Wednesday, May 1, 2013

Sexual Pictures Lead to Debate Over Student's Free Speech Protection


The integration of technology into society has led to common misconceptions of its place within constitutional law. As civil liberties intertwine with a constant outlet for personal expression via the Internet, questions arise about where the line of free speech should be drawn for students.
In 2011 the court analyzed the case of two students of Churubusco High School, refered to as T.V and M.K, who were minors at the time of a volleyball team slumber party that took place outside of school grounds and during summer break of 2009, T.V and M.K posed with penis shaped lollipops for pictures that they later posted to Facebook and MySpace, intending for them to be taken as a joke, according to the testimony of the two girls. The pictures were later brought to school grounds by the parent of a fellow student and shown to the principal and volleyball coach. The two girls, who were on the volleyball team, were banned from extracurricular activities, forced to apologize to their coach and attend counseling, reported Huffington post.

The girls were accused of breaking the school district’s athletic code of conduct by their coach, Austin Couch, although their pictures displayed no obvious ties to the high school.
In 2011, U.S District Court of Indiana Fort Wayne Division ruled that Churubusco High School had violated the First Amendment rights of two female students by punishing them for photos they had posted online. Since the photos were taken off of school grounds and were not a leading source of disruption in their school, the photos were accepted as protected expressions of speech.
  The decision, made in part by U.S District Judge Philip Simon, came after a trial prompted by ACLU and the families of the two students in which the plaintiffs sought damages from the corporation. (T.V v Smith-Green Community School Corporation NO. 1:09-CV-290-PPS.)

The request for damages was denied because the school was considered to be immune from damages by the court.

So I find here as well, and conclude that Principal Couch has qualified immunity from damages because, on the current state of the developing law in this context, particularly involving student speech originating off-campus and by use of the internet, Couch's actions could reasonably have been thought to be consistent with the rights they are alleged to have violated (DE 71-1 pg.43-44).”
Although not an issue of first impression, this case displays the vivid reality of adolescence clashing with a public exchange of free expression.

In further cases, T.V v Smith-Green Corporation was referenced to establish the very lines of what is considered as in-school conducted speech and what qualifies as off ground expression. (Kowalski v. Berkeley County Schs. 2011 U.S Briefs 461, 2011 U.S. S. Ct. Briefs LEXIS 1910 Oct.28, 2007, Tatro v. University of Minnesota 2010 MN S. Ct. Briefs 1440, 2011 MN S. Ct. Briefs LEXIS 94 Minn. Nov. 7,2011, Cate v. City of Burlington 2012 VT S. Ct. Briefs 227, 2012 VT S. Ct. Briefs LEXIS 65 Vt. Dec. 6, 2012.)

Since the internet is virtually everywhere, schools and courts alike have a tough job distinguishing between punishable grounds and an individual’s right to free speech off of school property. Accessibility to the Internet while on school grounds changes the factor that out of school activities can make their way into the school much easier. This issue makes it hard to both maintain a secular school establishment and protect the rights of the individuals attending those schools.

In his summary, Simon categorizes the case best by saying:
“Ridiculousness and inappropriateness are often the very foundation of humor. The provocative context of these young girls horsing around with objects representing sex organs was intended to contribute to the humorous effect in the minds of the intended teenage audience. As I noted when setting the oral argument, the Supreme Court has said a narrow, succinctly articulable message is not a condition of constitutional protection,”(T.V v Smith-Green Community School Corporation NO. 1:09-CV-290-PPS. Pg. 10.) 

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