Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech–TV v. Smith-Green

By Eric Goldman

T.V. v. Smith-Green Community School Corp., 2011 U.S. Dist. LEXIS 88403 (N.D. Ind. Aug. 10, 2011).

It appears we will get a steady stream of legal rulings about teens being teens while playing around with Facebook accounts. The last time we blogged on this topic, In re Rolando S., the court whiffed by holding that joyriding someone else’s Facebook account was felonious identity theft. In this case, involving school discipline for racy Facebook photos, the court reaches a more sensible result.

The court summarizes the background:

During a summer sleepover, plaintiffs — 16 year old T.V. and 15 year old M.K. — posed for some raunchy photos which they later posted online [to Facebook, MySpace or Photobucket]. When school officials caught wind of the saucy online display, they suspended both girls from extracurricular activities for a portion of the upcoming school year.

The court describes the photos:

Prior to the first sleepover, the girls bought phallic-shaped rainbow colored lollipops. During the first sleepover, the girls took a number of photographs of themselves sucking on the lollipops. In one, three girls are pictured and M.K. added the caption “Wanna suck on my cock.” In another photograph, a fully-clothed M.K. is sucking on one lollipop while another lollipop is positioned between her legs and a fully-clothed T.V. is pretending to suck on it.

During another sleepover, T.V. took a picture of M.K. and another girl pretending to kiss each other. At a final slumber party, more pictures were taken with M.K. wearing lingerie and the other girls in pajamas. One of

these pictures shows M.K. standing talking on the phone while another girl holds one of her legs up in the air, with T.V. holding a toy trident as if protruding from her crotch and pointing between M.K.’s legs. In another, T.V. is shown bent over with M.K. poking the trident between her buttocks. A third picture shows T.V. positioned behind another kneeling girl as if engaging in anal sex. In another picture, M.K. poses with money stuck into her lingerie — stripper-style.

I haven’t seen the actual photos, but I can draw four conclusions from this court’s description:

1) This isn’t really my kind of humor, so I totally missed the joke. But then again, I wasn’t part of the intended audience.

2) As a parent, I probably would be disappointed if my daughter posted photos like this when she becomes a teen.

3) Members of Generation X and older believe photos like this could be debilitating to the teens in later life. It’s less clear that photos like this actually will debilitate Gen Y/millennials (I believe these girls just make that group, although there’s some debate about the cutoff for Generation Y) and subsequent generations. After all, a non-trivial percentage of Gen Y will have posted similar photos, so what seems odd to Gen X may seem natural to Gen Y.

4) These photos depict teenage girls testing their limits and exploring sexual topics. As the girls themselves explained, “the photos were taken and were shared on the internet because the girls thought what they had done was funny and ‘wanted to share with [their] friends how funny it was.'” We might wish they did so in a different fashion, and we certainly would advise them not to post the photos to a social networking site, but the girls are engaged in the kind of trial-and-error behavior we expect from teenagers.

Overall, while taking and posting the photos was probably an ill-advised choice, I can excuse those judgments as teens being teens. However, I cannot excuse the immature response of the school administrators, who disciplined the girls for the photos even though they had nothing to do with the school. The girls were active in school extracurricular activities (perhaps not surprisingly, one of them was a cheerleader), but these photos had no connection to those activities; and the photos caused some unwanted nattering in the halls–as would any off-campus development subject to the heightened drama of high school. As the court says edgily, “at most, this case involved two complaints from parents and some petty sniping among a group of 15 and 16 year olds.” In all other respects, the slumber parties and resulting photos were off-campus activities in every sense of the word.

So why did the administrators feel like they had to do something about them? As we’ve seen too many times before, school administrators (probably Gen Xers or baby boomers) apparently overreacted by applying their rules to a new generation developing its own–and different–set of rules. I remain hopeful that we’ll see fewer of these lawsuits as school administrators stop freaking out about the Internet. Reminder to other educators: the girls’ conduct presented a serendipitous teaching opportunity for all students, including the girls. Seize it, don’t squelch it!

The remaining question is whether the administrator overreaction violated any constitutional rights. The court answers yes because the photos were Constitutionally protected, and therefore disciplining the students for the photos violated the students’ First Amendment rights. The court virtually gnashes his teeth in reaching this conclusion:

I wish the case involved more important and worthwhile speech on the part of the students, but then

of course a school’s well-intentioned but unconstitutional punishment of that speech would be all the more regrettable.

Still, the judge correctly notes:

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.

Kudos to the judge for recognizing that these photos have significant speech implications, however questionable their wisdom or taste. Teens are going to misuse their social networking accounts, but the type of limit-testing they engage in is exactly what we need the First Amendment to protect.

On the other hand, I agree with the court that a lengthy federal court battle over the photos and the resulting discipline overdramatizes the situation. The school administration should have quickly backed off. Because they didn’t, the resulting costs of this litigation were a bummer for everyone. We may need more tailored adjudicative processes to cost-effectively resolve overreactions to social networking site posts.

Eugene Volokh’s take on the case:

I think this ruling is correct, given Tinker and Fraser. What children did as home is subject to discipline by those with authority of the home — the parents — if those authorities think that the behavior is improper. But government-run schools don’t have, and shouldn’t have, authority to control students’ speech 24/7, even when the students are outside school. And while it’s possible that they may discipline students for such speech when it truly substantially disrupts behavior inside the school, there has to be a pretty high bar for that, a bar that the school’s arguments didn’t clear.

A few related blog posts (a list that amply demonstrates the legal system currently isn’t effective at dealing with teens being teens online):

* Logging Into Someone Else’s Facebook Account and Posting Messages on Their Friends’ Walls Could Be Identity Theft — In re Rolando S.

* Cyberbullying and Restorative Justice [a Long-Delayed Post on DC v. RR]

* Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation–Doninger v. Niehoff (Guest Blog Post)

* Court Finds Juvenile Delinquent Based on Allegedly Offensive Instant Messages — In re Alex C.

* Private Facebook Group’s Conversations Aren’t Defamatory–Finkel v. Dauber

* Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles

* Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page–Draker v. Schreiber

* Teenager Busted for Creating Fake “News” Story