Let’s Talk about Sex, Baby (and some other social media stuff) Karen Haase karen@ksbschoollaw.com KSB School Law @KarenHaase
What’s the Deal? First Amendment Rights Threatening Speech Sexting Internet Safety
First Amendment
Byrnes v. Johnson County Comm. College (KS 2011)
Nursing students at JCCC • Took pictures of themselves with a placenta • Instructor granted permission to take the photos, • Re Facebook: “Oh, you girls.” College dismissed from the nursing program because the post violated the “sense of propriety” of school Students sued claiming violation of 1st and 14th Amendments
Byrnes v. Johnson County Comm. College (KS 2011)
Court • The “sense of propriety standard was “unclear, unpublished, and unfair to require students to comply with.” • “Photos are taken to be viewed. . . . By giving the students permission to take the photos, which [the instructor] admitted, it was reasonable to anticipate that the photos would be shown to others.”
Tatro v. Univ. of Minn. (MN 2009)
Student in the Mortuary Science Program Student posted about “Bernie” • getting to “play” with Bernie • “want[ing] to stab a certain someone in the throat with a trocar.”
Student dismissed from the program Sued on First Amendment grounds
Tatro v. Univ. of Minn. (MN 2009)
MN Court of Appeals applied “Tinker” Supreme Court of Minnesota: • Tinker not the standard for college • “A university may regulate student speech on Facebook that violates established professional conduct standards…with the qualification that any restrictions on a student’s Facebook posts must be narrowly tailored and directly related to established professional conduct standards.”
Stacey the Drunken Pirate
Snyder v. Millersville Univ. ( D. Ct. Penn. 2008)
Student teacher urged students to visit her MySpace Page • comments criticizing her supervisor • photograph of her wearing a pirate hat and drinking from a plastic cup with the caption “drunken pirate” School refused to let her complete student teaching; couldn’t graduate without student-teaching practicum
Snyder v. Millersville Univ. ( D. Ct. Penn. 2008)
First tried to sue school, case dismissed Then sued university claiming violation of First Amendment Court: No protection because postings dealt only with purely personal matters, not issues of public concern
Key v. Robertson (E.D. Va. 2009)
Law student at Regent Univ. posted image of Pat Robertson giving the middle finger Student ordered to remove and apologize Sued Court: No First Amendment rights against private university
Tyler Clementi Rutgers University Roommate: Dharun Ravi
Used a webcam to view a private romantic encounter between Clementi and "M.B.“ In the second incident, Ravi urged friends and Twitter followers to watch via his webcam a second tryst Clementi took his own life
New Jersey v. Dharun Ravi (NJ 2012)
Charged with invasion of privacy, witness tampering and bias intimidation Sentenced to • • • • •
30 days in jail 3 years probation 300 hours of community $10,000 fine Counseling on cyberbullying and alternate lifestyles
Notice of Tort Claim by Clementi (NJ 2013)
Clementi family filed notice of tort claim Claimed Rutgers failed to protect Tyler University denied liability – litigation in progress
Threatening Speech Neb. Rev. Stat. 28-311.01 Terroristic Threats: “threatens to commit any crime of violence … • With the intent to terrorize another • In reckless disregard of the risk of causing such terror Class IV Felony punishable by: • Up to 5 years in prison and/or • $10,000 fine
Barnes v. Zaccari (11th Cir. 2013)
Protests about construction of a new parking deck Facebook posts •“Zaccari Memorial Parking Garage”
University president expelled without notice or hearing •Satisfactory academic performance •Mental health testimony that Barnes was not a threat
Barnes v. Zaccari (11th Cir. 2013)
The Eleventh Circuit •The state was required to provide notice and some sort of hearing. •an objectively reasonable person would not have found Barnes presented a threat to safety
Yik Yak
State v. Clemmens
State v. Clemmens Arrested within a few hours Charged with making terroristic threats Sentenced to • 5 months probation • Banned in 4 counties • 2 years of no social media
Sexting
Sexting Sexting, v: (a combination of sex and texting) is the act of sending sexually explicit messages or photos electronically, primarily between cell phones.
How Common is Sexting?
June 2014 survey by Drexel University 80 70 60 50 40 30 20
all teens
10
12‐14 y/o
0
Snapchat
In re Juvenile John Does (Fairfax Co. Va 2013)
Girls Snapchatted video to boy He forwarded screenshots to friends Three boys arrested at school Each charged with 12 counts of distribution of child pornography Found guilty Appeals rejected
The Internet knows everything
Florida v. Alpert Girlfriend sent pics He forwarded pic to all contacts Convicted of distribution of child pornography On sex offender registry until he’s 43
Nebraska Law Neb. Rev. Stat. 28-813 et. seq. Makes sexting (images) a class IV felony for offenders under 19 Class IIIA felony for 19 and up Both punishable by: • • •
Up to 5 years in prison and/or $10,000 fine Require sex offender registration
Survey of County Attorneys 90 80 70 60 50 County Attys
40
NE Co. Attys
30 20 10 0 Charged minor Charged adult
Allowed diversion
Plea agreement
Internet Safety
Wisconsin v. Stancl High school student posed as a girl, tricked male classmates into sending nude photos Then blackmailed boys into sex acts • Thirty-one victims • Then took photos of the physical encounters
State v. Gallegos 16-year-old girl met 17-year-old guy on Kik Talked, became friends Asked her for pictures She said OK Then said he’d share those photos with her classmates unless she met him
Things to Think About Before Pressing “Send” or “Post”
Don’t assume anything is private Majority of sexting incidents involve pictures sent to boyfriend/girlfriend The National Center for Missing & Exploited Children has identified 2,100 victims of online porn, ¼ sent the first images themselves Every message is stored on a server
If something makes you uncomfortable, don’t do it 40% of teens say “pressure from guys” is the reason girls post sexual messages and pictures
Consider the recipient’s reaction Nationally, boys have been criminally prosecuted for sending unsolicited sexts
Nothing is truly anonymous
Questions?
Questions? (402) 499-0547 KSB School Law @KarenHaase KarenHaase karenhaase