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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 work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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