Sexting, Texting, Facebook and other Challenges

Karen Haase & Kelley Baker Harding & Shultz

(402) 434-3000khaase@hslegalfirm.comkbaker@hslegalfirm.com

Texting

Texting in Investigating Teacher/Student Relationships

Graham v. Ambridge Area Sch. Dist.

David Costanza slept with student

Sued School

Ct. denied Summary Judgment; school could be sued

Court Relied on These Facts:

Student testified about crude remarksCostanza: “I got in trouble.”Written reprimand without follow upPrincipal: “I don’t know what you’re

doing and I don’t want to know …. School knew Costanza communicating

with students via IM, e-mail and texts

Sexting

Miller v. Skumanick

Girls sexted; prosecutor offered class on sexting or criminal charges

Parents: “forced re-education” District Court: granted TROThird Circuit: No basis for

transmission of child porn; no evidence of knowing transmission

Did not address First Amendement

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 chargedJury trial; boy convicted Appeal rejected by Iowa Supreme

Court

Cell Phones

Walters v. Dobbins (Ark.)

Boy speaking at “Class Day”• Played clip from cell phone• “oh my gosh, I’m horny!”

Boy suspended for 3 days; no commencement ceremony

Arkansas Supreme Court• Due process provided• No First Amendment Violation

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. Hermatage 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. Hermatage 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 FridayDecision -- ??

Facebook and StudentViolations of Code of Conduct

A.Z. v. Doe (N.J.)

Heroes and Cool Kids ProgramAnonymous Parent sends school pics

from FacebookStudent sues “John Doe”; serves

subpoenaDefendant: no defamation therefore

no caseCourt: truth is an absolute defense

Sexting, Texting, Facebook and other Challenges

Karen Haase & Kelley Baker Harding & Shultz

(402) 434-3000khaase@hslegalfirm.comkbaker@hslegalfirm.com