“Not Much Good Takes Place at Slumber Parties for High School Kids, and This Case Proves the Point”

So begins T.V. v. Smith-Green Community School Corp. (N.D. Ind. Aug. 10), which (1) holds that a high school violated plaintiffs’ First Amendment rights when it suspended them from the volleyball team because they had posted a raunchy video of themselves on the Internet, and (2) holds that the school’s code of conduct allowing suspensions for “act[ing] in a manner in school or out of school that brings discredit or dishonor upon yourself or your school” is unconstitutionally vague and overbroad. (Both holdings, I think, are correct, given the Court’s precedents; I briefly explain my thinking at the end of the post.) Here are the relevant facts about the speech involved:

[D]uring the summer of 2009, T.V. and M.K. were both entering the 10th grade at Churubusco High School, a public high school of approximately 400 students. Both T.V. and M.K. were members of the high school’s volleyball team, an extracurricular activity, and M.K. was also a member of the cheerleading squad, also an extracurricular activity, as well as the show choir, which is a cocurricular activity. [Obligatory Glee reference.-EV] Cocurricular activities provide for academic credit but also involve activities that take place outside the normal school day.

Try-outs for the volleyball team for the coming year would occur in July. A couple of weeks prior to the tryouts, T.V., M.K. and a number of their friends had sleepovers at M.K.’s house. 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.

T.V. posted most of the pictures on her MySpace or Facebook accounts, where they were accessible to persons she had granted “Friend” status. Some of the photos involving the lollipops were also posted on Photo Bucket, where a password is necessary for viewing. None of the images identify the girls as students at Churubusco High School. Neither T.V. nor M.K. ever brought the images to school either in digital or any other format. In their depositions, both T.V. and M.K. characterized what they did as “just joking around” and disclaimed that the images conveyed any scientific, literary or artistic value or message, but testified that 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.”

The school got wind of this, and suspended the girls “from extracurricular and cocurricular activities for a calendar year,” though the punishment was later reduced to a six-game suspension for T.V., and a suspension from “five games and a show choir performance” for M.K. The girls sued, claiming the suspension violated the First Amendment. Here’s what the court held:

1. The video and the conduct that it depicted was presumptively constitutionally protected, because the conduct was a performance and the video a record of the performance. “The record supports the conclusion that, although juvenile and silly — and certainly not a high-minded effort to express an idea such as burning a flag or wearing a black arm band — the conduct depicted in the photographs was intended to be humorous to the participants and to those who would later view the images. In fact, the humor (such as it is) derives from the fact that the conduct, featuring toy props and ‘joke’ lollipops, is juvenile and silly and provocative. No message of lofty social or political importance was conveyed, but none is required…. 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…. [T]he Supreme Court has said that ‘a narrow, succinctly articulable message is not a condition of constitutional protection.’ The sexual tableau created by the plaintiffs was obviously staged with the intention to entertain themselves (and the later audience of their peers who viewed the pictures) with what they considered silly lighthearted humor.”

2. The material didn’t fit within the First Amendment exception for obscenity, because it didn’t depict sexual conduct specified by state law (such as “an act involving … a sex organ of one person and the mouth or anus of another person” or “the penetration of the sex organ or anus of a person by an object”). Nor did it fit within the First Amendment exception for child pornography, because it didn’t depict an actual sex act or even a realistic impression of an actual sex act.

3. The Supreme Court’s decision in Bethel School Dist. No. 403 v. Fraser, which held that the state acting as K-12 educator has extra authority to discipline students for vulgar speech, even speech that’s protected against criminal punishment or civil liability, doesn’t apply to off-campus speech.

4. The Supreme Court’s decision in Tinker v. Des Moines Indep. Cmty. School Dist., which held that the state acting as K-12 educator has extra authority to discipline students for speech that is likely to substantially disrupt the activities of the school, doesn’t apply here, because there wasn’t enough showing of such substantial disruption. (The court assumed without deciding that Tinker applied to off-campus speech that had effects on-campus, because it held that Tinker wouldn’t justify the school’s actions even if it did apply to off-campus speech.) Here’s the court’s analysis:

Tinker says, [“]in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk…. In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it 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. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.[“]

Defendants’ showing of actual disruption is extremely weak. Petty disagreements among players on a team — or participants in clubs for that matter — is utterly routine…. [S]chool officials cannot point to any students creating or experiencing actual disruption during any school activity. Instead, the officials merely responded to the complaints of parents (two in all), and the complaints do not appear to have been confirmed with any students or coaches. As was true of the armbands in Tinker, the photos in this case could be said, at best, to have “caused discussion outside of the classrooms, but no interference with work and no disorder.” Certainly no evidence has been presented of the kind of serious issues enumerated recently by the Seventh Circuit as indicative of substantial disruption: “[s]uch facts might include a decline in students’ test scores, an upsurge in truancy, or other symptoms of a sick school.”

In sum, at most, this case involved two complaints from parents and some petty sniping among a group of 15 and 16 year olds. This can’t be what the Supreme Court had in mind when it enunciated the “substantial disruption” standard in Tinker. To find otherwise would be to read the word “substantial” out of “substantial disruption.” See e.g. J.C., 711 F.Supp.2d at 1119 (for Tinker “to have any reasonable limits, the word ‘substantial’ must equate to something more than the ordinary personality conflicts among middle school students that may leave one student feeling hurt or insecure”); Scoville v. Bd. of Educ. of Joliet Township, 425 F.2d 10, 14 (7th Cir.1970) (protected speech that “undoubtedly offended and displeased the dean” but is not shown to have substantially disrupted or materially interfered with school activities cannot be punished).

As for the forecast of substantial disruption from the “publication” of the photographs on the internet, the school defendants assert rather summarily that the Tinker standard is met. But they offer little, either in evidence or argument, as to the nature of the feared disruption…. This thin record does not support a determination as a matter of law that the school officials made a reasonable forecast of substantial disruption.

5. The school’s actions violate the First Amendment even though they only involved suspension from noncurricular activities, and not from school generally. “The constitutional right at issue is freedom of expression, not that of participation in extracurricular activities. That there is no constitutional right to participate in athletics or other extracurricular activities may be pertinent to an analysis of other sorts of constitutional claims, such as a Due Process claim, a Privileges and Immunities claim, or an Equal Protection claim, but as Tinker itself notes, not to a freedom of expression claim.”

6. The school’s code of conduct, “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,” is unconstitutionally overbroad, as applied to speech. The code “may … reach a [broad] variety of speech or expressive conduct that would be protected by the First Amendment. Examples could include marching for or against certain political or social causes, or publicly speaking out on topics school authorities deem taboo. And much of such speech or expressive conduct, as in this case, would not meet Tinker‘s substantial disruption standard so as to render it subject to school discipline.”

7. The code of conduct is also unconstitutionally vague, as applied to speech, even though the vagueness doctrine doesn’t apply as stringently to the government as K-12 educator as it does when the government is acting as sovereign (for instance, imposing criminal liability for speech). “The notion of good character inherent in [the terms ‘discredit’ and ‘dishonor’] introduces a nebulous degree of value judgment. Issues of character and values involve such a broad spectrum of reasonable interpretation (but also strongly-held disagreement) as to be insufficiently conclusive for a disciplinary standard. In other words, the meaning of the terms may be readily understood by persons of ordinary intelligence, but ready agreement about all the conduct and circumstances they apply to cannot reasonably be expected.”

8. “To sum up: no reasonable jury could conclude that the photos of [T.V.] and M.K. posted on the internet caused a substantial disruption to school activities, or that there was a reasonably foreseeable chance of future substantial disruption. And while the crass foolishness that is the subject of the protected speech in this case makes one long for important substantive expressions like the black armbands of Tinker, such a distinction between the worthwhile and the unworthy is exactly what the First Amendment does not permit. With all respect to the important and valuable function of public school authorities, and the considerable deference to their judgment that is so often due, ‘[i]t would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities.’ Layshock v. Hermitage School District, –– F.3d ––, 2011 WL 2305970, *9 (3rd Cir. June 13, 2011).”

9. My conclusion: 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.