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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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