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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. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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