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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

        2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

        3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

        4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

        5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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