Racy Facebook Photos Protected by Constitution, Ind. Court Rules

By Stephanie Rabiner on August 18, 2011 12:15 PM| No TrackBacks

When a group of teenage girls attending Churubusco High School in Indiana spent a summer sleepover posting racy Facebook photos of themselves interacting with multicolored phallic lollipops, they had no idea that their behavior would soon be the subject of a lawsuit.

But when the school got wind of the photos, the girls were suspended from extracurricular activities for part of the upcoming school year, forcing them to file suit.

And last week, a federal judge in Indiana agreed with the teens, finding that off-campus racy Facebook photos are indeed entitled to First Amendment protection.

In coming to this conclusion, the judge noted that, even though the photos are silly and lack a serious message, they are still protected as depicting symbolic speech, as the conduct was intended to be humorous and would be understood as such by their teenage audience.

And while schools can at times limit such student speech, this was not one of those cases.

Though the Supreme Court has yet to rule on whether schools can punish students for off-campus speech, a number of appellate courts have allowed such punishment when off-campus speech becomes an in-school problem, such as with bullying.

However, courts have only allowed this to occur when off-campus student speech "materially and substantially disrupt[s] the work and discipline of the school."

According to the ruling, the only disruption at Churubusco High School was on the volleyball team, where the girls were divided over the appropriateness of the racy Facebook photos, causing two parents to complain.

So even though posting racy Facebook photos is not the brightest or most sophisticated idea ever, the lack of substantial disruption gave the teens the right to engage in such behavior, and Churubusco High School had no right to stop them.