In Judge Randall Shepard’s major opinion Chapman v. StateDecision taken today
Cory Chapman, a Cory Chapman interlocutory appeal appeals to the trial court’s preliminary finding that the information he is accused of sending to an ex-student via text messages was probably harmful for minors. We affirm.
Chapman had been Student’s former band director. Chapman, who resigned from Student’s band director position, allegedly left messages to her saying that he loved and misses her. Student received many memes by text message from him, some of which contained sexual jokes. [see the exhibits -EV]:
- Picture of three women in their underwear with “Netflix adaptation”, “Anime,” or “Manga.”
- A picture of a woman’s face and bare shoulder with the words “When I see someone displaying positivity” … “Oh f**k yeah spread it”
- The image shows a straw suspended above a lidless cup with the words: “When she likes to you, but only as friend.”
- Here is a picture of a chalkboard that has the title: “Anime Tiddies” along with a list from the Pros column containing the following: “Big AF,” “2D,” “Jiggle Physics,”” “On ur waifu,” etc.
- The caption reads “When he takes his sweet time getting the cum rug” and is a picture of a cartoon-character with white fluid on its stomach.
- A picture of Spiderman with the caption “A teen boy’s body changes & he discovers he can shoot a white sticky liquid out of his body”
- Two pictures of a woman holding a chalkboard – in one picture the chalkboard states “Moms should get a fast pass to the front of the line at coffee shops. Honey, you’re 22 & slept 10 hours last night? Get to the back of the line” – in the second picture the chalkboard states “Moms should wait in line like everybody else. “You’re not unique because someone cummed inside of you.”
- A list stating “Make her p***y wet not her eyes,” “Make his d**k hard not his life,” “Break her bed not her heart,” “Play with her boobs not her feelings,” and “Get on his d**k not his nerves”
- A text stating “Day 26 without sex: threw the neighbors’ cat in the pool just so I can tell the homies I got some p***y wet over the weekend.”
- The text below states that “Day 147, without sex”: I ate fruit gushers in order to feel something squirty in my mouth.
- Text stating that Day 42559 was without sex. He got hit by an automobile and said, ‘You know what? I can take it more’.
Student disclosed the memes to the State, who then charged Chapman, Level 6, with dissemination of matter harmful for minors. Chapman requested a preliminary ruling on whether the information in the memes are likely to be harmful for minors, pursuant to Indiana Code section 35-249-2-4 (1983). The trial court ruled that the subject matter was “probably harmful” to minors after a hearing. …
Chapman has been charged by the state with intentionally and knowingly disseminating material that could be harmful to minors [in that] …:
(1) It refers or represents in any form nudity, sexual conduct or emotional stimulation, and/or sado-masochistic abuse.
(2) Taken as a whole it appeals at the purient desire to sex minors.
(3) It is clearly offensive to the prevailing standards of adult society as a whole in respect to suitable material for minors.
As a group, (4) it is not of any significant literary, artistic, or political significance for minors.
After a hearing under Section 35-92-4, at which copies were admissible into evidence, the trial judge subsequently determined that the memes, according to Section 35-92-2 criteria, are likely to be harmful to minors.
We caution that the pre-trial preliminary determination under Section 35-49-2-4 is just that—preliminary. This pre-trial preliminary determination under Section 35-492-4 does not require any conclusive evidence or beyond a reasonable doubt to meet the criteria set forth in Section35-49-2-2. On appeal we will generally look for any abuse of discretion in interlocutory decisions. An abuse of discretion occurs when the court’s decision is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law….
Although we are not in agreement that memes show sexuality or sadomasochistic abuse, sexual behavior and excitement cannot be denied. The following is what “sexual conduct” means:
sexual intercourse refers to acts that involve the sex organs of two people and their mouths or anus.
The condition in which the human genitals are subject to sexual stimulation, or arousal is called “Sexual Excitement”.
Section 35-49-2(1) doesn’t require that acts or conditions be described in detail. It allows these acts or conditions to be described and represented in any format. “Describe” can be defined as “to present or give an explanation of something in words” or “to represent it by using a picture, diagram, or model.” A representation is defined as: “to put clearly in front of the mind”; to serve as a sign/symbol of; “to portray;” “depict.” Combining these words with the expression “in all forms”, Subsection (1) covers anything that creates an image in the brain, functions as a sign or symbol and represents a figure. Accordingly, almost all, if not all, the memes here can be said to describe or represent sexual conduct or sexual excitement….
Both parties agreed that “prurient” is a term that refers to anything that “marks or arouses an unwholesome or immoderate interest or desire, especially sexual desire.” Chapman says that memes can be humorous but do not conform to this definition. The memes suggest, or use explicit language, to describe sexual activities and situations in crude, vulgar, or degrading terms. Thus, we conclude that the trial court fairly determined that the memes appeal to the prurient interest in sex of minors….
Concerning [patent offensiveness]Chapman claims that the court’s decision is incorrect due to the wide availability of memes via social media, which are accessible by minors. The widespread accessibility does not necessarily mean the memes are acceptable to adult members of a society. This applies to their beliefs about what is appropriate for children in the community. This preliminary decision is correct, particularly considering that the judge in the case, who was a member the community, looked at the memes and found them offensive.
The question of fact is for trial whether the memes were clearly offensive to community standards. As there apparently will be a trial in this case, the parties should provide evidence of whether and in what way the internet and social media platforms have altered the community standard on this subject in order to aid the factfinder in determining whether this particular matter violates the statute….
Chapman also asserts that the memes can have serious literary and artistic, political or scientific significance for minors. These memes comment on, mock, or make fun of current society. According to the State, memes can be considered crude jokes or sexual jokes. After discussing the content of these memes, the court concluded that it did not abuse its discretion by preliminarily ruling that this was true.
We therefore conclude the court was well within its discretion to determine the memes constitute matter that is probably harmful to minors….
Chapman states that, if sexually explicit memes are found to be harmful to minors then Section 35-93-2-3 is a violation of the First Amendment. It places an inacceptably high burden on protected expression. The State points out that Chapman didn’t raise the issue at the trial court. Failure to challenge the constitutionality of a statute in the trial court generally results in waiver of review on appeal…
Judge Paul Mathias concurred, adding:
“[T]The Internet has greatly eroded the values that are deemed “prevalent” in communities as well as in society since 1983 when this law was passed. This is evident in the case against teenagers. Ask any teacher at high school about the language used by students in hallways and during breaks. It would be easy to confirm the same thing by searching teenagers’ smartphones for inappropriate content.
Although the Internet is a great tool for good, it can also be misused to bring down people and cause harm. This has led to a reduction in values among minors and for all of us. There are many websites, blogs, social media sites, apps, such as Facebook and Twitter that provide uncensored information and addictive features for users. These applications have no cost other than the unlimited search of and downloading of user’s personal data for their benefit and sale to anyone who wants it.
What are the “prevailing standards” in any particular moment? Is there any matter that is “unsuitable for minors” by 2022? What are the “prevailing standards” in criminal law, rather than what we may aspire towards?
If the receiver cannot access the site without first selecting it, is sharing only the URL to a horrendous website offensive? Is it possible that the above-mentioned social media apps, which can be found on almost all of our smartphones, are “not suitable matters for minors,” because they do not directly address the subject matter? [not]accessible to minors.” All judges and jurors should consider all these aspects when they decide on and enforce “the prevailing standard.”
Is it possible for teens in high school to exchange matters that are not appropriate for them? This fact should be taken into consideration when defining what “suitable for minors” according to the prevailing standards in adult society. Is it possible for a cousin, brother or sister who has just reached 18 to “matter”? [not]”suitable for minors”, with a relative or friend who is under 18 years old. Students’ senior years of high school are filled with this kind of thing. Some students become adults while still in highschool, while others reach adulthood. What should this and other similar behavior tell us about “the prevailing standard”?
All of us need to be asking these questions, even the General Assembly. We must also ask where the freedom of speech … begin[s]And finally[s] with regard to this and similar alleged criminal conduct…. “[T]he prevailing standards …” must be defined as what is factual, rather than what is aspirational. It will become clear that 2022’s “prevailing standards for adult communities in respect of what is suitable material for minors” are different from 1983.
Judge Margret Robb dissented:
First, I want to say that I don’t agree that Chapman is exempted from the constitutional challenge. Chapman’s entire argument, from the motion for preliminary determination until now, is that Indiana Code section 35-49-2-2 and the First Amendment are entwined because matter is presumptively protected by the First Amendment unless the State can prove it is matter harmful to minors as defined in section 35-49-2-2….
However, my main objection to the majority’s decision centers on whether or not the subject is “patently offensive” to existing standards within the adult community with respect of what is suitable to minors.[.]” {[B]Because failure to meet any criteria will cause the conclusion to be invalid, and since I think criterion 3 is not clearly shown, I’ll limit my discussion on criterion 3.
Concerned parents tried to ban Elvis Presley in 1957 based on his sexually provocative hip gyrations. 60 Minutes broadcast an episode entitled, “Is Dungeons and Dragons Evil?” shortly after Indiana legislator codified that statute in 1985. Parents were worried that role-playing games could have a negative impact on their children’s morality. These concerns would be considered quaint by most adults in 2022. Material that was once vulgar is now easily accessible on most teens’ phones and other places. The shocking things that were once thought to be alarming are no more.
This case shows that law is still not up to date with the internet age. It has allowed us to define “community” in new ways, beyond the boundaries of our localities and even the borders of other countries. Although the majority acknowledges and laments the cultural shift wrought by the internet, it fails to acknowledge how this shift applies to what it means to be patently offensive under the standard we use to evaluate content today…. It is almost certain that the sexually suggestive memes in question are not appropriate and I would not recommend sharing them with a 17-year old. Nonetheless, I cannot find this material patently offensive to prevailing standards in the adult community with respect to what is harmful to a teenager on the cusp of adulthood in 2022….
Here are some thoughts
[1.]Indiana has a 16-year-old consent age. The law applies equally to both willing and unwilling recipients. It does not matter whether Chapman sent Chapman messages, or his love protestations to the student. This means that it would be criminal to send your girl friend these sexually charged jokes, but it’s legal for you to actually have sex.
[2.]This statute closely matches what it is commonly understood to be the First Amendment test to determine what speech, when given to minors, can be considered “obscene as minors” or “harmful as minors”. The outcome would not have been affected if Chapman, as the dissent implies, had properly raised the First Amendment defense during trial.
[3.]For a minor to be considered “obscene” or “harmful,” the expression must have been “in some way, significant, and erotic.” “[S]The uggest[ing]Or us[ing]I believe explicit language should refer to sexual activities in crude, vulgar and degrading ways.” This doesn’t suffice, I believe. I feel there must be an ability to sexually awaken, which this memes lack.