Archive for Uncategorized

Information About MyEx.com?

If you have information about MyEx.com that you’d like to share, please contact me with a working email address or phone number:

adam.steinbaugh@gmail.com
(562) 686-6990

Who Runs Revenge Porn Site Whozacunt.com?

(This post is part of a series of investigative pieces attempting to identify the owners of “revenge porn” websites.)

WhozaCunt.com: The Revenge Porn Site Down Under

WhozaCunt.com is a revenge porn site “dedicated to helping you get even with bitches and assholes and give them what’s coming to them! [...] Make them famous – they deserve it!”  Having posted the nude photos of men and women against their will, the site subjects its victims to a bizarre ‘takedown’ ritual.  The site’s takedown policy requires victims themselves (and not a lawyer or family member) to provide a copy of their photo ID, another photo of the victim to prove they’re making the request, ”proof” of the date the images were taken, and a “counter declaration,” without elaborating what the victim is supposed to declare.

When victims complained, the site would post their full emails, along with their photo IDs, and state opaquely that they had failed to comply with the takedown process.

Some victims of the site assert, credibly, that they were under the age of 18 in the photos featured on Whozacunt.com.  For example, one victim circled some, but not all, of the nude photos in her profile, to indicate which ones were taken while she was underage.  Whozacunt refused to remove the profile or any of the photos and instead re-posted the circled photos.

When challenged, the site takes an aggressive stance to increase the humiliation of its victims.  One woman and her parents complained to the Illinois Attorney General’s Consumer Protection Division, alleging that Whozacunt.com was refusing to remove nude photos of somebody else (and posted under the victim’s name).  The day after Whozacunt.com received a letter from the Consumer Protection Division, a new site arose using a domain consisting of the young woman’s full name, along with her nude photos.

Who could be this cruel?  A guy who cares more about cruelty to pigeons than cruelty to people.

Read more «Who Runs Revenge Porn Site Whozacunt.com?»” class=”more-link”>Read more «Who Runs Revenge Porn Site Whozacunt.com?»

A Vigilante Statement of Intent

Over the past year or so, I’ve been writing a series of investigative pieces documenting who I believed was operating so-called “revenge porn” sites.  It’s probably time that I explain why.((I mean, aside from the fact that it’s funny to reveal that a guy who was a professional pigeon racer now runs a revenge porn site.  Seriously, professional pigeon racer.  That post goes up tomorrow.))

With few exceptions, the people operating these websites go to differing lengths to obscure who is running the site.  There’s a reason for that.  Their friends, family, significant others, and professional associates probably wouldn’t be as supportive if they knew about their hobby of humiliation for profit.  So, too, would victims, lawyers, occasionally law enforcement, and the John Q. Public like to know who runs these sites, and why they run them: is it because they’re embarrassed, because they fear lawsuits, or because they’re engaging in outright extortion?

And I would like to know, too.  While there’s a debate to be had about the First Amendment implications of revenge porn, one thing is certain: more speech criticizing these sites, their practices, and their owners is protected.  Exposing and criticizing owners pressures them to end their practice, deters others from starting sites, and guides law enforcement, lawyers, and victims in locating the owners.

Thus far, I’ve written about IsAnybodyDown’s Craig BrittainTexxxan’s Hunter TaylorYouGotPosted’s Kevin Bollaert, and WinByState’s Casey Meyering.  One of these sites shut down voluntarily, two others after being sued, and two of these owners are facing extortion charges. While I would like to claim credit for taking these sites down,((There is always someone with a skill and too much time on their hands. I happen to be one of those people.)) much heavier lifting has been done by the victims who raised awareness and pressure on law enforcement to act, the law enforcement officers who did act, and the lawyers who navigated new legal territory.  Perhaps I’ve had no impact at all.

Nonetheless, I believe that public pressure — more speech — works.  One site, AnonIB.com, shuttered last week after its ownership was purportedly revealed and, in its stead, issued a statement:

Apology to the girls who were posted on site against their will and especially those that had to donate to have their pictures removed. Its a warning to those that abuse others online. There are forces that work to track and expose them, and those forces WILL win in the end. There are plenty of girls and boys, women and men, who willingly want to be naked on the internet so post their pictures instead.

By my count, three dedicated revenge porn sites remain.  I know who owns each of these sites and, often, the people who support them.  They should and — if their sites remain online — will be criticized.

Tomorrow, another name gets added to the list.

Casey E. Meyering of Tulsa, OK Arrested in Connection With Revenge Porn Site ‘WinByState’

Casey Meyering booking photo

Casey Meyering’s booking photo, courtesy KTVU.

Casey E. Meyering was arrested yesterday in Tulsa, Oklahoma in connection with his revenge porn site ‘WinByState’.  Meyering faces five counts of extortion in California for requiring victims of his website to pay $250 to have nude photos removed from his website.  Meyering utilized a website, “TakedownHammer.info,” to create the impression that money was being sent to an independent company, as opposed to the owner of the revenge porn site.

I exposed Meyering’s fraudulent practice in June.  The Los Angeles Times reports that Meyering is resisting extradition to California.  Per his arrest report, below, Meyering was found in a Tulsa hotel room and resisted arrest.

Meyering was previously known in Tulsa as the drummer of local band FM Pilots.  Reached for comment, the band says:

None of us knew about his involvement in revenge porn. He was terminated for other reasons. This is all very big shock. He hasn’t been playing for quite some time.

Meyering is the second revenge porn site owner to face extortion charges in California.   Kevin Bollaert, who operated YouGotPosted, was arrested on thirty-one felony counts in December and is awaiting trial.  Revenge porn kingpin Hunter Moore was arrested on federal ‘hacking’ charges in January. Nobody, including Meyering, has been charged under California’s new revenge porn law, at least in part because the Communications Decency Act prohibits many state-level criminal charges against website owners.

Meyering’s arrest demonstrates that the California Attorney General’s office is serious about pursuing extortionate revenge porn site owners — Bollaert’s arrest was not a one-off.  It also shows that California authorities are happy to travel across the country to seek out their targets.

A source familiar with Meyering told me over the summer:

He has seen your blog… and said any publicity is good publicity.

I guess not.  Updates as this story develops.  Meyering’s arrest report is below.

Read more «Casey E. Meyering of Tulsa, OK Arrested in Connection With Revenge Porn Site ‘WinByState’»” class=”more-link”>Read more «Casey E. Meyering of Tulsa, OK Arrested in Connection With Revenge Porn Site ‘WinByState’»

Hunter Moore Pleads Not Guilty; Meet His Co-Defendant, Charlie “Gary” Evens

Hunter Moore, the so-called “revenge porn” progenitor, made his second court appearance on charges that he hired co-defendant Charles “Gary” Evens to access email accounts of five women in order to find and post their nude photos on his now-defunct website, IsAnyoneUp?

Hunter Moore's attorney, Robert Holley

Moore’s attorney, Robert Holley

With his parents in tow, Moore was arraigned on and sheepishly plead not-guilty to fifteen counts of violations of 18 U.S.C. §§ 1030 (unauthorized access to a protected computer, popularly referred to as ‘hacking’), 18 U.S.C. § 1028A (aggravated identity theft), 18 U.S.C. § 371 (conspiracy), and 18 U.S.C. § 2 (aiding and abetting).  His co-defendant, Charles Robert Evens, entered a not-guilty plea in January and was released on $60,000 bond.

In attendance at Moore’s arraignment was Dr. Charlotte Laws, widely credited with amassing the evidence and public pressure on law enforcement to act.

At his initial appearance in January, Moore was ordered to assist Federal agents in shutting down his online accounts and websites.  Moore is prohibited from having access to the internet, a computer, or a cell phone.  Moore was released from custody in January after posting a $100,000 unsecured appearance bond — that is, he and his parents have agreed to pay the government $100,000 if Moore skips town.

After the hearing, I waited outside for Moore, along with a camera crew from Inside Edition.  When Moore spotted us, he sprinted away, holding his backwards hat down, while his lawyer laughed.

Who is Charlie “Gary” Evens?

Charlie

Moore’s co-defendant, Charlie “Gary” Evens

Little is known about Moore’s co-defendant, Charlie Evens.  What is known paints a picture that contrasts greatly with Moore.  Where Moore welcomed his status as an internet villain, Evens is a more sympathetic defendant — although that’s not difficult.

A resident of the Los Angeles area and 2006 graduate of Notre Dame High School, he was a “skipper” on Disneyland’s jungle cruise ride before working for Deluxe Entertainment Studios as a Digital Asset Manager.  On the side, Evens produced and hosted a short-lived live comedy show (the creatively-named “Charlies’ Comedy Show“) featuring moderately well-known comedians.

Evens was convicted of driving under the influence in 2012 and remains on probation.

In May 2012, the Village Voice described in detail allegations that a “Gary Jones” was using social engineering tactics to access email accounts, and that Hunter Moore would post nude photos from those accounts.  ”Gary,” in a moment of empathy and self-pity, apologized to one victim and told her that he had just been arrested for his “3rd DUI” and was struggling with sobriety.  The email address disclosed in the Village Voice article appears to match that in the indictment against Moore and Evens.

Moore, responding to allegations that the sources of his nude catalog were more than just spurned ex-lovers, told the Village Voice:

“I’ve had tons of hackers give me shit,” he told me over the phone, insisting that Section 230 of the Communications Decency Act of 1996, the same federal law that has shielded his site from prosecution all along, absolves him of legal responsibility. [...] “It always comes back on the hacker. I’m not gonna lie. I’ve paid people for content. I don’t give a fuck. You can say that. If I’ve paid for content, they have to submit the same [way] as the user. It would all fall back on the user.”

The law Moore cited in his armchair lawyering, Section 230 of the Communications Decency Act, generally protects websites and their owners from liability for content submitted by users.  However, Section 230 is expressly inapplicable to Federal criminal law, and is not a license-by-virtue-of-website to commit any criminal act under the sun.

The trial of Evens is scheduled to begin on March 25 before the Hon. Dolly M. Gee. There was some confusion over the date of Moore’s trial, but was tentatively set for April 8.  I plan to attend and report from the trial.  Moore has retained Robert M. Holley and Evens is represented by a Federal public defender. The public documents in the case are available here and here.

Revenge Porn Kingpin Hunter Moore Indicted on Federal Hacking Charges

According to this report from TIME Magazine’s Jessica K. Roy (who previously worked the revenge porn beat for Betabeat), revenge porn kingpin Hunter Moore has been indicted in connection with Federal hacking charges. The indictment reportedly includes 15 counts and also charges an alleged associate of Moore (Charles Evans), is reportedly in the Federal District Court for the Central District of California, in Los Angeles.  (I live a few blocks from the courthouse, so I’ll be attending any hearings in the matter.)

Moore has long been the subject of an FBI investigation concerning his hacking.  In previous tweets to me, Moore claimed to have been raided “6 times” in a since-deleted tweet.

The Los Angeles courthouse may be unfamiliar to Moore, but he’s previously been held in contempt by a judge there in a civil case, and owes over $300,000 in default judgments relating to his online activity.

Moore was due to DJ this weekend at Dim Mak Studios, a Los Angeles club.  Previous appearances at clubs around the country were cancelled due to protests.

Moore’s indictment is not yet on PACER, the public access website for federal court filings.

Update: The indictment (below) alleges that Moore told Evens, who he knew to be accessing e-mail accounts  (without authorization of the owner) to acquire nude photos, to “hack more” and “hack all week for me.”  Moore then paid Evens via PayPal and wire transfers, ostensibly for the photos.

Revenge Porn – Moore-Evens Indictment

China’s Internet Traffic Redirected, But Not to a House in Wyoming

The New York Times has a piece out this morning involving China’s Great Firewall, China’s instrument of controlling the online content available to its citizens, that, if true, would be hysterical.  The article begins:

In one of the more bizarre twists in recent Internet memory, much of the Internet traffic in China was redirected to a small, 1,700-square-foot house in Cheyenne, Wyo., on Tuesday. [...]

[Domain name servers associated with China's Internet], which act as a switchboard for Internet traffic behind China’s Great Firewall, routed traffic from some of China’s most popular sites, including Baidu and Sina, to a block of Internet addresses registered to Sophidea Incorporated, a mysterious company housed on a residential street in Cheyenne, Wyo.

The Times provides a picture of the quaint cottage where a substantial portion of the world’s internet traffic was apparently misdirected, and describes past reports into this mysterious collection of mailboxes and corporate registrations.

And, of course, the Times‘ report took off, repeated by Slate, the Washington Post, Gizmodo, the Daily Dot, so on and so forth.  It’s a funny story that lets us mock the incompetence of China’s censorship techs.

But the Times’ report conflates a physical mailing address with an internet network address.  An IP address (or block of IPs, rather) is registered to a corporation.  The registration (which can be found by searching a WHOIS database, such as ARIN) reports the registrant’s mailing address, not the physical location of the computer associated with the IP(s).  While Sophidea, Inc. might register a block of IP addresses, the associated servers may be anywhere in the world, far from Sophidea’s corporate headquarters or, as here, mysterious post office box.

Sophidea, Inc., also provided the Wyoming Secretary of State with a mailing address elsewhere in Cheyenne, this one a small office building also used for designations of corporate agents.  (A designated agent is a person or corporation which will accept legal paperwork on behalf of a corporation, so that the true owners don’t have to establish an office or, for the benefits of privacy, reveal who runs the business.).

But reporting that China accidentally sent its internet traffic to a small office building (which also didn’t happen, to be clear) doesn’t provide the same amount of bemusement as imagining that China’s internet traffic was sent to a house.

So where did China’s internet traffic really go? It’s impossible to know without knowing which specific IP addresses were the recipients of the traffic.  However, taking the IP addresses from the range of IPs registered to Sophidea, Inc. (e.g., 65.49.2.0), and running a visual traceroute suggests that the final destination was somewhere in Asia, as the trace times out in Malaysia.  Of course, my skills in this arena are rudimentary at best, and I invite more informed minds to offer their own analyses.

But I’m confident that the traffic never got anywhere near Wyoming.

Update, Jan. 23, 2014: Two quick updates:

1) The Atlantic and Colorado Independent have joined in countering the Times story.  The Independent reached out to the upstream provider for (or, rather, apparent host of) Sophidea’s servers.  An anonymous employee with Hurricane Electric confirmed that Sophidea’s servers are not in Wyoming (or, for that matter, Asia, contradicting my own post-hoc research), but are, rather, in California.  Barring any unreported configurations of Sophidea’s servers, that forecloses the possibility that China’s data was redirected to Wyoming.  (The Independent‘s report also correctly notes that the Times, The Atlantic and I missed the fact that the address of Sophidea’s IP registration had changed and was not simply in addition to the quaint little house in Cheyenne.)

2) The Times‘ original story was briefly ‘corrected’ to note that:

“An earlier version of this post misstated where Chinese Internet traffic was redirected. It was redirected to a building in Cheyenne, Wyo., not a house.”

Of course, that correction was also erroneous: the data was not sent to Wyoming at all, much less a specific house or office building.

The original post has now been replaced with a lengthier story that ran on the front page of the Times this morning.  The new iteration is better, focusing on the mysterious circumstances of the enormous hiccup in China’s internet traffic and the (understandably) private Sophidea.

The new post provides this blithe correction to yesterday’s misleading report:

An earlier version of this post misstated where Chinese Internet traffic was redirected. The physical location of the servers receiving the traffic is not clear.

So, a correction to a correction.  Of course, yesterday’s report elided this critical fact. China’s Internet was not redirected to a house in Wyoming, to an office in Wyoming, or to Wyoming at all.  Yet, Times cybersecurity reporter Nicole Perlroth is sticking to her guns, contradicting the Independent‘s source (a Hurricane Electric employee who stated that the servers were in California) with this gem:

 

Nonsense.  A proxy server shields the identity of the sender of traffic (e.g., a computer in China), but generally doesn’t shield the identity of the recipient of the data.  Moreover, if the location of the IP address couldn’t be known (because proxy!), why did the Times report that the data was going to Wyoming?

Update II (Jan. 23, 2014): The Washington Post has a more precise report, which provides the actual IP: 65.49.2.178.  Running a traceroute on this IP confirms that the server is in California (and operated by Dynamic Internet Technology in a Hurricane Electric datacenter), corroborating the Independent‘s source.

Ares Rights Continues Questionable DMCA Censorship For Ecuador, Targets Chevron

Ares Rights, An Unproductive Exercise In Censorship By DMCA

In June, I wrote about Ares Rights, a Spanish firm being used by Ecuador’s government to censor dissidents by way of meritless copyright claims. Their technique is as unproductive as it is reckless: Ares Rights issues a DMCA takedown notice — utilizing an American law — targeting material that is clearly a fair use of insubstantial content created by (or related to) state-sponsored media outlets.  The offending material is briefly taken offline and then made public again once the targeted dissident (and the host of the material) catches on.  It’s hard to divine what goal Ares Rights (and Ecuador) think this abuse serves, leaving only the conclusion that the practice serves only to harass dissidents.

Ares Rights’ DMCA notices have targeted (among other things) Rosie Gray’s reporting on Ecuador’s spy program for Buzzfeed, a documentary critical of Ecuadorian president Rafael Correa, and photoshops accusing the father of Ecuador’s vice president of rape. ((That’s not to cherry-pick a few questionable DMCA notices from the known Ares Rights claims: I can’t find even a single reasonably legitimate copyright claims pursued by Ares Rights on behalf of Ecuador or another South American state.)) What limited success Ares Rights has achieved has been erased, and then some, as two of Ecuador’s newspapers (El Comercio and El Universo) have since criticized the practice.

The Bigger They Are, The Dumber It Is To Hit Them: Ares Meets Chevron

Now, Ares Rights is reportedly targeting Chevron ((Yes, the multinational oil conglomerate worth twice as much as the GDP of most South American nations, including Ecuador.)) over videos critical of an Ecuadorian judge’s 2011 ruling that Chevron was liable for $9 billion in damages resulting from rainforest pollution. Chevron has contested that ruling in a New York lawsuit, claiming (among other things) that the American plaintiff’s attorney who pursued the case blackmailed the Ecuadorian judge.

In the court of public opinion, Chevron has pursued a comparably aggressive approach, launching “The Amazon Post“, a blog documenting in some detail the American case and coverage of it. The corporation also provided videos on its YouTube account, “TexacoEcuador“.

According to a post on its “Amazon Post” blog, Chevron notes that readers “may have noticed that our videos on The Amazon Post are currently down” (well, no: the videos generally don’t have too many views, which makes the takedown even more dumbfounding, because now they will get more views). Chevron says that their videos were removed from YouTube at the behest of a complaint from Ares Rights in “late November.”

The notice on the dispatched YouTube videos indicates that they were removed “due to a copyright claim by Filmin”, likely referring to Spanish movie website filmin.es, a corporation Ares Rights apparently has unknown involvement with. What content, exactly, filmin.es owns that was used in Chevron’s videos is unclear, and it’s possible — perhaps likely — that filmin.es doesn’t own any content at issue, and is simply being used as a vehicle to censor a critic of Ecuador.

If Ecuador Can Censor Chevron, It Can Censor You

Some may balk at the notion that we should be worried about Chevron’s YouTube videos, and may insist — perhaps rightly — that videos produced by Chevron to bolster its public relations should be taken with a hefty grain of salt. These aren’t relevant considerations. We value the ability to speak, not whether the speaker deserves to be heard or believed, irrespective of whether the speaker is a corporate behemoth or a lone pamphleteer heralding the imminent fracking doomsday. A government abusing the law — whether its own law or that of another country — to intimidate critics of any sort is a danger to critics of every sort.

Chevron, for its part, has something many critics of Ecuador don’t: the resources to make Ares Rights pay for its censorious transgressions by pursuing a §512(f) claim for their abusive tactics.  Hopefully it will exercise them: it may not be a risk Chevron faces in the future, but it would sure draw more attention to the videos Ares Rights sought to memory-hole.

I’ve reached out to Chevron and filmin.es for comment. ((And sweet, sweet crude oil, which is probably a safer investment than BitCoins.)) I’ll update this post should I receive any further information.

Call a Spade a Spade: Mugshot Sites and Revenge Porn Sites are Extortion

The New York Times published this excellent roundup on the rash of online ‘mugshot’ sites, which scrape and publish mugshots, then charge the persons pictured varying amounts of ‘service’ fees to remove the photos, which quickly rise to the top of Google search queries for the person’s name.

This practice has been picked up by revenge porn sites. The first to do so was Craig Brittain, whose IsAnybodyDown site posted nude photos purloined using fake people on Craigslist personals ads, then used a fictional lawyer (“David Blade III”) to ‘negotiate’ with the site to take the photos down — for $250. (Brittain, to his credit, shut down his site and renounced the revenge porn business, although he’s never admitted to being David Blade.) Brittain’s efforts were replicated by UGotPosted.com, operated by Eric Chanson and Kevin Bollaert, who interposed a fictional company (“Change My Reputation”) to negotiate with their site to remove nude photos. After somebody tipped off PayPal to this scheme, “Change My Reputation” began soliciting payment by way of Amazon.com giftcards before shutting down entirely in September.

Today, a revenge porn site (which I will not name because it’s still active) demands that victims send $500 via Western Union to an individual in the South Pacific who likely acts as a middleman for the true operators of the website, while DMCA.com — otherwise a legitimate site — openly processes an “administration fee” to take down content for a site commonly used for revenge porn.

While credit card operators and Google are jointly evaluating their roles in unintentionally enabling these extortionate practices, the sites — deprived of the easiest methods of processing payments — will follow the revenge porn sites and begin using new methods of soliciting payment. While the larger sites may abandon the practice entirely (one would hope), scraping mug shots is not a difficult feat. The practice will continue so long as a single owner can continue finding new ways to process payments, even if for a short period of time, playing a long game of whack-a-mole while the larger competitors throw in the towel.

There are two simple solutions:

1. Police departments should stop posting mugshots publicly. The content largely derives from police departments posting booking photos en masse, whether the individual is later convicted, wholly innocent, or ever charged at all. Rather, the photos are published as a warning: don’t get arrested, because even if you’re not convicted, we’ll embarrass you. There’s little utility in publishing the photos: police could share the photos only with law enforcement officers as a means of identifying suspects. To sate the public interest, departments could continue to provide mugshots to media outlets or any member of the public willing to pony up a modest fee, creating a barrier to wanton scraping of free content by mugshot sites. To mugshot sites, even a modest fee would be cost-prohibitive to their business model, even if they could find a way to automate the process. Deprived of free content, mugshot sites will perish.

2. Call it as it lies: demanding payment to take down mugshots (or revenge porn) is extortion. The FBI has already taken the first step in identifying this practice as “extortion” and seeking victims, potentially the first step towards prosecution. To be sure, the application of extortion statutes (see, e.g., 18 USC § 875) is unclear in the internet context: is it extortion to solicit payment under penalty of continued publication of embarassing photos, once the cat is already out of the bag? I think so: even if I’ve already told Jim about your midnight rendezvous with your secretary, it’s still extortion if I offer to stop telling others who might be more invested, like your wife. Further, sites which create fake middlemen to ‘negotiate’ are likely engaging in wire fraud.

Until police departments stem the steady stream of mugshots in an extortionate attempt to get people to stop being arrested for petty crimes, these sites will continue to thrive, notwithstanding pressure from Google and legitimate credit card processors. In the meantime, law enforcement has plenty of tools to deter these extortionate sites.

Maybe the webmasters’ photos will even wind up on one of their former competitors’ sites.

Oh, Deer: Orange County, CA High School Forces Student to Remove NRA T-Shirt

CBS Los Angeles reports that Haley Bullwinkle, a sophomore at Canyon High School in Orange County, California, was ordered to remove a t-shirt promoting the National Rifle Association and depicting “a buck, an American flag and a hunter’s silhouette.”  The school took the action pursuant to its ridiculously overbroad dress code, ((This isn’t the first time Canyon High School has run into trouble with its students’ clothing.  In August of 2012, it nixed “Señiores and Señoritas Day”, an annual (and apparently officially-sanctioned) event during seniors’ week wherein students, as high school students are wont to do, often dressed in patently-offensive stereotypes.  I wager that the development and rigid enforcement of its dress code is an overreaction to that event.)) which prohibits, among other things:

Clothing or Jewelry that promotes or depicts: gang, drugs, alcohol, tobacco, violence, criminal activity, obscenity, the degrading of cultures, ethnicity, gender, religion and/or ethnic values. (In general, anything that is divisive or offensive to a staff member).

Canyon High’s principal emailed Bullwinkle’s father, stating, in part, that “The shirt had a gun on it, which is not allowed by school police.”  Note that the principal invokes, ominously, the authority of the school police – it’s the police, not administrators, who are enforcing this rule!  Nevermind that administrators wrote the dress code and that the principal, according to CBS, enforced it.  Pass the buck on the shirt about shooting bucks, if you will.

This dress code — and its application to prohibit a shirt promoting the NRA — cannot pass muster under either the First Amendment or California statutory protections for student speech. ((Notably, the dress code cites “Board Regulation #51321″ as the regulatory basis for its enactment.  That policy, if it exists, can’t be found among the online Orange County Unified School District Board Policies.  Perhaps the dress code meant to refer to BP 5132, which provides two options to OCUSD schools: require uniforms or ban gang-related apparel.  Unless a wildly expansive policy was enacted and is not online, Canyon High School’s dress code is outside the First Amendment, outside of the California Education Code, and outside even the OCUSD board’s policies concerning student apparel.))

While current First Amendment jurisprudence provides high school administrators some leeway in restricting student speech where it interferes with the educational process, it does not provide administrators an unrestricted ability to ban “anything that is divisive or offensive to a staff member.”  As Eugene Volokh pointed out when a West Virginia school overreacted to a similar NRA t-shirt in April, the Fourth Circuit Court of Appeals has held that a dress code banning “messages on clothing [...] that relate to [...] violence” likely ran afoul of the First Amendment.  To be sure, a prohibition against messages promoting violence (as in Canyon High School’s case) may be distinguishable from messages relating to violence (as in the Fourth Circuit case), although Canyon High’s dress code prohibits both depiction and promotion of violence.

Further, Canyon’s dress code is ridiculously overbroad, banning anything that offends any staff member and essentially granting officials unchecked authority to punish students for views they dislike. ((The principal’s justification that a t-shirt endorsing a particular political view (that gun owners have a right to bear arms) may be banned because it “promotes” gun violence may also be viewpoint discrimination.  I doubt that a t-shirt endorsing the view that guns should be outright banned would not be seen as ‘promoting’ gun violence, although it may well be prohibited under the dress code because it ‘depicts’ gun violence.  Perhaps this school is populated by other overly-sensitive staff members, ones who might be dedicated NRA members who would be happy to boot a teenager wearing an anti-gun shirt.  Such is the danger of subjective I-know-it-when-it-hurts-my-feelings policies addressing speech: any view can be silenced.))

Moreover, California provides statutory protection to student speech, beyond that provided to high school students by the First Amendment.  Education Code § 48950 provides, in part:

School districts operating one or more high schools and private secondary schools shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment [or the California Constitution].

The legislature, in enacting this law, specifically declared an intent that “a student shall have the same right to exercise his or her right to free speech on campus as he or she enjoys when off campus.”  There are some exceptions laid out in Education Code § 48907, but these largely track with well-defined exceptions to the First Amendment in general: obscenity, defamation, incitement to violence, and substantial disruption of a school’s orderly operation.  Wearing an NRA t-shirt approaches none of these boundaries.

In short, if you can wear an NRA t-shirt off-campus without a police officer measuring your wrists with shiny, uncomfortable metal, you can wear it on-campus without interference from overly sensitive high school administrators.

Switch to our mobile site