannot be permitted.”

I said to my wife, "I can't believe it, this Southern judge wrote it's O.K. to rule against a rap song because of spelling and grammar errors!"  I've been reading the Times regularly for more than five decades, and have great respect for it as an institution. Its Pulitzer Prize wining art critic, Danel Hennihan, and I spent dozens of hours walking our dogs together in N.Y. Riverside Park, and Gail Collins and I chatted for a magic ten minutes after listening to an early campaign speech by George W. Bush in South Carolina.  So, the Times means something to me on multiple levels.

I wrote the following to the ombudsman of the Times (some additions included) :
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Public Editor, N.Y. Times

Re:  12/20/15   Hip-Hop Stars Support Mississippi Rapper in First Amendment Case

The article contains this paragraph: 

A divided 16-member panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, rejected Mr. Bell’s First Amendment challenge.  Judge Rhesa Hawkins Barksdale, writing for the majority, said the song was “incredibly profane and vulgar” and contained “numerous spelling and grammatical errors.”  “If there is to be education,” Judge Barksdale wrote, “such conduct cannot be permitted.”

The wording and context of the above paragraph strongly implies that both of the two elements of the lyrics, including "numerous spelling and grammatical errors" were aspects that were considered in deeming that the posting was not protected speech. I was surprised and shocked that spelling and grammatical errors could ever have limited first amendment protections.

On pp 3 of the PDF transcript the context was clear.   Judge Barksdale stated that such errors were not, as is customary, corrected in the transcript of the rap lyrics.  His statement was appropriate, as the exact transcription was needed to evaluate aspects that could impact the case.  The quoted reference to spelling and grammatical errors was in lieu of  multiple uses of "sic" legitimate -- as described in this explanation from the Columbia School of Journalism.  

Either the Judge made a serious mistake if he did consider this, or what is more likely, The New York Times has trivialized and distorted the process of the jurists arriving at their decision.  If that is the case, the reporter who was tasked with reading the entire decision must have done this intentionally if not grossly incompetent. 

Please get back to me on this, as I presume others have contacted you on this issue.

Regards

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This was written before I discovered the background of the writer.  After three days, and a repeat request, no response.


 Addendum:

 This video has the recording and commentary of the rap song, and a version of the text that is also included in the full  transcript of the appeals court case.   A comprehensive article on the appeals decision from The College Fix

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Notes on appeals decision  pp 1-34 the words of Justice Barksdale,

pp 3  Use of “numerous spelling and grammar errors” as explanation of the lack of corrections for these in the transcript.

pp4  Use of “incredibly profane and vulgar” to describe the rap lyrics  (this perhaps the one of the three phrases that is arguably inappropriate, but this was not a description to a trier of fact, but a summary of the case.

pp 8, Bell’s punishment, seven day suspension,  not allowed to participate in extracurricular activities for and must attend special school for nine weeks 

pp10  plaintiff’s experts agreement on possibility of language being a threat

last par. pp11  Summary of District courts summary decision based on School District hearing that defined the facts of the case described in previous pages

pp14-17  History of Tinker case and others  Free Speech rights of school students

pp 19  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.

pp23 bottom is an example when speech from outside school is protected by Tinker, IE if the instant case had these qualities district court decision would have been overturned.

pp33 is where the NY Times quote, “such conduct cannot be permitted” is used, but not as implied by the context, but as a conclusion      discussion of what extensive precedent has determined transcends the assumption of absolute freedom of speech.  I

pp26-34 discussion of precedents and course of this case.  Key is whether the rap video was a “threat” thus the meaning explored in detail 

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Sent Mr. Liptak. via N.Y. Times author's page

Your summary of the Taylor Bell 5th circuit decision appears to be seriously flawed as described in link below .  Perhaps since the article was not specifically on this, you may not have studied it, in which case you owe Justice Barksdale an apology, and a correction for the record

http://alrodbell.blogspot.com/2015/12/careless-or-biased-summary-of-first.html