Ex-band director’s texts to student splits COA on ‘harmful to minors’ debate

The Court of Appeals of Indiana has split on an internet-related issue in a case involving harmful content for minors after an ex-band director was handed a felony charge for text messages he sent to a former student.

Former Paoli Junior-Senior High School band director Cory Chapman allegedly sent memes involving jokes of a sexual nature to a former student following his resignation.

Chapman was charged with Level 6 felony disseminating matter harmful to minors but moved for a preliminary determination as to whether the “matter” at issue was “probably harmful to minors.” Following a preliminary hearing pursuant to Indiana Code § 35-49-2-4 (1983), at which copies of the memes were admitted into evidence, a Greene County judge concluded the memes were probably harmful to minors.

But Chapman in an interlocutory appeal argued that the memes did not meet the standard of “probably harmful to minors” and that, if they did meet the standard, it would constitute a violation of his First Amendment rights. For its part, the state argued the preliminary hearing procedure provided for in I.C. 35-49-2-4 was inapplicable in the case.

Indiana Court of Appeals Judges Margret Robb and Paul Mathias and Senior Judge Randall Shepard heard oral arguments in the case at Purdue University-Fort Wayne in November 2021.

On Wednesday, the majority appellate judges affirmed the trial court, with Robb dissenting.

At the outset, the majority noted the judges could not entirely rule out the applicability of I.C. 35-49-2-4.

“While we acknowledge the preliminary nature of a determination under this statute, we also envision the possibility that a defendant might use such a determination as a basis for a motion to dismiss,” Shepard wrote. “The grounds on which a defendant may seek dismissal are numerous, including ‘any other ground that is a basis for dismissal as a matter of law.’ … That being said, we make no decision on the resolution of such a motion as that issue is not before us in this case.”

Moving to the merits, the majority concluded that while the memes did not show any nudity or sadomasochistic abuse, “almost all, if not all” could be described or represented as sexual conduct or sexual excitement.

It also found that while Chapman argued the memes were simply humorous and did not fit the definition of “prurient,” they all suggested or used explicit language to refer to sexual activities or sexual situations in crude, vulgar and degrading terms.

Further, the majority found no error in the Greene Superior Court’s preliminary determination given that the trial judge reviewed the memes and deemed them patently offensive to prevailing standards in the adult community with respect to what is suitable matter for minors. And finally, it found the memes lacked serious literary, artistic, political or scientific value for minors.

“We therefore conclude the court was well within its discretion to determine the memes constitute matter that is probably harmful to minors,” Shepard wrote.

Additionally, the majority noted that “given the pervasive nature of the internet and social media in today’s society, especially with teens” it would be both prudent and necessary for Indiana lawmakers to address the statutory scheme to reflect the existence and use of social media platforms not yet in existence when the statute was enacted in 1983.

Likewise, in a separate concurrence, Mathias wrote that the “‘ubiquity of smartphones for teenagers, together with the instant availability and almost completely uncensored nature of content on the Internet have been at the heart of this coarsening of values for minors, and indeed for us all.”

The majority also found Chapman’s constitutional challenge was waived.

On that point, Judge Robb countered that Chapman’s entire argument “is that Indiana Code section 35-49-2-2 and the First Amendment are entwined because matter is presumptively protected by the First Amendment unless the State can prove it is matter harmful to minors as defined in section 35-49-2-2.”

“… (T)he very purpose of requesting a preliminary determination was to address whether the charges pass constitutional muster,” Robb wrote. “To the extent a constitutional analysis would be necessary, I would not consider it waived.”

The dissenting judge also disagreed with the majority’s determination that it “cannot entirely rule out the applicability” of I.C. 35-49-2-4. She maintained that because the state did not object to the preliminary determination proceedings, its argument should be waived.

Robb further opined that “our historical notions of ‘seizure’” should not limit the process of preliminarily determining whether matter is harmful. But the heart of Robb’s disagreement with the majority, she said, was whether the matter was patently offensive.

“The problem starkly illustrated by this case is that the law has not caught up with the internet age, which has expanded our definition of ‘community’ beyond town limits or county lines to the far reaches of the world,” Robb wrote. “Although the majority acknowledges and laments the cultural shift wrought by the internet, it fails to acknowledge how this shift applies to what it means to be patently offensive under the standard we use to evaluate content today.

“… I agree with Judge Mathias that the prevailing standards for what is suitable matter for minors in 2022 are not the same as they were when the statute was written,” Robb continued. “And yet the majority wishes to pretend the influx of material regularly shared amongst modern youth has not shifted the way we should view what is suitable for minors unless and until the legislature reconsiders the statute. But I cannot ignore these sweeping cultural changes.

“The sexually suggestive memes at issue are almost certainly in poor taste and I do not support the sharing of them with a seventeen-year-old. Nonetheless, I cannot find this material patently offensive to prevailing standards in the adult community with respect to what is harmful to a teenager on the cusp of adulthood in 2022,” the dissenting judge concluded.

Robb would reverse and remand for further proceedings in Cory Chapman v. State of Indiana, 21A-CR-421.

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