Not much, actually: the Durango (Colorado) High School girl who threatened to sue her school last year because they rejected her racy yearbook photos has pleaded not guilty to obstruction charges and could face up to a year in jail when she stands trial on January 24. This stems from an August 13 incident where police came to arrest her mother, Denise “Miki” Spies, for serving alcohol to Sydney and other underage friends at a party. Miki resisted arrest, and Sydney tried to prevent a police officer from going after her (more details, and the original article).
Miki’s felony charge of contributing to the delinquency of a minor has been dropped, but the misdemeanor resisting/obstruction charges remain.
- Update: Sydney has changed her plea to guilty. She’ll pay a fine and spend some time on probation. Miki still faces up to a year in jail if convicted.
Other than that, Sydney had a small part in a made-for-television horror film (American Horror House), probably because her name recognition — such as it is — gave the film some very inexpensive publicity.
The lawsuit against the school doesn’t seem to be happening: at least report, Sydney’s father (who for some reason is never mentioned by name) said the family was still looking for a lawyer to take the case.
We set up a poll earlier this year to predict what will have become of Sydney by the end of 2012. It’s close enough to the end of the year to predict that “None of the above” will be the winning response.
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The first lawyer she talks to will sadly explain to her that the publisher of a book retains sole discretion as to the contents thereof, and she is not the publisher of the yearbook. This is property rights 101. They’re throwing her a bone by allowing her to run the photo she prefers as an ad; they don’t have to do that, either.
Her “freedom of expression” has not been limited in any way, she remains free to publish or distribute her photo in any way she sees fit… including publishing her own yearbook, if she wishes (although she’ll need copyright clearances for copyrighted materials, such as other people’s photos and text).
After she talks to that lawyer, she may want to talk to a second lawyer.
That second lawyer might point out that when the publisher of the book is the government, the publisher may not have sole discretion due to constraints of the federal constitution, the state constitution, federal and state statutues, etc. . . Colorado Revised statutes 22-1-120 reads
Subsection 3 has obcentions for obscenity, slander, etc. . ., none of which appear to apply here, so this provides strong support for Ms. Spies. On the other hand, subsection (5) says
so a counter-argument could be made that it’s editors of the yearbook who have the discretion here, rather than Ms. Spies. I know nothing about relevant Colorado precedents or statuatory interpretation, but on the balance, a first reading of the state statutes appears to favor Ms. Spies. (I reserve judgment as to whether precedents regarding the Colorado or U.S. Constitutions might also support her case.)
I share Bill’s opinion that Ms. Spies’ protest is whiny and stupid, but her case does not appear legally unreasonable.
Except that schools generally do not publish yearbooks; rather a private company, Josten’s, does. It’s not clear that Josten’s does the yearbook in question, but they do serve 15 schools in Durango, CO.
Are they a state actor, or merely a licensee? Is publishing a high-school yearbook a function traditionally limited to the state?
I’m pretty sure the right of publicity in this case is limited to providing a suitable photo to the publisher, or being represented by a grey box with the words “not pictured” printed on it. That is, you can decline to allow them to print an unflattering photo, but you can’t force them to run the one you want.
I’m pretty sure that it’s Josten’s that gets the copyright (and thus, the right to make a profit from YB sales in future… or even pages from YB sales in the future, when somebody becomes famous for something).
How is this relevant to what I’ve already pointed out – that the relevant decision wasn’t made by Josten?
I would say that subsection 5 is the relevant one. This statute (like similar “student free speech” statutes in many jurisdictions) is limiting the right of the government (as implemented via the school and school board) to control student speech. Subsection 5 explicitly gives student editors the power to exercise such control (I read the “subject to the limitations of this section” to mean they are still bound by the limits of subsection 3, not that they can’t exercise the control that the school cannot due to subsection 1, otherwise subsection 5 serves no purpose). Therefore, the student editors were within their rights to reject the picture. What recourse might have existed had they rejected any picture from a specific student (because they, for example, disliked the student) isn’t clear, but in this case they seem well within their authority (unless they accepted any similar sorts of pictures from other students).
And all her classmates have the freedom of expression to look at her picture twenty years from now and say “I remember her. Man, what a slut”. Plus extra ammunition for ridicule at the reunion when she shows up 30 pounds heavier with three kids.
Really, now that she’s gotten her 15 minutes, who cares about the stupid yearbook? The exposure from this “dispute” far exceeds anything she could have expected from having her (actually, not really that inappropriate, compared to even the SI Swimsuit Issue) chosen picture included, without any fuss.
James@8:41: Josten’s status is irrelevant to this case. Josten, as a private company, undoubtably has a right to refuse to print a yearbook that it doesn’t wish to, but that’s not the issue at hand. The issue is whether the school has a right to refuse to use the picture that the student chooses when the school places the order with Josten. Whether Josten is a private or not is irrelvant to whether that decision is a state action.
It is debatable whether Ms. Spies has been barred from showing her photo by state action, but not because of Josten’s status. As I pointed out above, since the decision to bar the photo was made by the yearbook editors, it’s arguable under 22-1-120.5 that the relevant action was taken by the yearbook editors, that the public forum of the yearbook was opened solely for their use, and that they aren’t state actors. I would tend to bet against that argument, but it would require some factual determinations at trial to reject or accept it.
Ignoring the subsection 5 argument, it seems impossible to argue that Ms. Spies’s rights are limited to providing a “suitable photo” or being “not pictured.” Under 22-120.2, the yearbook is a public forum, which prevents any content-based regulation of the student speech. A rule preventing racy, but non-obscene photos, fails content neutrality, and I can’t imagine it satisfies strict scrutiny.
Not really saying that I side with this student, just saying that her legal case actually looks pretty good.
Except that a) the photo wasn’t banned, and b) the editors are allowed to impose reasonable standards. Otherwise, why have editors at all?
It was banned from that section of the yearbook (the spot reserved for Ms. Miers’s yearbook photo). The fact that an alternative spot was available for her, as an ad, at her own cost, is not a defense to a content based restriction. If it was, cities could prevent a march in a park by requiring the march to be held elsewhere, with a fee imposed on the organizers. (Normally, I would scoff at the idea that a yearbook was analogous to a park, but if they’re both public fora under Colorado law, and it appears that they are, then they’e analogous for free speech analysis.)
It’s not clear to me that the editors are allowed to impose “reasonable” standards in this section of the yearbook (the spot reserved for Ms. Miers). It’s arguable that they are (this is the subsection 5 argument that I was referring to). The editors clearly have control of much of the yearbook — i.e. they presumably own pages describing sporting events, school trips, prom, etc. . . The question is who has control of the part of the public forum reserved for Ms. Miers’s photo. In the event that school policies allow the yearbook editors to do whatever they want with that spot — e.g. refuse her photo regardless of how she’s dressed, replace her appropriate, school-taken photo with a drawing of a frog, etc. . . — then that spot is a public forum for the use of the yearbook editors, and they can impose whatever standards they want, “reasonable” or “unreasonable.” On the other hand, if they’re required to reserve that spot for Ms. Miers, and I suspect that they are, then the most natural (although not irrefutable) reading of 22-1-120 is that this particular spot of the yearbook is a public forum for Ms. Miers, and that the editors are not allowed to impose “reasonable” standards in this spot, but only those standards given in 22-1-120.3. I can’t think of an analogous case under public forum law where one private party (Ms. Miers) would own the public forum to the extent that she has a right to speech in that forum, but another private party (the yearbook editors) would have a limited right to impose “reasonable” standards, but not “unreasonable” standards. But it’s hard to think of analogous cases, since a yearbook photo is not generally a public forum.
I’m not saying that her case is surefire winner, just that a first reading of the Colorado statutes supports her. A determination as to who should win would require a more detailed knowledge of Colorado law, as well as probably some factual determinations at trial.
Of course, if she wins, the obvious response is to change to using ONLY school-supplied photos. Nationwide. Devastating the local photographer’s market, and causing millions of NEXT YEAR’S seniors to hate the little twit.
Meanwhile, the yearbook will be printed without her photo in it, and someone (the school?) will pay her the $1 in nominal damages.
That was my thought as well, James: that if this becomes too much of a bother for the school, they’ll go back to those everybody-looks-the-same photos that made up our high school yearbooks.
(And what was it about those photos that the girls all looked really good, better than they looked in person, while the boys all looked like goofballs? I always thought it might be because the girls felt good being all dressed up, while the boys felt like they were wearing their father’s suits)
Why would schools change their policies nationwide in response to a a right given under a Colorado statute?
Why? Two reasons:
1) fear of lawsuit is not entirely rational.
2) they all* deal with Josten’s, which won’t want to be be doing two different things, and their “advice” will carry a lot of weight.
The other possibility, of course, is that they outsource yearbook production entirely, and place the entire production into the hands of a professional editor.
*all may be too strong a word here, but I haven’t seen any evidence that convinces me otherwise. The business is probably a natural monopoly.
Totally disagree. Consider a student newspaper. Might the editors of that newspaper be required to print letters or other editorial submissions from the students? Sure. But surely they aren’t required to print such letters without editing? Or without considering appropriateness or quality? Could they be required to print a Penthouse Forum-like letter just because a student wrote it? And they certainly couldn’t be required to print it on the front page.
The yearbook shouldn’t be any different. Public forum or not, it’s still a publication that can and should be subject to editorial discretion within reason.
And forcing them to publish her photo doesn’t interfere with their right to free speech?
There is just a little more to this story that isn’t evident. The school allows students to incorporate their interests into their photo. For instance, a skateboarder may show a picture of himself on the halfpipe, a skier on skis, etc. Per the news interview with the girl, she does modeling. She said that this was an exhibit of her modeling interests. Rhetorically, if everyone else can show their interests, why can’t she?
And if her interest were nude modeling?
Just because students are allowed to illustrate their interests doesn’t mean they’re allowed to override the book’s standards. There were a least two well-publicized cases over the past few years where a student wasn’t allowed to pose with weapons.
That’s kind of a straw man argument. It’s not nude modeling. The yearbook’s standards don’t preclude this particular picture. They just want her to pay to have it included.