The First Amendment has trumped privacy rights as a Washington state jury rejected the case of four high-school students who claimed they did not consent to having details of their sex lives disclosed in the school newspaper.

The students sued the Puyallup School District after they were named in an article about oral sex published in JagWire, the student newspaper of Emerald Ridge High School. The suit alleged they only agreed to be interviewed for the story on the understanding that “their names would be withheld and that their candid answers would be anonymous.”

“There was no reason to include the specific identities of the four students who were singled-out, nor was there any reason to disseminate the private details of their sexual histories to the entire student body at Emerald Ridge,” the complaint, filed in November 2008, said.

The article quoted one of the students saying of oral sex, “I was 15. I was horny. It wasn't really a relationship at that point. I'd known the guy for a week.”

But a Pierce County Superior Court jury last month voted 10-2 to reject the students' privacy claim, agreeing with the school district that the article was protected under the First Amendment because it addressed a matter of “legitimate public concern.”

A JagWire survey had found that many Emerald Ridge students treated oral sex like nothing more than “making out.” “This was an article that was needed and that the students felt addressed a topic the school wasn't adequately addressing,” defense attorney Mike Patterson (Patterson Buchanan Fobes Leitch & Kalzer, Seattle) said in his closing argument.

Jurors also returned a defense verdict on the plaintiffs' claim that school officials were negligent in allowing JagWire to publish their names — even though the trial judge instructed the jury that school officials do not offend the First Amendment by exercising control over the content of student newspapers “so long as their actions are reasonably related to legitimate educational concerns.”

The school district had asked Judge Susan K. Serko to apply the more protective standard of Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503 (1969), which says officials can only censor speech that would seriously disrupt classroom or school activities.

“It's a great relief to be able to say that there is still no documented case of a school being successfully sued for a penny over something its newspaper has published,” the executive director of the Student Press Law Center said.

The article about oral sex was published in the February 2008 edition of JagWire. In researching the story, a student journalist allegedly asked the plaintiffs if they had performed oral sex.

"The questions were intimate and highly personal in nature, and the student Plaintiffs would not have responded to the survey had the understanding been otherwise,” the suit said.

The plaintiffs alleged that after the story was published, other students “made insinuating and sexually degrading comments” about them, referring to them as “sluts.” One plaintiff was allegedly approached at her workplace by a male student who asked her “how the biggest whore at Emerald Ridge” was doing.

“These kids got branded with a scarlet letter,” their lawyer, John R. Connelly of Tacoma, Wash., told jurors. “It got to the point that they didn’t want to go to school. It was incredibly humiliating, shameful, embarrassing.” He asked the jury to award about $5 million in damages.

But Patterson said the student who interviewed the plaintiffs had their permission to quote them. “They agreed to be quoted,” he said. “They knew their names would be used.”

Since the publication of the article, the district has tightened its editorial control, authorizing school principals to review publications before they go to print and reject objectionable content. Emerald High's principal reprimanded the school's journalism instructor for his “lack of oversight” in his role as advisor for JagWire.

By Matthew Heller
5/4/10