A 14-year-old boy from Pennsylvania could be charged with "desecrating a venerated object” after he posted photographs of himself mimicking oral sex in front of a statue of Jesus to Facebook. The boy is potentially facing up to two years in juvenile prison if convicted. The rather mundane case could prove to be a fascinating first amendment study.
Teenagers and young adults have been at the forefront of testing the first amendment. Some have accidently broadened or narrowed the scope of freedom of expression in a series of bizarre, deadly and surreal cases. Here are six incidents that involve youth raising first amendment issues when interacting with traditional media, fashion and new technologies.
Olivia N. v. NBC
In 1981, a scene in the made-for-television movie “Born Innocent” was the subject of great controversy after allegedly inspiring the rape of a 9-year-old girl named Olivia. The plaintiff took NBC all the way to The Supreme Court and argued the network was responsible for airing a movie that had incited other minors to mimic the act using a bottle. The verdict established there was no concrete proof of incitement and therefore media could not be held liable for the reactions its content potentially had triggered. Nevertheless, the shocking case shed light on how media may or may not directly influence the actions of children and teenagers.
McCollum v. CBS
In 1984 John McCollum, a 19-year-old from California, shot himself in the head while lying on his bed listening to Ozzy Osbourne’s “Suicide Solution” lyrics. McCollum was known to suffer from substance abuse and emotional problems. The song preached suicide was the only way out for an alcoholic. His parents filed charges alleging negligence, product liability and intentional misconduct against the CBS record label.
McCollum's parents argued the defendant had negligently disseminated Osbourne’s music to the public and consequently had aided, advised or encouraged John McCollum to commit suicide as well as created an uncontrollable impulse in him. The court eventually dismissed the case and was reluctant to impose liability upon any public media for self-destructive or tortious acts alleged to have resulted from a publication or broadcast. Nevertheless, the case and the verdict raised several issues: Is Ozzy’s music incitement speech or merely lyrics and poetry? Does the artist have a responsibility to the public or fans? If the court had favored McCollum this would have changed the music industry forever and all forms of art for that matter. The company would have been obliged to withdraw all records sold and currently in stores, other musicians creating the same type of music would follow suit. Complete chaos is what the court envisioned if it went the other way.
Herceg v. Hustler Magazine
In 1987 a 14-year-old named Troy Dunaway read an article on Hustler Magazine titled “Orgasm of Death.” The text discussed the practice of autoerotic asphyxia – masturbation while hanging or strangling oneself in order to temporarily cut off blood supply and oxygen to the brain to achieve a more pleasurable ejaculation. An editor’s warning note strongly recommended readers not to attempt the act. Nevertheless, he was found dead with the open magazine on the article. His mother, Diane Herceg, sued Hustler alleging negligence, product liability, dangerous instrumentality, attractive nuisance and incitement. The case went to The Supreme Court, where it was ruled in the magazine’s favor. The dispute ignited the debate on how publications or media should present details or instructions explaining how to perform certain acts.
Eric VanHoven contests dress code policy
In 1997 a 19-year-old Michigan native named Eric VanHoven was suspended from Zeeland High School for wearing a t-shirt displaying the logo of the rock band Korn. He sued the school district alleging Zeeland High School officials had violated his first amendment rights as a student. The administration claimed VanHoven had violated the school’s dress code for wearing “clothing or items that imply obscenity, violence, drugs, alcohol, or sexual innuendo.” The case posed to be a pivotal first amendment dispute regarding student freedom of expression. However, VanHoven eventually dropped the lawsuit in exchange for the school eliminating the suspension from his record and reinstating him. The issue of dress code policies and fashion choices of students across the country remains debated.
Sexually enticing online images are protected
In 2009 two High school girls posted pictures online of themselves in lingerie, licking popsicles in a provocative manner. The girls were suspended and sued the Indiana school district in federal court. The defendants claimed the photographs were not a form of expression and therefore did not fall under the protection of the first amendment. Furthermore, school administrators alleged the phallic shape of the popsicles and the girls’ postures had caused disruption within the campus. However, a federal judge ruled in the girls’ favor and held the school’s suspension policy was unconstitutional. The case signified a major win in the realm of Internet racy images. Moreover, it showcased how technology is actively pushing first amendment boundaries. New technologies and social networks have given rise to groundbreaking disputes. Moreover, cyber-bullying and “revenge porn” (a term coined to describe posting compromising pictures of an ex) could trigger landmark cases in years to come.
The “boobies” bracelet case
In 2013 two Philadelphia middle school girls took their school administration to federal court after their breast cancer awareness bracelets were banned. Nevertheless, the judge ruled in the school’s favor and the Supreme Court rejected a hearing on the case. At the time the girls initiated legal action, they were 12 and 13 years old respectively, showcasing that age is no obstacle in summoning your first amendment rights.
Ken Paulson, president of the First Amendment Center, says that the statute -defacing, damaging, polluting or otherwise physically mistreating in a way that the actor knows will outrage the sensibilities of persons likely to observe or discover the action- being used to charge the 14-year-old Pennsylvania boy is “constitutionally suspect” and “extremely broad.”
He believes the first amendment triumphs over this law that says “you can be punished for outraging the sensibilities of others.” Paulson concludes the boy’s act constitutes expression.
“There is a message there; a message of mocking, disrespect, if there wasn’t a message people would not be offended in the first place.” He thinks the only cause of action the authorities could come up with is trespassing. If the case went to court and the statute is allowed to stand, then “any object respected by any faith in any culture will have to be protected,” according to Paulson.
Michael S. Overing, an attorney and Internet Law professor at USC, emphasizes “the first amendment is not absolute” and in order to punish the boy, “the government would have to show one of the exceptions applies.”
Citing a series of cases, Overing says the boy’s act did not constitute “incitement to imminent lawless behaviour” since he did not encourage others to break the law. Although “outrage sensibilities is the biggest problem here” he says the boy is not using “fighting words” and “challenging people to a duel.” According to Overing the job of the police is to stop people when they are outraged to the point of violence, “they cannot punish people because the actions taken by the speaker stir people’s emotions.” In other words, as long as the authority can control those who are offended from breaching the peace, the boy’s actions should be protected.
The desecration allegations are not likely to stand in court. But the case adds to a long list of incidents that have redefined American freedom of expression in extremely peculiar ways.