Update: S i Sexting, Facebook and YouTube
Karen Haase Harding H di & Shultz Sh lt (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase
Texting g
Texting in Investigating Teacher/Student /S Relationships i i
Graham v. A b id A Ambridge Area S Sch. h Di Dist. t David Costanza slept with student Sued School Ct. denied Summaryy Judgment; g ; school could be sued Ct. relied on fact that School knew teacher communicating via IM IM, eemail and texts, but didn’t follow up
Sextingg
Sexting? Sexting, v: (a combination of sex and texting) is the act of sending di sexually ll explicit li i messages or photos electronically, primarily between cell ll phones. h
Sexting? Material can be distributed via:
-Text messages -Downloads onto laptops/computers -E-mail -Downloads D l d onto t ii-pods/mp-3 d/ 3 players l -Social Networking Sites
Iowa v. Canal Boy and girl friends; not romantic • She asked him to send pic of penis • He complied • Both agreed not erotic Parents called the cops; boy charged Jury trial; boy convicted Appeal rejected by Iowa Supreme Court
Criminal Implications Under Nebraska Law Neb. Rev. Stat. 28-813 et. seq. Class IV felony to
─ knowingly solicit, coax, entice, or lure ─ a child sixteen years of age or y younger g ─ by means of an electronic communication device ─ to t postt images i that th t would ld qualify lif as child pornography under state law
Criminal Implications Under Nebraska Law Affirmative Defense:
─ the picture is only of the defendant;
─ ─ ─ ─ ─ ─ ─
or defendant was younger than 19 picture i is i off someone at least l 15 picture was taken voluntarily picture was given voluntarily picture contains only one child defendant hasn’t shared the picture; AND d f d defendant did didn’t ’ coerce taking ki or sending di
Practical Steps in Dealing with i Sexting S i in i Schools S When You Catch Kids Sexting
J.S. v. Blue Mountain Sch. Dist. Middle School Student made fake MySpace profile for principal • Included photo from school website • Initially public; then limited • Students could only access off campus • Student suspended for 10 days; parents sued d
J.S. v. Blue Mountain Sch. Dist. Third Circuit • “off “ ff campus speech h th thatt causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographic technicality in order to be regulated pursuant to Tinker.” • Dissent: i no one would take profile fi seriously
Layshock v. Hermitage Sch. Dist High School Student made fake MySpace profile for principal • Included photo from school website • Other students created similar and more offensive ff i profiles fi • Students only accessed off campus • Student suspended for 10 days; placed l d iin alt. l sch, h banned b d ffrom extracurriculars, no commencement
Layshock v. Hermitage Sch. Dist Third Circuit • No nexus under Tinker • No evidence of disruption • School Didn’t Meet Bethel Sch. Dist. v. Fraser – no relationship between expression and school
J.S. and Layshock Inconsistent Third Circuit granted en banc rehearing Oral Argument June 3, 2010 Decision issued June 13, 2010 The Bottom Line? Schools lost both cases
J.S. and Layshock Key legal points • School can’t punish off-campus speech because it is vulgar, inappropriate or even criminal • School S can only punish i off-campus ff p that is substantiallyy speech disruptive Oral Argument June 3, 3 2010 Decision issued June 13, 2010
What About the Staff? “We recognize that vulgar and offensive speech such as that p y in this case – even made in employed just – could damage the careers of teachers and administrators and we conclude only that the punitive action taken by the school district violated the First Amendment free speech rights i ht off JS.” JS ” i.e. “We don’t care”
Fulmer v. Swidler (Pa. 2003) Middle school student created Teacher Sux Sux” website “Teacher • Compared math teacher to Hitler • Had picture of her decapitated • Asked for contributions toward hit man Teacher sued Jury awarded $500,000 Similar Si il suit it by b principal i i l settled ttl d
Facebook and Student Vi l ti Violations off Code C d off C Conduct d t
A.Z. v. Doe (N.J.) Heroes and Cool Kids Program Anonymous Parent sends school pics from Facebook Student sues “John Doe”; serves subpoena Defendant: no defamation therefore no case Court: C truth h iis an absolute b l d defense f
Update: S i Sexting, Facebook and YouTube
Karen Haase Harding H di & Shultz Sh lt (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase