LATOUR
ANTHONY LATOUR, a minor, JOHN A. LATOUR, and DENISE LATOUR, as parents and natural guardians of Anthony Latour and in their individual capacity, Plaintiffs, -vs- RIVERSIDE BEAVER SCHOOL DISTRICT, Defendant. AMBROSE, Chief District Judge.
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
Civil Action No. 05-1076
Filed August 24, 2005
Ambrose, Chief District Judge
MEMORANDUM OPINION
This action arises out of the disciplinary action taken against Anthony Latour ("Anthony"), a student at
1. A song written in 2003 that mentions another middle school student (Jane Smith);
2. The first track on a CD recorded in November 2004, titled "Murder, He Wrote";
3. A battle rap song with John Doe titled "Massacre"; and
4. Another battle rap song he wrote and uploaded onto his personal Internet website titled "Actin Fast ft. Grimey."
On July 17, 2005, Defendant's School Board ratified the expulsion decision.
Anthony Latour and his parents (collectively referred to as "Plaintiffs") filed a Motion for Preliminary Injunction seeking an order from this Court enjoining Defendant from expelling Anthony, restraining Defendant from banning Anthony from attending school sponsored events and from being present on school grounds after hours, and enjoining Defendant from imposing any other sanctions against Anthony for expressions, or as retaliation for his expressions. (Docket No. 2). A hearing on the Motion for Preliminary Injunction was held on August 18, 2005. The issue is now ripe for review.
The following factors must be weighed in determining the propriety of a preliminary injunction:
a. The likelihood of success on the merits;
b. The possibility of harm to the non-moving party if relief were granted;
c. The probability of irreparable injury to the moving party in the absence of relief; and
d. The public interest.
Alessi v.
"True threats" are "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...." To determine if a statement is a true threat, I will consider the speaker's intent, how the intended victim reacted to the alleged threat, whether it was communicated directly to its victim, whether the threat was conditional, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence. Virginia v. Black, 538
The evidence at the hearing shows that Anthony's songs were written in the rap genre and that rap songs are "just rhymes" and are metaphors. Thus, while some rap songs contain violent language, it is violent imagery and no actual violence is intended. (Preliminary Injunction Hearing testimony of Bakari Kitwana; Expulsion hearing testimony of John Doe).
Furthermore, there is no evidence that Anthony communicated these songs directly to Jane Smith, John Doe, or Defendant. Rather, they were published on the Internet or sold in the community.
There is no evidence from Jane Smith, herself, that she felt threatened. Mrs. Smith, Jane's mother, did not testify that Jane was threatened by the song, but rather that she was humiliated and broken hearted. (Defendant's Ex. A, Ex. A, pp. 138-140). Furthermore, I find that John Doe was not threatened by "Massacre." As he admitted, he did not think Anthony's song was a threat, but that it was just a "bluff" and "a question of, you know, flexing your lyrical muscle...." (Defendant's Ex. A, Ex. A, pp. 152-153).
Moreover, there is no evidence that Anthony had a history of violence.
Additionally, I find Defendant's argument that the songs were true threats is weakened by the fact that it failed to do any type of its own investigation, regardless of the police involvement, from the end of March of 2005, until the time of the expulsion hearing on May 17, 2005. Defendant claims that it feared Anthony might cause imminent harm to Jane Doe, John Smith, and or the school, in general. Yet, it did not search Anthony's locker to determine whether he had any types of weapons, did not refer Anthony to counseling, did not talk to Anthony or his parents, did not remove John Doe from school, and did not talk to Jane Smith. Therefore, based on the testimony at the hearing and the exhibits presented, I find that there is a likelihood that Plaintiffs will prevail on the issue of whether the songs were true threats.
I next turn to whether the songs caused a material and substantial disruption to the school day or whether there was a specific fear of substantial disruption. Tinker v. Des Moines Indep. Community Sch. Dist., 393
Because Defendant has not demonstrated that the songs constituted true threats or caused a material and substantial disruption, Plaintiffs have prevailed in demonstrating a likelihood of success on the merits. Consequently, I find that the first factor weighs in favor of granting the preliminary injunction.
With regard to the second factor, the possibility of harm to Defendant, I find that there were no true threats and that the disruptions (or feared disruptions) identified by Defendant were not substantial and not attributable to Anthony's songs. (Defendant's Ex. A, Ex. A, pp. 126-132). Consequently, this factor weighs in favor of granting the preliminary injunction
As to the third and fourth elements, the probability of irreparable injury and the public interest, unquestionably, the loss of First Amendment freedoms, even for a minimal amount of time, constitutes irreparable injury. Elrod v. Burns, 427
As a result, I find that the requirements for the issuance of a preliminary injunction have been met.
****************************
ORDER OF COURT
AND NOW, this 23rd day of August, 2005, after a Preliminary Injunction Hearing and for the reasons set forth above, it is ORDERED that Defendant, Riverside Beaver School District are enjoined and restrained as follows:
1. From expelling Anthony; and
2. From banning Anthony from attending school sponsored events and from being present on school grounds after hours.
BY THE COURT:
Donetta W. Ambrose,
Chief
