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Matthew Hoy currently works as a metro page designer at the San Diego Union-Tribune.

The opinions presented here do not represent those of the Union-Tribune and are solely those of the author.

If you have any opinions or comments, please e-mail the author at: hoystory -at- cox -dot- net.

Dec. 7, 2001
Christian Coalition Challenged
Hoystory interviews al Qaeda
Fisking Fritz
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Saturday, October 22, 2005
High art in high school: The San Dieguito Union High School District is facing a potential $1.5 million lawsuit over photographs taken last spring for Torrey Pines High School's Literary magazine. The story first broke in Friday's Union-Tribune. I encourage you to read Sherry Saavedra's front page story, but the important facts are these:

  • The photographs were taken without the prior approval of any of the minor students' parents.
  • The photographs -- for a school-sanctioned publication -- were taken without any adult supervision.
  • The photographs show the students in various states of undress. Though there is no nudity per se (the students were wearing underwear), there are a couple of photos where an underage girl is shown with only her hair covering her breasts.

There's no doubt that the photographs are, from a photographic and artistic standpoint, well done. I would have no problem if these photos appeared in a junior college literary magazine. But the fact is that they appeared in a high school literary magazine and all the participants were underage.

Torrey Pines High School officials, in an attempt to cover their own butts, have taken a laughable position that "even if they had known," they were powerless to stop it.

Principal Rick Schmitt said he didn't see the photographs until the posters went up and the magazine was printed, but he believes the First Amendment and state law would have prevented school officials from stopping publication.

"Unless it's considered lewd, obscene or patently offensive, we don't have the right to stop it," Schmitt said. "In response to this publication we're working with our attorney to find a balance between students exercising their First Amendment rights and learning about journalistic artistic responsibility and understanding the community's standards."

"Lewd, obscene or patently offensive" is a high standard -- a too high standard. Frankly, if that is the bar, full frontal nudity would be allowed in these photographs. As I noted before, they are artfully done and certainly not prurient, and a female nipple showing wouldn't change that.

Mia Boardman Smith, the club adviser and a journalism teacher at the school, said she hadn't spoken with the student models before or since the photos were taken and didn't know ahead of time exactly what kinds of photos they had planned to take.

But she said she asked Franks, then a high school senior and co-editor of the magazine, more than once if the models had received their parents' permission. Franks said the students told him their parents approved, Smith said.

Boardman Smith said she then raised the issue of the potential to upset or offend readers. She, Franks and another student, who was a co-editor and photographer, researched federal and state Supreme Court cases, as well as the California Education Code, and sent a copy of the publication to the Student Press Law Center in Virginia. She said the center, a nonprofit organization that provides legal information to student journalists, found the publication acceptable.

In the end, she concluded that not only did the students have the right to publish the pictures, but the school administration didn't have the right to stop them.

So, instead of talking to a lawyer -- they did some research themselves. It's been almost a decade since I took media law in college, but let me just say that I'm a little wary that a few high school students would get an accurate take on all aspects of the applicable law on their own.

Well, I suppose it depends on who you ask, because Peter Scheer had a different take.

Peter Scheer, executive director of the California First Amendment Coalition, said because the students were younger than 18 they weren't in a position to consent to being photographed.

"I think that there's a problem here for the school, and that problem is that you have minors posing in their underwear for a school publication," he said. "Because they're minors, they can't really consent legally to being photographed."

There are others quoted who disagree, including the president of the Society for Professional Journalists and the aforementioned Student Press Law Center -- though it is unclear either saw the photos themselves. Frankly, I find neither of their arguments particularly persuasive.

While you can point to step after step where school officials made mistakes -- beginning with advisor Boardman Smith's lazzie faire approach to supervision -- a $1.5 million lawsuit is way out of line.

In a less litigious atmosphere, the following steps would probably be sufficient to prevent a reoccurance:

  • Removal of Boardman Smith from her position as advisor to the school literary magazine.
  • A written, formal apology from the principal and district superintendent.
  • A set of written rules that ensure that parents are notified beforehand of any non-candid photographs taken for a school publication, and that an adult or faculty member is present when a photo shoot is taking place.

We're staring down a slippery slope here, largely because these teachers and administrators don't believe they have the power to halt anything short of Hustler magazine-explicit photographs.

Another unfortunate result of this imminent lawsuit (because the school district will almost certainly reject the claim), is that I'm wary of publishing the scans that I have of some of these photographs so there can be a fully informed discussion of these issues. I've no doubt that I can publish them under the fair use doctrine, but they include possibly embarrassing images of an underage girl whose parents didn't give permission for her image to be taken in the first place. Though I wasn't involved with the decision, I think this is probably the reason the Union-Tribune didn't publish any of the images in question in the first place.

For another view on the issue, check out this column by the Union-Tribune's Logan Jenkins.

5:32 PM

It seems to me that the First Amendment issue is secondary, or perhaps even irrelevant. What is at stake here is not so much the right of a student magazine to publish nude photos (I doubt the flap would have been as intense if the mag had published similar photos of Angelina Jolie or some anonymous model), but rather the school's imprimatur on the nude posing of the minor students in its charge. Whether or not the school has the right to ban publication of the photos, it certainly has the right to ban nude posing of minors without (and perhaps even with) their parents' permission. By focusing on the First Amendment issue, the school is using a magician's trick to divert attention from its actual malfeasance.
Supreme Court stated that someone under the age of 18 had the mental capacity to decide whether or not to have an abortion. If they can make that decision, frontal nudity is mundane by comparison.
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