Racy Facebook pics are legally protected by US Constitution, judge rules

An Indiana judge has ruled that racy photographs posted online by teenagers should be considered free speech, and are therefore protected by the United States Constitution, reports Above The Law. Because of the First Amendment guarantee, schools may not, in any way, discipline students who post lewd photos of themselves online.

The decision is the conclusion of a lawsuit between a group of female students, who posted photographs of two salacious slumber parties to Facebook, and their school, Smith-Green Community School Corp, which disciplined some of the students for appearing in the photographs even though the pictures had nothing to do with the school or a school-related event.

You are probably wondering what kind of racy photographs could result in students being suspended. We’re a bit bashful, so we’ll just quote Judge Philip Smith, who writes in the official court decision [pdf] (WARNING: Not for the feint of heart):

“During the first sleepover, the girls took a number of photographs of themselves sucking on the lollipops. 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.

…

“During another sleepover, T.V. took a picture of M.K. and another girl pretending to kiss each other. At a final slumber party, more pictures were taken with M.K. wearing lingerie and the other girls in pajamas. One of these pictures shows M.K. standing talking on the phone while another girl holds one of her legs up in the air, with T.V. holding a toy trident as if protruding from her crotch and pointing between M.K.’s legs. In another, T.V. is shown bent over with M.K. poking the trident between her buttocks. A third picture shows T.V. positioned behind another kneeling girl as if engaging in anal sex. In another picture, M.K. poses with money stuck into her lingerie – stripper-style.”

Yikes…

According to court documents, T.V and M.K. were suspended from all extracurricular and cocurricular activities (namely, volleyball, choir and cheerleading) for the remainder of the 2008-09 school year by the school’s principal. The decision to suspend the girls was based upon a section of the handbook, which reads, “If you act in a manner in school or out of school that brings discredit or dishonor upon yourself or your school, you may be removed from extracurricular activities for all or part of the year.”

Judge Smith admits that the photographs are, indeed, off-color, to say the least. But that the low-brow status of the speech does not make it any more permissible for schools to discipline students for practicing their Constitutional rights, no matter how dishonorable.

“I wish the case involved more important and worthwhile speech on the part of the students,” writes Judge Smith, “but then of course a school’s well-intentioned but unconstitutional punishment of that speech would be all the more regrettable.”