The American Civil Liberties Union filed a lawsuit on Wednesday against an Indiana middle school for expelling three students who allegedly threatened to kill other classmates on Facebook. The ACLU suit says the girls' right to free speech was violated and the use of emoticons and "LOL" showed they were only joking.
The three students, all 14-year-old girls, were expelled from Griffith Middle School in Lake County, Ind. in early February following comments they'd made on Facebook about "whom [among their classmates] they would kill, and how they would accomplish this feat, if they had the opportunity," according to the lawsuit filed at the U.S. District Court in the Northern District of Indiana.
The controversy began after school on the afternoon of Jan. 24, when one of the girls posted a Facebook status update "concerning her disdain for cutting herself while shaving her legs," according to the court documents. The update was only visible to that particular girl's Facebook friends. Then the three girls began commenting on the status update from their personal home computers, allegedly joking about various topics in some 70 comments that were posted in the span of two hours, according to Gavin Rose, the ACLU of Indiana attorney representing the girls.
The conversation then turned to which of their classmates they'd like to kill, but Rose says that because the girls peppered their comments with smiley-face emoticons and Internet expressions like "LOL" indicating laughter, they should not have been taken seriously by the school.
"It was done so in an entirely jestful fashion, as exemplified by the fact that when you are serious about something, you don't follow it up with 'LOL,'" Rose told ABCNews.com.
"No reasonable person would conclude that these girls were actually going to inflict harm on anyone," he said.
The lawsuit alleges that no one, including the girls, mentioned the Facebook conversation at school the next day, but that on the day after that, the mother of one of the girls' classmates showed a printed transcript to school administrators. The girls were each called to the school administrator's office and suspended for 10 days "with recommendation to expel."
Following their suspension, the school held a formal expulsion hearing, where the three girls and their parents were present. An "expulsion examiner" reviewed the facts and ultimately recommended that the girls should be expelled, according to court documents. The girls will be allowed to return to the school district in the fall as ninth graders, but will miss the rest of their eighth grade school year.
Griffith Middle School principal Edward Skaggs told ABCNews.com that the school would not comment on the case, and directed inquiries to the district's legal representatives.
The school has 21 days to respond to the plaintiffs' lawsuit.
According to Rose, one of the students named by the girls in their conversation submitted a letter to the expulsion examiner, saying that he didn't think the girls should be kicked out of school, and that he'd understood what they'd meant.
"It was the type of conversation that every eighth grader has had with their friends," said Rose, but with the growth of social media, "these personal conversations are suddenly available to school administrators."
The school's right to control speech that didn't take place on school grounds depends on whether the girls' conversation presented a "material and substantial disruption," according to Ruthann Robson, a constitutional law expert and professor at the City University of New York School of Law.
While the school has a reason to be concerned about death threats given the spate of suicides connected to online bullying, Robson says the off-campus nature of the girls' conversation makes it tough to determine whether they presented a substantial disruption at school, particularly given recent cases that have favored the protected speech of students, not a school's right to curtail it.
For example, she said that after two similar cases in the 3rd Judicial Circuit involving students' speech on social networks received conflicting rulings on the very same day, the judges realized there was a controversy and decided both cases should be ruled in favor of the students' First Amendment rights.
"When disciplining students for speech that happens outside of school, schools can be on some shaky constitutional ground under the First Amendment," Robson said.