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The expulsion of three eighth-grade girls for Facebook posts deemed threatening and “cyber-bullying” is being challenged in a lawsuit that attracted national attention and generated its own expression: “The emoticon defense.”

In announcing its federal suit, the ACLU of Indiana said the students’ First Amendment right to free speech was violated and that Griffith Public Schools in northwestern Indiana did not meet legal tests for expulsion.

“The emoticon defense” was coined after part of the basis for the suit included claims that emoticons – expressions formed by a combination of keystrokes – gave a joking context to the posts.

“The students’ Facebook comments, which took place after school on their personal electronic devices, were clearly meant to be humorous, as evidenced by their repeated use of emoticons such as ;) and abbreviations such as LOL and LMFAO, and caused no disruption at school,” the ACLU of Indiana said in a statement announcing the suit on April 25.

Rose Rose

Few cases have cited emoticons, and ACLU of Indiana attorney Gavin Rose acknowledged that the suit was bound to generate headlines. But he bristles at the “emoticon defense” label.

“I consider it to be a nice little jingle but a tremendous oversimplification of the legal issues in this case,” Rose said. Those include how far a school district may go in disciplining students for things they say or post online away from school grounds, on their own time and their own devices.

“Schools do not possess infinite reach into the private lives of their students,” the ACLU said in a statement.

The students were suspended and later expelled after parents brought copies of Facebook posts to the attention of Griffith school administrators.

According to the Times of Northwestern Indiana, the Facebook posts were viewable by about 70 people in the girls’ friends circle. The Times reported the following excerpts, sprinkled with emoticons, LOLs and the like:

Girl 2: thee only people that make me mad, are 7th graders who dont move out of thee way. & ugly people liike (name) (name) (name) (name) (name)...etc. (sic)

Girl 1: I would say kill all the ugly people at school than. But I don’t wanna die.

And later:

Girl 3: i wanna kill people.

Girl 2: ii wiish yu wouldnt get caught, cos … half thee school would be gone by now...

Girl 1: I need new best friends. All of mine are homicidal.

Despite the attention the “emoticon defense” received, the case also demonstrates the legal complications that Indiana school administrators face when parents, students or teachers report troubling online comments they consider cyber-bullying.

State law sets two tests for removing students for their conduct. A student may be suspended or expelled if his or her activity is unlawful or interferes with school purposes or functions; or if the student’s removal is necessary to restore order or protect people on school property.

Rose said Griffith officials didn’t meet those tests. The suit asks for a judicial declaration that the girls’ First Amendment rights were violated, an injunction removing the discipline from their records, and monetary damages.

Officials from Griffith Public Schools and the schools’ attorney did not respond to messages seeking comment.

Madeira Madeira

Jody Madeira is an expert on children and the law and an associate professor at Indiana University Maurer School of Law. She said interpreting emoticons is a dicey proposition.

Madeira said an attorney could argue “that the use of emoticons even makes it more depraved. … How can they smile and laugh about these things?”

Emoticons and online lingo are subjective, she said. “This is how people talk online,” she said. “It doesn’t mean anything.”

Madeira said a larger issue is that cyber-bullying is changing how courts rule when school discipline is challenged. The standard of upholding discipline for a student whose action disrupts school is evolving toward a standard of upholding discipline if the action disrupts any student’s educational experience, she said.

Disciplining students for Facebook posts, particularly those outside school property, has vexed school administrators, said Dave Emmert, general counsel for the Indiana School Boards Association.

He dismisses the idea that a taunt or threat can be erased when followed with an electronic wink or smiley face.

“School officials after Columbine are just so concerned about their duty of reasonable care to protect other students,” Emmert said. “If they’re going to err, they’re going to err on the side of safety.”

Emmert last year wrote an article for the School Boards Association Journal titled, “Why Can Indiana Students Bully, Cheat, and Do Other Disruptive Things on the Internet (and Get Away With It)?”

Emmert, a former teacher, said that because state code stipulates an off-campus activity must be unlawful for a student to be suspended or expelled, schools have little legal cover for expulsion over online posts, no matter how distasteful or provocative.

Emmert said parents take cyber-bullying seriously and expect school principals and superintendents to do the same. He said some parents even have turned in their own children after discovering troubling online posts.

School administrators, Emmert said, “catch hell for arguably not protecting” when a student’s bullying or threatening posts are brought to the school’s attention.

State law requires all school districts to have bullying policies, including for school-owned computers and electronic devices, but the law is mute on what constitutes “cyber-bullying.”

Emmert’s article got the attention of Indiana Rep. Eric Koch, R-Bedford, who last year authored House Bill 1169 that sought to remove “unlawful” from the Indiana Code as a criterion for disciplining students. Emmert and Koch said the bill would have given schools greater discretion to remove students for cyber-bullying.

Koch’s bill passed the House but not the Senate. It will be discussed as part of a summer study committee on education reform.

Koch said he’s heard from school administrators who feel handcuffed in disciplining students for their social media posts.

“They are seeking flexibility but also legal certainty,” Koch said. “And I think that legal certainty is also deserved by the students who are subject to these rules.”

Justin Patchin, co-director of the Cyberbullying Research Center and an associate professor at the University of Wisconsin-Eau Claire, said he believes if someone is targeted by bullying posts, it doesn’t matter if a smiley face follows.

“The argument being made that I didn’t really buy is that because the threat included LOL or emoticons, it makes it OK,” Patchin said.

But could an emoticon turn a case?

In a 2009 Nebraska case, a man found guilty of use of a computer to entice a child or a peace officer believed to be a child for sexual purposes appealed his conviction and cited an emoticon in his defense. The man had been convicted of making online sexual advances to someone he believed to be a 15-year-old girl.

An officer who had posed as the teen used an emoticon expressing anger after the man initially declined to arrange a meeting. The man claimed entrapment. The Nebraska Supreme Court upheld the man’s conviction.

In the Griffith case, emoticons are just a part of the tone of the online chatter. Another is how teens communicate.

“It was innocent from our point of view – the kind of conversation that 13- to 14-year-olds have been having forever,” Rose said. “The only difference being, this was out there for the world to see.”

Emmert recalled teaching high school before social media, cyber-bullying and emoticons. Teens said and did outrageous things then, too, he said.

“They don’t know what the heck they’re doing,” Emmert said.

The ACLU suit is S.M., et al. v. Griffith Public Schools, No. 2:12-CV-160, in the Hammond Division of the Northern District of Indiana.•
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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