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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. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

        2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

        3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

        4. 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.

        5. 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!

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