2012 Presentation to Millard Coaches

Sexting, Facebook and YouTube: Legal issues with Technology that Every Coach Should Know Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com

Technology and YOU

Technology and Staff  Causes for Concern - Drug/Alcohol Use - Sexual Inappropriateness - Inappropriate Communication with Students - Inappropriate Communication about Students - Selling School Property

Student Use of Technology

Facebook and Student Violations of Code of Conduct

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: truth is an absolute defense

YouTube and Student Violations of Code of Conduct

J.C. v. Beverly Hills Unif. Sch. Dist. (Cal.)  8th grade girls talking smack about a peer; uploaded to YouTube  Principal suspended student who uploaded  Court: no disruption to school, no nexus to education, no basis for punishment

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?  Sexually suggestive photos sent:

– 20% overall –22% girls –11% young teen girls (ages 13-16) –18 % boys

How Common is Sexting? Sexually suggestive messages sent: –39% of all teens –37% girls –40% boys 48% of teens say they have received sexting photos or messages.

Sexting? Material can be distributed via: -Text messages -Downloads onto laptops/computers -E-mail -Downloads onto i-pods/mp-3 players -Social Networking Sites

Sexting?

Criminal Implications Under Nebraska Law  LB 97

─ Codified at Nev. Rev. Stat. 28-818

 Class IV felony to

─ knowingly solicit, coax, entice, or lure ─ a child sixteen years of age or younger ─ by means of an electronic communication device ─ to post images that would qualify 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 is of someone at least 15 picture was taken voluntarily picture was given voluntarily picture contains only one child defendant hasn’t shared the picture; AND defendant didn’t coerce taking or sending

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

Legal Implications For School Administrators  Litigation over Punishment of Students for Sexting

─ Neilson v. Northshore School District ─ Quiblan v. Northshore School District

Practical Steps in Dealing with Sexting in Schools 1. Education a. Students b. Staff c. Parents d. Community

Practical Steps in Dealing with Sexting in Schools 2. Have a Clear Policy a. Search and Seizure 1. Klump v. Nazareth Area School District 2. In Re Michael R.

Practical Steps in Dealing with Sexting in Schools 2. Have a Clear Policy a. Search and Seizure b. Prohibit Possession 1. LB 97 doesn’t limit schools 2. Include in handbook

Practical Steps in Dealing with Sexting in Schools 2. Have a Clear Policy a. Search and Seizure b. Prohibit Possession 1. LB 97 doesn’t limit schools 2. Include in handbook 3. SUPERVISE LOCKER ROOMS

Practical Steps in Dealing with Sexting in Schools 3. When You Catch Kids Sexting

Facebook

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

J.S. v. Blue Mountain Sch. Dist.  Third Circuit • “off campus speech that 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: no one would take profile 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 profiles • Students only accessed off campus • Student suspended for 10 days; placed in alt. sch, banned from 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 last Friday  Decision -- ??

Sexting, Texting, Facebook and other Challenges Karen Haase & Kelley Baker Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com kbaker@hslegalfirm.com