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Judge: Students’ off-campus Internet photos protected by First Amendment

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A federal judge has ruled that a northern Indiana school district shouldn’t have disciplined two high school girls who posted racy online photos of themselves posing with phallic lollipops and simulating sexual acts because the pictures were outside of school and are protected by the First Amendment.

The case tests whether school administrators can stretch beyond campus limits and regulate out-of-school conduct. U.S. Chief Judge Philip Simon in the Northern District of Indiana ruled Wednesday in T.V. and M.K. v. Smith-Green Community School Corp. and Austin Couch, No. 1:09-cv-00290.

The two girls, ages 15 and 16, were sophomores at Churubusco High School when the incident happened during the summer of 2009. The girls were at two different sleepovers with friends when they took pictures of themselves pretending to kiss or lick a large multi-colored novelty phallus-shaped lollipop, as well as pictures of themselves in lingerie with dollar bills tucked into their clothing. They posted the pictures on their Myspace and Facebook pages, which were visible to their online friends.

Though the girls didn’t bring the pictures to the 400-person school, other parents and staff members brought the online images to the attention of the superintendent and principal on claims they were disrupting and causing concern in the school. Smith-Green has an athletic and extracurricular Code of Conduct in place that bars students that participate in those activities from behaving in ways that may bring discredit to the school or disrupt school discipline, and in response Principal Austin Couch suspended them from extracurricular and co-curricular activities. He agreed to reduce the girls’ punishment by 25 percent if they attended counseling sessions and apologized to the athletic board. They agreed and received reduced punishment – missing six volleyball games.

Challenging that punishment, the girls’ parents filed the federal suit against the district claiming that the school’s policy is unconstitutional and needs to be altered or removed. In response to the lawsuit, Smith-Green has stated that the pictures were obscene and constituted child pornography and as such are not protected speech under the First Amendment.

Chief Judge Simon heard arguments on the case in late May and in his 38-page ruling Wednesday, he disagreed with the school and found the photos should be protected despite the suggestive and racy nature.

“The case poses timely questions about the limits school officials can place on out of school speech by students in the information age where Twitter, Facebook, Myspace, texts, and the like rule the day,” Chief Judge Simon wrote. “Let’s be honest about it: the speech in this case doesn’t exactly call to mind high-minded civic discourse about current events. And one could reasonably question the wisdom of making a federal case out of a 6-game suspension from a high school volleyball schedule. But for better or worse, that’s what this case is about and it is now ripe for disposition.”

Though the record supports the argument that the photos were juvenile and silly, Chief Judge Simon found the conduct was intended to be humorous to those teenagers who might view them online and that the Supreme Court of the United States has held that kind of “expressive” conduct is protected under the First Amendment. The judge ruled that the photos can’t be considered obscene or along the lines of sexual conduct, child exploitation, or child pornography, according to state or federal law.

While the SCOTUS hasn’t yet determined whether off-campus speech posted on the Internet that subsequently makes its way onto campus can be regulated by school officials, Chief Judge Simon looked to other federal courts that have assumed a 1969 precedent protecting that expressive conduct off campus applies in this situation.

The judge determined the school policies are vague and overbroad and are therefore unconstitutional in permitting discipline based on the principal’s conclusion that T.V. and M.K. had brought “discredit or dishonor” to themselves and the school. He issued an injunction against the school from enforcing that standard.

“I wish the case involved more important and worthwhile speech on the parts of the students, but then of course a school’s well-intentioned but unconstitutional punishment of that speech would be all the more regrettable," he wrote.

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  • Lighten up?
    Hey Jim, twas not my words, twas the words of the prosecutor at Nuremberg, a great former SCOTUS justice. He is turning in his grave at about 500 rpm given our current descent.
  • a follow up
    I used a fake name alright because advocates of traditional morality need to protect themselves from vindictive extreme leftists who want to defame and smear people who don't agree to unlimited sexual licentiousness. From experience I know. I've been called a bigot, racist, "repressed" and a lot of other things because I've made remarks that some people didn't like, and those people thought they could score points by insulting me rather than debating ideas. Its the problem with all this high falutin "tolerance" mumbo jumbo: it's mostly just "tolerance" for unlimited personal licentiousness, and never tolerance for anything some people don't like, such as traditional religious observances or public expressions of it. We all know that today's pro-obscenity First Amendment jurisprudence would have been a laugh in the first 175 years of the republic, and it was only the rising financial and social power of Marxism and its grandchild political correcntess that have caused a change. Truth is still truth, even if people don't like it. Naughty children should be disciplined and public expressions of explicity sexual conduct by minors should be detered and appropriately punished. Quite simply, those who organize to deter that, are in favor of the activity and not really protecting some supposed liberty as they may pretend.
  • Free Speech-4th Amendment
    Thanks for your courage in posting your real name "John". The case centers on whether a high school or high school principal has authority over children OFF CAMPUS. The presiding judge characterizes this situation accurately-the girls' actions were immature but they were not illegal under Indiana law. It's time that parents stop delegating unlimited powers to school employees so they can devote time and resources to curriculum and education (i.e. their jobs).
    • laws necessarily do impose morality
      Dont laws that prohibit sexual conduct-- and
      "simulated" sexual conduct-- "impose moral code" on people who think minors should engage in sex? In other words, morality is indeed the basis of law and it is foolish to set that up as any kind of illegitimate factor for law. Property rights, labor laws, obscenity, sex crimes, crimes of violance, all have moral and ethical dimensions. It is not a bad thing for law to "impose morality" it is indeed precisely why we have laws in the first place.
      • sick
        Minors do not and should not have the same free speech rights as adults. For minors to simulate fellatio on a lollipop is certainly within the reasonably disciplinary purview of a public school. Only now that the First Amendment has been so twisted out of its original intent can such a thing be deemed wrongful on the part of the Principal. The fellow should have been given a clap on the back and perhaps the parenst should have considered spankings instead of a lawsuit.
      • Lighten up, bryanjbrown
        Couldn't disagree more. Judge Simon is correct...the discourse is not high minded, and offensive to some, but it clearly is an overreach by the school, all parties should have met and come to a solution that everyone could live with, but in today's society, that does not happen. If I were the parent, would I have brought the suit...no, I would not have. It is a stupid case for the court to deal with, but First amendment protection is serious, and it is covered...order in Churubusco was not threatened in the slightest here. There are just some people who want to force people to behave according to their moral code, and they invoke words like "order, control, and chaos" to scare other people into agreeing that there should be all sorts of unecessary laws and rules that are not needed or wanted, and that supercede people's first amendment rights. Silly case, with parents and school (and bryan) all overreacting at one point or another.
        • A historic warning
          This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

          TERMINIELLO V. CITY OF CHICAGO , 337 U.S. 1, 37 (1949)(Jackson, J., dissenting, joined by Burton, J.)(emphasis added)

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        1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

        2. This guy sounds like the classic molester/manipulator.

        3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

        4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

        5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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