District Court Finds High School Students' Provocative, Sexual-Themed Photos Posted on Social Media Site Are Protectable Free Speech

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T.V. v. Smith-Green Community School Corp., No. 09-CV-00290, 2011 BL 206733 (N.D. Ind. Aug. 10, 2011) While admonishing that "[n]ot much good takes place at slumber parties for high school kids, and this case proves that point," the U.S. District Court for the Northern District of Indiana nonetheless found that photos taken by a group of high school students at summer slumber parties, as well as the act of posting those photos on the Internet, were protected free speech. T.V. at 1. The court observed that although the pictures featured teenage girls in sexually suggestive poses, none of the pictures could be considered obscene under Indiana law, and therefore, that the defendant school district improperly punished the students.

Plaintiffs Post Lewd Photos on the Internet

Plaintiffs T.V. and M.K. were minors, high school students, and members of their school's volleyball team at Churubusco High School where defendant Austin Couch served as principal. During the summer of 2009, plaintiffs took a series of sexually suggestive photos, including photos depicting plaintiffs sucking phallic-shaped rainbow-colored lollipops. In one photo, M.K. is fully-clothed and sucking on a lollipop while another lollipop is between her legs and a fully-clothed T.V. is pretending to suck it. Another group of pictures features M.K. in lingerie with another girl holding up one of M.K.'s legs and T.V. holding a toy trident as if it were protruding from her crotch and pointing it between M.K.'s legs; a photo of T.V. positioned behind another kneeling girl simulating anal sex; and a final photo of M.K. in lingerie with money protruding from the lingerie like a stripper. T.V. posted the photos on her MySpace and Facebook accounts, with viewing restricted to "friends" only. Some of the photos were also posted on Photobucket in a password-protected account. None of the photos identified where the plaintiffs attended school, and the plaintiffs never brought the photos to school. The plaintiffs later testified that they were "joking around" when they took the photos and that they posted the photos so they could share with their friends how funny the photos were. T.V. at 3. A parent from the plaintiffs' high school brought printouts of the photos to the high school, and they were eventually brought to the attention of Principal Couch. The parent alleged that the photos were creating "divisiveness" among the students on the volleyball team, as two groups had been formed—those who were not offended by the photos and those who were. Id. at 4. Principal Couch took the photos to the district's superintendent and reported that the photos were causing a disruption within the team. The superintendent instructed Principal Couch to "follow code" in addressing the allegations. Id. Principal Couch ultimately restricted the plaintiffs from participating in certain extracurricular activities for a limited time, in compliance with the high school's Extra-Curricular/Co-Curricular Code of Conduct and Athletic Code of Conduct. The Code requires those students who participate in extra-curricular activities to "demonstrate good conduct at school and outside of school," even when school is out of session. Id. The Code states: "If you act in a manner in school or out of school that brings discredit or dishonor upon yourself or your school, you may be removed from extra-curricular activities for all or part of the year." Id. at 4-5. Principal Couch based his decision on his "determination that the photographs were inappropriate, and that by posing for them, and posting them on the internet, the students were reflecting discredit upon the school." Id. at 5. Furthermore, Principal Couch determined that the photos had the potential to cause disruption at the school. Principal Couch made his decision in the context of two then-recent events: the death of two students in a car accident, and an incident earlier in 2009 where students posted photos on the Internet of themselves drinking alcohol, which caused disruption in the hallways and gyms.

Photos Are Protected by the First Amendment

The court first considered whether the photos and the posting of the photos constituted protected expression under the First Amendment. The School argued that it could have imposed the same penalty based on the behavior alone, even if the plaintiffs had not taken the photos or posted them on the Internet. The plaintiffs countered that their conduct was protected by the First Amendment because it satisfied the "intent-plus-perception test for expressive conduct." T.V. at 8. In order to receive First Amendment protection pursuant to this test, a speaker must intend to communicate a particular message and there must be a strong likelihood that the message will be perceived by the recipient. The plaintiffs contended, and the court agreed, that their photos were intended to be humorous, and the recipients of the photos would understand that humor. The court reasoned that the crude humor stemmed from the fact that the conduct was "juvenile and silly and provocative." Id. at 9. "That some particularized message was intended is demonstrated by the fact that the scenes were obviously staged and not entirely spontaneous." Id. at 10. The court noted that the fact that the adults who became aware of the conduct, photos, and postings were upset by the actions actually supported the notion that the conduct portrayed a particular message. Furthermore, the court explained that the publication of the photos to the Internet was a protectable public display of the protected expression and was intended to further communicate the message. The court thus concluded that the actions taken by the plaintiffs, the photographs of those actions, and the posting of the photos to the Internet each qualified as protected speech under the First Amendment.


The School argued that even if the plaintiffs' actions would usually be protected, in the instant case they constituted both obscenity and child pornography, neither of which is protected by the First Amendment. The U.S. Supreme Court established a three-part test for determining whether certain material should be deemed obscene in Miller v. California, 413 U.S. 15, 23 (1973). The second part of the test queries whether "'the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.'" T.V. at 13 (quoting Miller, 413 U.S. at 24). In Indiana, the definition of "sexual conduct" with respect to the state's regulations of child pornography includes sexual intercourse, deviate sexual conduct, exhibition of the uncovered genitals intended to satisfy or arouse sexual desire, sadomasochistic abuse, sexual or deviate sexual conduct with an animal, or any fondling or touching of a child by another or of another person by a child with the intent to arouse or satisfy the sexual desires of either the child or the other person. The School conceded that only deviate sexual conduct was applicable in the instant case. Deviate sexual conduct is defined as: "(1) a sex organ of one person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object." Id. at 14 (citation omitted). The court noted that none of the photos conformed to this definition and found that neither the plaintiffs' conduct nor the photos constituted obscenity or child pornography under state (or federal) law. Once the court determined that the conduct, photos, and posting of the photos on the Internet were protected speech, it considered which constitutional free speech standard to apply, taking context into consideration. The School argued that the photos were still not entitled to First Amendment protection because the photos were lewd, vulgar, and/or plainly offensive. While the Supreme Court has acknowledged that school officials may punish vulgar and lewd speech, the court noted that the photos were taken in the privacy of the plaintiffs' homes and published on the Internet away from the school, and were never taken onto school property. See Bethel School District No. 403 v. Fraser, 478 U.S. 675, 685 (1986). The court also considered the Tinker standard, which states that school officials may restrict student expression if the expression will "'materially and substantially disrupt the work and discipline of the school.'" Id. at 17 (quoting Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)). Most federal courts that have addressed the issue, with the exception of the Third Circuit, have concluded that the Tinker standard applies to conduct that occurs off of the school grounds or not at a school activity. See J.S. v. Blue Mountain School District, No. 08-4138, 2011 BL 155578 (3d Cir. 2011). For a further discussion of recent cases where courts determined whether a public school may punish students for off-campus Internet speech, see A Potential Circuit Split: When Can Public Schools Punish Students for Off-Campus Online Speech?, Bloomberg Law Reports – Technology Law, Vol. 3, No. 14 (July 11, 2011). In the instant case, the court assumed, without deciding whether the Tinker standard applied, that the school violated the First Amendment because there was no substantial disruption on campus. While the court acknowledged that evidence of actual disruption is not required, it noted that the School "must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint." T.V. at 22. The court determined that a mere disagreement amongst the volleyball team did not rise to the level of a substantial or material disruption. As such, the court granted the plaintiffs' motion for partial summary judgment and denied the defendants' motion for summary judgment.
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