Popular ignorance of the First Amendment laid bare in dispute over racy photos of San Diego student

Seminude photos, a limit-testing high school literary magazine, an underage high-school model, angry parents and a $1.5 million defamation claim against the school district. It all sounds like the ingredients for Hollywood’s next blockbuster. In reality, however, the claim is a frivolous attack on the freedom of the press that should never make it to the courtroom.

Monterey Salka, a student at Torrey Pines High School in Del Mar, originally appeared to be an advocate for students’ right to freedom of speech when she appeared seminude with two other students in the school literary magazine, Free Flight, in June 2005. Now her suit against the district attacks the very freedom that allowed the magazine to be published in the first place.

Salka’s $1.5 million claim ($500,000 of which her parents are seeking) against the San Dieguito Union High School District argues that she deserves compensation for “defamation, invasion of privacy, inadequate supervision, sexual harassment and related damages all stemming from unauthorized nude photographs,” as reported by the Student Press Law Center.

Salka’s declaration that the photos were entirely unauthorized makes it seem as if she were held against her will and forced to pose in photos she did not approve. However, this is simply not true. Salka freely exercised her First Amendment right to take part in a publication encouraging student expression. According to the San Diego Union-Tribune, her parents knew of the photo shoot and assumed the photos would be appropriate to their particular standards without ever questioning the school or the publication’s adviser about the nature of the photographs.

Furthermore, the photographs were not nude, nor intended as obscene. The 10-page spread, a commentary on the human form, features photos of the three models holding blank canvases and wooden frames in front of a white backdrop. No private parts were shown, as the models were either clothed in skin-colored tank tops and underwear or covered by blank canvases. In Salka’s photo, she is not fully clothed, but her hair covers her breasts.

“These photos reveal no more of the models than one would see on the beach or in a fashion magazine,” said Executive Director of the Student Press Law Center Mark Goodman, arguing that parental consent was not necessary in this situation. “When images are being used for a non-commercial purpose as they were here, consent is only necessary when private information is being revealed.”

According to the 1973 U.S. Supreme Court decision in Miller v. California, for material to be obscene, “the average person, applying contemporary community standards [must] find that the work, taken as a whole, appeals to the prurient interest; the work [must depict or describe] in a patently offensive way, sexual conduct specifically defined by the applicable state law,” and “the work, taken as a whole, [must lack] serious literary, artistic, political, or scientific value.”

The photographs do not illustrate such sexual acts or suggest them in a way that would be offensive to the average person. When there is no obscenity, a high school does not have the jurisdiction to censor photographs, which renders the lawsuit completely invalid.

The intent of the photographs was clearly artistic, not pornographic or indecent: Beneath the photo spread, Free Flight editor Matt Franks wrote: “The human form has been a subject of artists since the Greeks shaped Venus, Michaelangelo carved David, and Picasso reduced four women into smears of paint. Gia Battista, Ben Halstead and Monterey Salka step into frames to explore life as art and as artists.”

The validity of Salka’s complaint is even more questionable when considering her job as a model, for which she willingly takes risque photos.

One photograph, featured in her profile on the Pulse Management modeling agency Web site, depicts her wearing what appears to be a black bra and underwear — perhaps a bathing suit — and a pair of black boots, while another shows her in a lacy black bra and a skirt. Both of these pictures were taken with the consent of her parents, who filed no claim against the modeling agency.

An aspiring model could use the publicity boost and the money this kind of claim provides.

But even if the claim is in earnest and the parents are not out to cheat the system, one must still contend they have to take responsibility for the carelessness with which they dealt with the matter. The parents could have easily requested to see the photos before they went to print, yet they did not.

Now the claim could end up costing the district a significant amount of money at a time when, according to the Voice of San Diego, the San Dieguito Union High School District is battling an estimated $6 million deficit for the current school year. Even if the courts rule in favor of the school district, the legal cost of the suit will take money from other students who could have otherwise benefited from it.

Costly lawsuits such as this provide incentive for schools to censor student publications in the future in a manner that would prove detrimental to free expression, going against one of the nation’s most fundamental freedoms. So, before her “model behavior” causes any serious damage, Salka, along with her parents, need to drop this frivolous claim and its unwarranted attack on First Amendment rights.