Free Speech

Judge: Racy High School Slumber Party Photos Posted to Facebook May Not Be "Important" or "Worthwhile," But They're Still Protected Speech

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This week's ruling in T.V. v. Smith-Green Community School Corp. starts with a declaration that "Not much good takes place at slumber parties for high school kids, and this case proves the point." In the opinion, the judge rules that high school officials who suspended several female students from the volleyball team for posting racy, sexually connotative photos to Facebook during a slumber party were in violation of the First Amendment. It also strikes down the school's rather Klingon code of conduct, which gives school officials the authority to suspend students for actons that bring "discredit or dishonor upon yourself or your school."

Law professor Eugene Volokh thinks the court got it right:

What children did at 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.

Ars Technica notes the judge's own lament about the ruling:

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.

Not exactly the most stirring defense of free speech, but it gets the important idea right: The First Amendment exists to protect speech that people don't like as much—and perhaps more—than speech that's widely deemed good, important, or worthwhile. 

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  1. It also strikes down the school’s rather Klingon code of conduct, which gives school officials the authority to suspend students for actons that bring “discredit or dishonor upon yourself or your school.”

    Slumber parties are Fek’lhr’s workshop. The school board should kill you where you stand!

    Also, if school administrators cannot police students outside of their jurisdiction, then how are the kids going to learn about an overreaching governing body?

    1. It also strikes down the school’s rather Klingon code of conduct, which gives school officials the authority to suspend students for actons that bring “discredit or dishonor upon yourself or your school.”

      Actually the language there is less Klingon and more Article 133 of the Uniform Code of Military Justice. e.g. “Conduct Unbecoming an Officer”

  2. This article is worthless without pictures.

    (someone had to say it)

    1. Saw this on barstool yesterday. Pics seemed like they weren’t that bad, just suggestive bj-style posing with lollipops. Regardless, I am 100% behind the right of girls to be slutty.

      1. Link?

        1. They didn’t have the actual pics, just a graphic description of the actual content: Indiana Court Upholds The Rights Of Sluts To Act Like Sluts

        2. In one, three girls are pictured and M.K. [a plaintiff] added the caption “Wanna suck on my c**k.” 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. [the second plaintiff] is pretending to suck on it?

          1. **drools uncontrollably**

            I hope they need to fly somewhere soon.

          2. sucking on one lollipop while another lollipop is positioned between her legs and a fully-clothed T.V. [the second plaintiff] is pretending to suck on it

            So it’s like tranny porn?

            1. Yes please!

      2. Why can’t this type of behaviour be mandatory? And televised?

        1. I like the cut of your job, and will support you during the next school board election.

          1. …I also like the cut of your jib, etc. etc.

    2. There was a news story on one of the trashy network morning news shows (is there any non-trashy TV news outside of C-SPAN?) about lingerie for 5-9 year olds. And to make their point, they kept showing the pictures over and over and over and over again.

      FFS – I don’t want to see suggestive pics of 14 year old slumber party idjits and I sure as fuck don’t care to see them about 8 year olds.

      1. I have no problem with sexualizing toddlers and tweens. The Man has no right to stifle my creativity!

      2. “Lingerie for 5-9 year olds”

        Seriously, that’s fucking gross. I’ll gander creeper-like at the odd high school jailbait (who really, really, REALLY is trying to pass for 21) once in awhile…but 5-9? *barf* That’s just wrong…this coming from someone with NO standards, mind you…

        Blechh – BARF gross.

        1. Right, but the real market for that stuff are the kids’ mothers.

          These things won’t sell because creepy pedophiles are buying them to dress up their sex slave children.

          They will sell because skank hosebags will buy them for their wretched offspring. Because they will think they’re “cute”.

          1. That’s also gross. Blech. *barf* Fucking soccer moms should go back to sharing Vicodin in their backyards and ignoring their kids drowning in the McPools.

            1. “McPools”? So now even a pool is conformist(!)?

              Who can keep up with you kids these days…

              1. He’s a libertarian. He hates everything.

          2. I don’t know if they even make real panties for teenage girls anymore. Wife joked while folding clothes the other day that all ten pairs of 18 year old daughter’s panties fit in her bra cup. Fucking gross.

            1. Why is your wife folding your daughter’s clothes? It shouldbe the other way around.

            2. Was that a ‘DD’?

          3. It’s more about letting your girl play dress up with her mom, actually.

            Wierd, but some women really think their kids need to be indoctrinated into “proper” make-up, hair-styling, fashion, and accessorizing from a young age.

            Otherwise, they might not be popular in high school. Or something.
            If your kid can’t do her nails properly by the time she’s 8, she’s going to be an outcast.

      3. Sure, show that over and over and it’s fine, but some guy taking a picture of kids outside in a playground *must* be a pedophile! And heaven forbid any photo of a kid end up on *gasp* the internet!!!!

  3. 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.

    It’s not a question of control, it’s a question of whether the school must continue to provide services to those who violate its code of conduct. It boils down to whether a public school suspension constitutes coercion, as the bill of rights only applies to coercive actions.

    If this were a private or parochial school there would be no question of the legality of the school suspending people for this.

    1. Your last sentence is the whole reason this is in court. It’s the whole reason we argue about prayer, speech, evolution, sex ed, etc. I think I know a solution, though.

      1. Increase funding for public schools?

        1. If by increasing funding you mean shutting them down and replacing them with an entirely private school system, yes.

          1. I’m glad to see you’ve passed this test. The libertarian inquisition will be pleased!

      2. Introduce more-restrictive rules – “for teh childrunz”?

        1. teh childrunz

          Internet baby-talk. It’s not funny. Just stop it.

    2. If this were a private or parochial school there would be no question of the legality of the school suspending people for this.

      No shit, Sherlock.

      Private institutions don’t have to conduct themselves in accord with the Constitution.

      …it’s a question of whether the school must continue to provide services to those who violate its code of conduct…

      Yeah, it does.

      Don’t like it?

      Abolish the public school system.

      Until you do that, it’s a public space funded by public funds.

      Can a public school make being a Jew against its “code of conduct”?

      1. Actually, that’s not entirely right. Private school systems are prohibited by the Constitution from enslaving their employees.

        1. *look of shock*

          Really? Oh, boy, they’re not gonna like this at the PTO meeting…

        2. I believe the 13th Amendment prevents the states from making slavery legal. So it’s still a limitation on the states.

          Private institutions already had to obey the laws of their states regarding enslavement.

          Slavery is never a per se private activity. It requires the connivance of the law or it’s just kidnapping.

          1. I can’t recall where I read this, but I’m pretty sure the 13th Amendment is viewed as applying to everyone, not just government. It’s unusual in that. However, I also doubt that’s ever come up in a court opinion.

          2. Here’s the relevant part of the text: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

            1. Right, but if I lived in New York in 1859, and caught random people and forced them to work on my farm, that was already illegal.

              Abolishing slavery was a matter of overriding elements of state law that created a class of non-persons at law.

              Dred Scott had the status of property because that was what the law said about him, and not because of the private act of his owner.

              1. State laws don’t really create property rights. If something totally new pops up, I don’t have to wait for the state to enact a law making it legal for me to own it.

                Regardless of what states do or don’t do, the 13th Amendment makes slavery illegal in the United States. Look at the language–no “shall make no law” or anything like that; slavery simply “shall [not] exist.” Period.

                1. Except when government does it directly, I should add. See prisoners, conscripts, soon doctors.

                2. State laws don’t really create property rights.

                  In this case, sure they do.

                  We need to know what human beings are eligible for ownership and which are not.

                  The law has always been the only way to know that.

                  1. You simply know nothing about slavery law. Nothing!

                    1. Dude, I’m having a business card made up with my title as “Slavery Lawyer”.

                    2. I think there’s a big future in slavery law.

                    3. The future is now.

                      “Tax Lawyer”.

              2. How many times do we have to go through this? Listen, the Fugitive Slave Act is the law of the land. If you don’t like it, write to your congressman to change it. In the meantime, Negro slaves who escape to the North must be returned to their rightful owners. I thought Reason supported property rights. Those who offer succor to these escaped slaves are breaking the law. Period.

                1. DIAF spoofer.

                2. Didn’t Thomas Jefferson offer succor to slaves?

      2. Don’t have a cat, fluff. I’m just AskingQuestions?.

    3. It’s not a question of control, it’s a question of whether the school must continue to provide services to those who violate its code of conduct.

      The real question is why a public school has a code of conduct that regulates anything beyond behavior on school grounds or at school-sanctioned events.

      1. Because they’re statist pigs?

        1. Because it’s the only way they can see the pictures? And then take them home and spluge on their sweetie’s face?

          1. Geez – and I’ve been spelling it “sploog” all this time…

            1. you are all wrong. The correct spelling is spooge.

    4. Tulpa, this is about – at heart – whether a school should have a “code of conduct” at all.

      This is about kids setting up webpages or Facebook-y style accounts – *off school property* – yet are policed, for the lack of a better term, for stuff they post online WHEN THEY ARE NOT ON SCHOOL PROPERTY.

      Note the difference.

      1. D’oh… what Kinnath said above.

      2. Again, if it were a private school we would have no problem with such a policy (at least no constitutional problem — you may well think it worthy of criticism and not sending your kids there).

        The complication here is the school being funded with taxes and peopled by the compulsory schooling laws.

  4. It also strikes down the school’s rather Klingon code of conduct, which gives school officials the authority to suspend students for actons that bring “discredit or dishonor upon yourself or your school.”

    The school administration was getting tired of having to defend its decisions in bat’leth duels in any case.

    1. The healthcare costs were spiraling out of control.

      1. Real Klingons don’t go to doctors.

        1. whoops. These ARE school administrators though….

    2. Things were a whole lot easier back in the good old days when they could discipline students with pain sticks.

      1. Or calm them down by giving them bloodwine.

  5. Gee, I can’t wait for this to go to SCOTUS so Thomas can disappoint me again.

    1. He be okay with it so long as the girls were using the lollipops to look for Advil…

  6. Pictures! Where are the pictures?

    1. I had the pics till the girls’ parents made them unfriend me. 🙁

  7. for everyone demanding pics:

    That black&white; of the chicks facing away from the camera isn’t doin it for ya?

  8. “the volleyball team post[ed] racy, sexually connotative photos to Facebook during a slumber party”

    Pictures or it didn’t happen.

    1. H&R should show porn! Who’s with me?

      1. It almost did, one year ago today.

        1. *moment of silence*

          1. [Silently blinks eyes to emulate blink tags.]

            1. [Loudly blinks eyes just to prove it can be done]

              1. [Pulls jeans up.]

                1. Wrong direction Shay.

        2. Holy shit i almost forgot.

          Remember Aug 18th!!!

          1. A great day in American history. And in freedom.

            1. Not to mention self-importance!

  9. This is in a tradition of “living constitution” decisions.

    The First Amendment starts with the word “Congress,” but we’re expected to believe that the 14th Amendment changes that to “Congress, the states and their subdivisions, including public school districts.”

    From the standpoint of freedom, there is little to choose in arguments about policies in government schools, since the government schools themselves pose serious problems for freedom.

    But the federal constitution, if properly applied, does not allow the federal government to meddle in matters of public-school discipline, any more than it allows the feds to abolish public schools altogether.

    If the feds want the states to adopt better education policies, then they can reform the schools over which they have direct jurisdiction, such as the District of Columbia schools – make these schools the showcase of the country so that state will want to imitate them!

    1. The 14th Amendment prevents the states from denying my kid the equal protection of the laws (including access to all public benefits like education) on the basis of his exercise of an enumerated right.

      If any public school official attempts at any time to exercise any control whatsoever on any action of my kid outside of school time, I will make a fucking project of destroying that individual’s career, life and family. Period.

      You don’t get to decide if my kid can take stupid pictures or not. If you try, I will do whatever I can to punish you forever. There will be no court case you can settle or apology you can issue.

      1. Internet Tuff Gai III: Fluffy’s Revenge

        Would the same unquenchable hatred burn in your soul for a private school official who did this? If not, your amygdala is pretty good at discriminating.

      2. That was fantastic! Encore!

    2. I think I agree with you (to some extent). But anything that strips power from the asinine prigs that run public high schools ultimately has to be a good thing in my opinion.

    3. 1st Amendment applies to the States through the 14th Amendment, and applies further to the subsidiary branches of the States, which include public school systems.

      Jeez, Ed, try to catch up to at least the latter part of the 19th century.

      1. That’s not what the text says. You can’t simultaneously carp about there not being any exception to the freedom of speech written in the text of the 1st and then apply a very non-literal interpretation to the 14th.

        The incorporation doctrine is nice fiction to have around but it’s pretty hard to justify for the parts of the BoR that merely restrict Congress, like the 1st amendment.

  10. pics plz

  11. Not much good takes place at slumber parties for high school kids, and this case proves the point.

    Odhinn fucking damn it I cannot stand this attitude. I realize the ruling is from Indiana, but is there something about being from an idiotic rural area or getting old that makes one think of sex as a primarily negative thing for adolescents? Was my experience just dramatically different from many other peoples? I cannot understand for the life of me why any parent who claims to love their children would want them to be deprived of sex after they have come of age.

    Sure there are dangers involved in having sex, kind of like every other fucking thing we do in life. Teach your kids to be smart about choosing partners, protecting themselves emotionally in relationships, and proper STI protection and screening protocols. Claiming that they should just abstain because risk exists strikes me as batshit insane.

  12. Suderman, I think you misread the Judge. I read it as him regretting that this wasn’t for something more important because it would resonate more. He plainly states that this is unconstitutional with no caveat. IMO, this is a blanket statement that virtually all speech away from campus is protected speech and the school has no standing.

    Just my opinion, but take another look at his quote and see if you still disagree.

    Oh, and pics or GTFO.

    1. i read it that way too. like the judged wished the school had punished the girls for overtly political speech, b/c then everyone would see them for the dicks they are.

    2. If the statement is that broad it’s in conflict with SCOTUS precedent, namely the “Bong Hits 4 Jesus” case.

  13. OK, I found the slumber party pictures. They are NSFW, and you might want to delete them from your computers after viewing.

    1. I fapped!

        1. Check your available wireless networks. If “FBI_SURVEILLANCEPARTY_VAN” is on the list, you done fucked up.

        2. So that data plan isn’t working out too well, then. Or is the keyboard too small for your sausage fingers?

          1. DO. NOT. FEED. THE. TROLLS. PISSPANTS.

    2. Oh, I’m sorry, I just realized that my link was to an innocuous photo of an old lady sleeping.

      Here are the real pictures.

  14. Not much good takes place at slumber parties for high school kids, and this case proves the point.

    What do you mean nothing good? Racy pictures of a high school girls volleyball team sound good to me.

  15. I wonder if schools have finally crossed a line. not a free speech issue, but people are running for school board here in Fairfax in part because of a backlash to zero tolerance policies.

    http://www.washingtonpost.com/…..story.html

    1. Good for them. It’s a shame that the pot has to boil over before someone turns off the flame.

  16. Threadjack!!!

    Surprise hearing tomorrow in the West Memphis Three case.

    http://www.arktimes.com/Arkans…..g-tomorrow

    1. You’re trying to threadjack a post about teenage volleyball players posing in their underwear?

      Virginia Postrel would never have allowed this.

      1. “”You’re trying to threadjack a post about teenage volleyball players posing in their underwear?””

        Yeah, what the hell was I thinking?

  17. This does bring to mind the time when I was working/living in northwest Ohio a couple years ago, and was going through town on my motorcycle following a school bus with (evidently) some HS girls sports team aboard.

    Unlike (apparently) the 99.9% of bikers in Ohio who are stupid, I always wear a full-face helmet, so I know they couldn’t see my face.

    Well, it wasn’t but about 1 block before there was a back window FULL of HS’ers lifting their shirts and showing they titties. I started laughing, since my daughter was likely a classmate of most of them at the time.

    Anyway, was a nice diversion, they turned a couple blocks later, I finished my ride.

    AND NOTHING ELSE HAPPENED.

  18. You left out the part where you chased the bus Road Warrior style.

    1. “YOU CAN RUN! BUT YOU CAN’T HIDE!”

    2. …and then raped the shit out of everyone in it, and blocked the doors from the outside with everyone still aboard, and then torched the motherfucker and smiled as their screams slowly died away.

      I mean, right? Who’s with me here!

      1. OK fantasy, but like everything else it needs more peanut butter.

  19. Call me crazy, but I don’t see how the First Amendment is in any way relevant here.

    It seems to me MIND YOUR OWN FUCKING BEESWAX should be quite sufficient.

  20. I’m curious about this ruling. Back when I was in high school, I was an athlete. If we were caught smoking or drinking ouside of school, we could be suspended from the team. These rules were put in place by the Minnesota State High School League. Does this mean the MSHSL can no longer suspend kids for that?

    1. Because sports are an extracurricular activity, blah blah blah — or some crazy shit like that.

    2. Seeing as those are crimes,* I’d say they could enforce that rule.

      *not defending that those should be crimes.

      1. So is posting revealing pictures of underage girls to the Internet.

  21. It was because of the extracurricular nature of it… I wanna say it was Justice Thomas on this one… but I may be mistaken, or drunk.

  22. OK, now I know exactly what you are talking about. WOw.

    http://www.total-anon.at.tc

  23. This is an interesting area of the law – student free speech rights when it comes to off campus speech – as the courts across the country are divided on the issue. It won’t be long before one of the cases makes its way to the Supreme Court. For more about this issue, check out: http://www.internetsafetyproje…..e-internet

  24. we could be suspended from the team. These rules were put in place by the Minnesota State High School League. Does this mean the MSHSL can no longer suspend kids for that?
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  25. The statement that “not much good takes place at slumber parties” irks me – as though every single moment of a person’s life has to be devoted to school/work approved activities. Control freaks, all of them.

    Jokes aside, the girls were just doing something natural: exploring sexuality in an apparently non-threatening way and in an apparently safe environment. And even if the activity was completely frivolous and had no perceived value* whatsoever, who cares? Who got hurt?

    *value being entirely subjective, yadda yadda

    How do you fight this from the inside? That’s a serious question.

    1. Agreed.

      Out of curiously, I wonder if boys go through the same sort of vaguely bisexual adolescent explorations that girls do.

      I’m sure there’s plenty of horsing around that would look extremely embarrassing on facebook and which everyone does but never speaks of again, ever.

  26. Do you want to find cheap corsets online? If you do you won’t be the only one. Everyone is trying to cut back on what they spend these days, but most of us are reluctant to stop spending money altogether, especially when it is on something that makes us feel so good.

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