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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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