The Vexing Issues of Texting and "Sexting" in Public Schools

As a writer and reporter on the subject of educational reform, I am struck by the number of new constitutional issues arising these days in the public schools. My introduction to this came at the PJP conference this past February when I participated in the workshop run by Vic Walczak on a case involving the public schools and the subject of “sexting.” He and I have kept up since then and, let me put it this way, Vic Walczak is a busy man.

In fact, while we were meeting in the National Constitution Center last February, Walczak, who is the ACLU’s legal director for Pennsylvania, had three different cases before the federal Third Circuit Court of Appeals just around the corner.

Most of the Jennings Fellows who were in the sexting session had not heard of Tunkhannock, PA (a former lumber town, population roughly 2000, in the northern part of the Keystone State) where the sexting students went to school; and those of us over the age of 30, still trying to understand what texting was all about, were soon to learn that sexting is the practice of sending sexually explicit photographs by cell phone – and lots of kids were doing it, including in Pennsylvania.

When school officials in Tunkhannock discovered explicit pictures on several students’ cell phones, they turned the matter over to the local district attorney, George Skumanick, Jr. who decided to prosecute – rather, he decided to threaten to prosecute.

Among the many thorny issues suddenly on the table was whether children could be prosecuted for distributing non-lewd, semi-naked photographs of themselves – could you be both a perpetrator and a victim in the same crime? In this case, two girls were posed from the waist up in their bras and a third girl was shown just emerging from the shower with a towel wrapped around her waist. In fact, Miller v. Skumanick (eventually Miller v. Mitchell in the appeals court) got even more interesting because the prosecutor told the dozen or so students that he would not prosecute them if they accepted school suspension, submitted to drug tests, wrote an essay about their infraction, and attended a five-week re-education program in which they would admit that what they did was wrong and that the girls had learned what it meant to be a girl in today’s society.

Now it was not just a free speech case, it was about “compelled speech.” (Having just finished a book about the Pledge of Allegiance, I am familiar with the Jehovah’s Witnesses successful defense of their children’s right not to be forced to say the Pledge at school, as determined in West Virginia Board of Education v. Barnette, but that was 1943.) Moreover, the sexting case was about compelling speech under threat of prosecution. Three students refused the prosecutor’s offer, but Walczak did not wait for him to make good on his prosecution threat; instead, he had the ACLU petition a Pennsylvania federal district court to grant a temporary restraining order prohibiting Skumanick from proceeding.

In a March 2009 ruling, Judge James Munley wrote that while such an injunction is an “extraordinary remedy,” he would grant it here because, first, “the parents in this case have a Fourteenth Amendment substantive due process right `to be free from state interference with family relations.’” He also found that that they had made a strong case -- would be “likely to succeed on the merits” -- that “being compelled to describe their behavior as wrong on threat of a felony conviction forces them to express a belief they do not hold and thus violates their right to be free of compelled speech.” Munley also ruled that the “threat of prosecution has a chilling effect on plaintiffs expressing themselves by appearing in photographs, even such innocent photographs as those in bathing suits.”

In March of this year, shortly after the PJP conference, the Third Circuit Court of Appeals agreed, ruling that prosecution of the case was “in retaliation for [the plaintiffs’] exercise of her constitutional rights not to attend the education program,” effectively ending prosecution of the case before it began. Even though the Court did not reach – because it didn’t need to – the alluring question whether a child sending a picture of him or herself can be child pornography, the victory was an important message to prosecutors that the Constitution sets limits on their authority to prosecute students for sexting.

The other two pending school-related cases that Walczak has overseen involved important questions about the lines of school responsibility and authority. In two separate cases students – one in middle school and one in high school -- had created Internet websites mocking school principals. In both cases, the sites were created at home and during non-school hours. While the law regulating students’ expression inside the schools is pretty well established, what, if any, authority school officials have over students’ off-campus speech is not. And anything students say on the Internet, from anywhere, is accessible at school. So the novel legal question becomes how far school officials can go in policing students’ off-campus speech.

“In recent years, courts have heard cases about a YouTube video and a Facebook group; about MySpace profiles and a blog,” wrote Clifford Marks in the Wall Street Journal on July 3. “Some insult principals; at least one attacks a student. But the law remains murky, and judges have ruled for either side in seeking to determine when the right to free speech online trumps schools' power to discipline bad behavior.”

"There are lots of moving pieces at the moment and many pending cases and cases that have come out various ways," John Palfrey, a Harvard Law School professor, told Marks.

And, as proof of Palfrey’s pudding, two separate Third Circuit panels in February ruled differently. One decided that the high school student’s right to free expression were violated and that school officials’ authority over students’ off-campus speech was limited; the other, that the school had the right to discipline the student and that it made no difference that the students’ speech originated off campus.

Both cases were reargued before the court’s full complement of fourteen judges in early June. Walczak and the ACLU contended that students’ rights can legitimately be curtailed in school, as the Supreme Court has already ruled, because of the special “in loco parentis” characteristics of the school environment. But, Walczak argued, once students leave the school they regain their full free speech rights. Equally important, parents regain their rights and interest in being able to decide how to raise their own children, and that includes how, or if, they should be disciplined for what the kids say on the Internet from home. In other words, while school officials may be able to take some action against students for off-campus speech, their authority should be far more circumscribed than when they regulate students in school.

As Marks concluded, “specific guidance from the Supreme Court would be welcomed by school districts” to resolve this difficult issue.

In the meantime, we are soon likely to get decisions from the two Pennsylvania cases. Stay tuned.

--Peter Meyer, 2010 “Peter Jennings Fellow”