Semi-Nude Photos of Students in Literary Magazine Exposes Legal Conflicts

Tuesday, October 25, 2005 | This controversy has been simmering slowly since the Torrey Pines High School literary magazine called “First Flight” was released last June. The publication captured my attention back then and became great fodder for dinner discussions and conversations among friends, with its suggestive photographs of three partially clothed students, raw language and explicit art.

When it was released, students were mildly interested, some parents were aghast and school district administrators were nervous. This had lawsuit written all over it. Yet, the intriguing aspect of the provocative magazine centered for most of us not around good taste or whether some irate parent would sue, but rather on civil liberties, freedom of the press and how adult First Amendment rights may or may not extend to underage students – especially those smart enough to have fully studied and researched their legal rights.

The unfolding story has been fascinating, for two reasons. First, Torrey Pines, part of the San Dieguito Union High School District in North County’s coastal region, is my local high school. Second, the controversy between opposing points of view raises challenging constitutional issues that underscore the debate between legally guaranteed freedom of the press and the extent of the power of those in authority – be it parents, teachers, school districts or other governmental agencies – to restrict that freedom to protect a perceived greater good.

Since a $1.5 million claim was filed against the San Dieguito school district last Thursday by one of the literary magazine’s student models, Monterey Salka, and her parents, the academic discussions and heady hypotheticals have now been replaced by more straightforward conversations about possible ulterior motives, parental rights, accountability, educators’ responsibilities and practical applications of the law.

The Salkas, who live in Rancho Santa Fe, are claiming defamation, invasion of privacy, sexual harassment, negligence and inadequate supervision, as well as suggesting the district is guilty of libel and distribution of obscenity. The other two student models and their parents reportedly are comfortable with the pictures.

Last spring’s issue of the literary magazine, the “litmag,” was distributed free of charge to about 650 students on campus and featured a provocative 10-page photo spread of three TPHS students – all under 18, one male and two female – who posed using empty picture frames, blank and painted canvases and other minimal props. No private parts were shown, although in two photos Salka’s long hair was used to cover her breasts.

Although I’m no art critic, the photos, in my view, are tastefully done, certainly not obscene and are mild compared to the repeated exposure teens have to sex-saturated images in the media. They are, however, slightly suggestive.

Despite the tame nature of the pictures, the student litmag editors clearly discussed among themselves the potential for shock and controversy. Editor Matt Franks, now a freshman at Columbia University, wrote about the topic in the litmag’s introduction, calling the magazine’s contents “a diverse collection of provocative work.”

The student staff, with the assistance of an adult adviser and journalism teacher, made the carefully considered decision that they were free to publish under the protections granted them by the First Amendment and California Education Code 48907, protections they felt also relieved them of the need to receive prior approval from either parents or district officials.

Daniel Shinoff, of the San Diego law firm Stutz Artiano Shinoff & Holtz, called the case very interesting. “We’re talking about issues integral to our democracy,” he said. “We’re also talking about an incredibly bright group of kids who know their rights, and they were acting within the scope of their rights.”

Shinoff, who is legal counsel for a number of San Diego County school districts including San Dieguito, strongly defended the students and criticized the plaintiffs, lamenting how schools have become “a battleground for constitutional issues.” With so much litigation in schools, every teacher and adviser has had to become a constitutional scholar, he said.

“Schools find themselves in incredibly complex situations,” Shinoff said. “But students don’t leave their constitutional rights at the doorstep when they enter school grounds.”

If he had seen the litmag before it went to press, would Shinoff have advised the school district not to allow publication? “Then we would have had the ACLU on our front door, and they are very aggressive,” he said, referring to the American Civil Liberties Union.

Shinoff said this is not a business decision. He will advise the school board not to settle the case, but to reject the claim and proceed with litigation. “You have to take principled positions,” he said. “Otherwise, you open the floodgates. We will deal with this in the courtroom.”

The cash-strapped district, which just projected a $6 million deficit for the 2005-2006 school year, will be forced to pay to defend itself, using dollars “that are intended for the classroom,” Shinoff said.

The slippery slope

Code 48907 gives students working at public school newspapers, yearbooks and other school-sponsored publications wide latitude and the same freedoms granted to mainstream media, in general. The challenge is how to apply those freedoms when minors are involved.

When all the evidence is considered, those of us who value America’s freedom of the press, and those of us who consider that freedom one of the most important cornerstones of our democracy, must come down solidly on the side of the students and the school district in this case. It is a slippery slope if we do not.

This is much more than simply a dispute about whether suggestive photos taken of an underage female high school student were obscene, defamatory or should not have been published without prior written consent from the parents. Rather, this goes to the heart of constitutional issues secured under the First Amendment.

And nothing makes my teeth grind more than an assault on First Amendment rights.

That said, we must acknowledge that certain aspects of this case have an emotional effect, especially for parents. To dismiss the arguments of the plaintiffs as having no value or to condemn their position as being totally without merit is to deny the legitimacy of at least a portion of their argument. It’s not black and white, which is why this is so interesting.

Yet, in the end, the case made by the plaintiffs, which has implications that go far beyond restoring a teenager’s reputation, cannot stand up against such fundamental principles to our country as those embodied in the First Amendment.

Clearly, once the litmag was released, Salka and her parents had regrets. Although I can sympathize with their position, at some point teenagers, just like adults, have to take responsibility for the choices they make, even if they exercise poor judgment.

Further, who can say what obscenity is? Who defines good taste? These issues are a matter of personal interpretation, subjective and impossible to label precisely. Justice Potter Stewart said about pornography and obscenity in 1964 that he couldn’t specifically define it but “I know it when I see it.”

A professional model

Is it irresponsible to make these sorts of assumptions? If you take your child to a photo shoot at an off-campus studio without going inside to see what’s going on, is that not giving implied consent?

If parents or students feel uncomfortable, they certainly have the right to refuse to participate in any activity they find questionable. At some point, personal accountability for actions and decisions must kick in.

Should the school’s principal, district superintendent and school board members – all of whom say they never saw the publication until after it was printed and distributed – be held accountable for something they have no legal power to control? Do advisers have the right to kill a student-generated story even though running the story is protected by law, if there is even a remote possibility of a resulting lawsuit?

“It is a challenge,” said Peggy Lynch, back in early July when I spoke with her about the issue after release of the Torrey Pines litmag. Lynch, superintendent for the San Dieguito district and a former journalism instructor, said she thought she should have had prior review. “You want to protect people from things that leave them vulnerable legally. It’s so kids understand the ramifications.”

But Lynch, who would not comment on the issue after the claim was filed last week, also said in July that students have protected rights that limit her ability to interfere. “I honor their right to publish, but I’m not comfortable with it,” she said, referring to the litmag. “It’s not what I want to see.”

Torrey Pines Principal Rick Schmitt acknowledged that policy changes may be considered that might include prior review and potential restrictions on students’ free speech rights, but admitted that any attempt to interfere or even review the material before publication might be legally challenged. “It all comes down to, where do you want to get whacked?” he said.

Look for this issue to make national headlines, with savory ingredients like a beautiful professional model, underage nudity, free speech, controversial artistic expression, parental rights, educational battlegrounds and constitutional challenges.

Ironic, that one of the complaints from the family is that publication of the literary magazine has gained Salka unwanted attention as a sex object. A claim this hot that contends she should have her privacy? Forget that.

Please contact Marsha Sutton directly at