Over the years I’ve cataloged the difficulties courts and public schools have had with drawing the line between merely childish expression protected by the First Amendment and disruptive behavior that schools can lawfully punish. In many cases those issues get easier in the university setting, because the students are now (legally) adults in a setting with fewer restrictions on expression.
On the other hand, college students are also proving increasingly adept in using social media to torment and manipulate their peers, and more of these situations are resulting in discipline. The entire world is now familiar with the story of Rutgers student Tyler Clementi, who jumped to his death in 2010 after roommate Dharun Ravi surreptitiously used a webcam and iChat to broadcast Clementi’s sexual encounters online. Earlier this year, sports media got caught up in the “catfishing” scam that fooled college football player Manti Te-o into thinking he had an online girlfriend.
Around the same time that Te-o was in the midst of this scam, two students at Ball State University were actively carrying out a similar plot against a former roommate of theirs at the school. In the fall of 2011, they created a fictional high school sophomore named “Ashley,” through which they initiated an online relationship with the student (who would come to be referred to only as “Target” in subsequent litigation.) The plot was so elaborate that the students–Messrs. Zimmerman and Sumwalt–even enlisted the help of an actual teen girl to text with the Target.
Zimmerman and Sumwalt eventually arranged for Target to meet “Ashley” at a movie theater. But when he showed up, they were waiting for him with a video phone, which they used to record and post the encounter to YouTube with the title “[Target] is a pedophile.”
Target reported the harrassment–which also included on-campus physical pranks–to university authorities, which eventually led to disciplinary action under the school’s Code of Conduct. Zimmerman and Sumwalt admitted that their actions violated the Code, but later brought suit challenging the university’s right to discipline them.
In April 2013, the US District Court for the Southern District of Indiana rejected their claims and upheld the punishment. Although universities are not governed by the same First Amendment balancing test that the Supreme Court laid out for public K-12 schools in Tinker–in which schools may punish student expression if it threatens a substantial disruption of the learning environment–the Indiana state statute governing universities’ disciplinary power used similar language. Specifically, it enabled universities “to prevent unlawful or objectionable acts that … violate the reasonable rules and standards of the state educational institution designed to protect the academic community from unlawful conduct or conduct presenting a serious threat to person or property of the academic community.”
Not only did Zimmerman and Sumwalt maintain that their catfishing scheme was First Amendment-shielded expression, they also argued that it wasn’t “objectionable” under the statute. The court didn’t buy it. To the contrary:
The Court fails to see how their actions could not be considered objectionable. Further, it appears from the sequence of events that at least part of the Students’ goal was to “trap” the Target into facing criminal consequences for communicating with someone they wanted him to think was an underage female. Even throughout the disciplinary process, the Students were encouraging Ball State to investigate the Target for criminal behavior, going so far as to state that the Target “has committed a felony of child solicitation…,” and to assert that “[w]e are concerned that the persons involved seem to be expressing indifference to criminal behavior and sheltering the accused.” The Court finds that no reasonable jury could conclude that the Students’ entire scheme, culminating in videotaping the Target at the movie theater and posting the video on YouTube, was not objectionable.
Few reasonable minds could disagree with this conclusion. As the Court recognized, however, its ruling may stand in opposition to the direction society is moving on this issue. It took note that the term “catfishing,” which had only been coined in 2010, had already spawned an MTV reality show of the same name, and had become a sufficiently popular source of entertainment that it ” may cause viewers to lose that connection to it being a real event that left people feeling violated and hurt.”
All of this portends that the Ball State incident is highly unlikely to be the last catfishing scheme that school administrators at both the college and K-12 levels will be forced to deal with.