An Indiana Federal District Judge Holds That Teens Have a First Amendment Right Not to Be Punished by Their School for Posting Saucy Photos Online

In my last column for Justia’s Verdict, I considered a set of judicial decisions regarding whether high-school students may be punished by their schools for their postings to social-networking sites like MySpace and Facebook—assuming that the postings are made from home computers, outside of school hours.

Those decisions involved issues of parody (some of the students created and posted plainly fake and supposedly humorous profiles of their principals online) and protest: One student, Avery Doninger, was angered that her school’s battle-of-the-bands contest had been cancelled.

Doninger is now seeking U.S. Supreme Court review of the court decision that held that she had no right to protest the battle-of-the-bands cancellation via entries on her blog that she made while at home.

In this column, I’ll consider another student-speech case, T.V. v. Smith-Green Community School Corp., that raises a different, but related, issue:  Can a public school, consistent with the First Amendment, suspend students who, during a sleepover at a private home, take lascivious (but clothed) photos of themselves, and post the photos on social-networking sites for “friends” and persons with the requisite passwords to see?

The Facts of the Case

On August 10, the Chief Judge of the U.S. District Court for the Northern District of Indiana, Philip P. Simon, issued an opinion in the matter of the photos.  His lengthy and well-reasoned opinion also displayed a sharp sense of humor:  His opening line was, “Not much good takes place at slumber parties for high school kids, and this case proves the point.” And he opined that it might not have been the wisest choice to make a federal case out of a “6-game suspension from a high-school volleyball schedule”—which was the girls’ school-imposed punishment.  (I actually disagree on this point, though; to me, it’s the principle, not the punishment, that matters most here.)

What happened during the sleepovers at issue was that two girls (known only as sixteen-year-old T.V., and fifteen-year-old M.K. in the case, because they are juveniles) took photos of themselves sucking on phallic-shaped lollipops; pretending to kiss each other; and engaging in similar hijinks.  Apparently, there was no nudity involved; the girls wore lingerie or pajamas.

The girls then made the photos available to their MySpace and Facebook “friends,” and to those who had the password to a Photobucket account.

The girls never brought the photos to school, but an angry parent presented copies of the photos to the school’s superintendent, and contended that the photos had divided the school’s girls’ volleyball team, for which T.V. and M.K. played—with some players supporting the photos, and others wanting to have nothing to do with them.

That parent’s complaint—combined with a complaint from another parent—then led to the six-game suspensions described above, with both T.V. and M.K. suspended from volleyball, and M.K. also suspended from show choir (a terrible punishment indeed, in the age of “Glee”).

Can a Public School’s Policy Punish Speech That Students Engage in at Home, Using Home Computers?

The school’s policy purported to cover out-of-school activities, noting that students who participated in extracurriculars had to “demonstrate good conduct at school and outside of school,” and making clear that if they did not do so, then they could face suspension for bringing “discredit or dishonor” upon the school.

Of course, it makes sense for a school to have some kind of policy like this for students participating in extracurriculars, since such students are representing their school when they leave their school grounds.  (Thus, student bad behavior at an “away” game is as bad—if not even worse—than student bad behavior at a home game.)

But it’s questionable whether policies like this one should even be read to extend to conduct that is not part of the extracurricular activity itself.  In other words, one could argue that what the girls did was simply beyond the policy’s reach.

Here, though, it seems that Judge Simon may have read the policy – perhaps for purposes of argument—to extend to the home, but still concluded that, to the extent that the policy reached the photo-taking and photo-posting, it violated the girls’ First Amendment rights.

The school apparently had argued that what the girls did was not even First Amendment-protected in the first place, but Judge Simon made short work of that claim: He pointed to precedent making clear that even speech that is “ridiculous[],” “inappropriate,” “crude” or “low-grade” is still First Amendment-protected.

Judge Simon also added that not just the girls’ horseplay, but also their photographing it and uploading the photos, was First Amendment-protected because these were activities that sought to “memorialize” and “further communicate” what the girls were expressing with their initial horseplay.

In addition, Judge Simon concluded that the school’s contention that the photos constituted obscenity and child pornography were off-base, because the photos did not depict, or pretend to depict, actual sexual activity.

Moreover, the fact that the girls were not the ones who brought copies of the photos to school seemingly was important to Judge Simon, who saw little or no nexus between the school and the events that happened at the slumber parties.

The Ongoing Questions About Tinker’s Application

As I discussed in my prior column on school speech, the standard set forth by the Supreme Court in Tinker v. Des Moines Independent Community School District (1969) is still the reigning rule in the school-speech context.

That standard requires that student speech must cause a material and substantial disruption of the school’s “work and discipline” before it can constitutionally be censored or punished by the school.

Here, applying Tinker, Judge Simon found the school’s showing of disruption to be “extremely weak,” noting that it came down to the complaints of disgruntled parents—when Tinker itself focuses on whether students themselves are causing disruption.  Among students themselves, Judge Simon concluded, only “petty sniping” was proven to have occurred.

For essentially these reasons, Judge Simon held in favor of T.V. and M.K.—but also (and rightly, I believe) dismissed their claims seeking to hold their principal individually liable, in light of the evolving nature of this area of law.  With Avery Doninger seeking Supreme Court review in a parallel case, and with courts split on off-campus speech issues, it would be difficult to contend that the law on such issues is settled.

This Decision Offers More Proof That the Supreme Court Ought to Soon Consider the Issue of Schools’ Punishment for Students’ Off-Campus Online Speech

Interestingly, too, Judge Simon points out that even the Supreme Court has noted that there is some uncertainty, in boundary-pushing cases, as to when courts should apply Tinker.

This uncertainty suggests that—whether now, with the petition for certiorari that I discussed in my earlier column, or at some later time—this issue really ought to come before the Court.

Indeed, I hope that the Supreme Court pays special attention to such cases, as student experiences can powerfully shape what young people think of our constitutional system.  If any petition ought to be among the first on the list for the Court to consider, it should surely be theirs.

Podcast: Play in new window | Download