MADISON, Wis. -- A student's YouTube video degrading his Spanish teacher is protected speech but the boy is still delinquent for violating Wisconsin's law against abusing computer communications, a state appeals court judge ruled Wednesday.
The boy's attorney, public defender Eileen Hirsch, questioned how the court could issue a split ruling, contending the boy can't be prosecuted for anything if the video is protected speech. She said she hasn't spoken with the boy about asking the appellate court to reconsider or taking the case to the state Supreme Court.
Portage County Judge Thomas Flugaur found the 15-year-old Stevens Point Area High School student delinquent in juvenile court in September 2012 after deciding he was guilty of disorderly conduct and unlawfully using a computerized communications system. Juvenile court proceedings are secret; court records identify the boy only as Kaleb K.
According to the appellate ruling, the video featured the boy performing a rap about his Spanish teacher that was laced with crude and vulgar sexual language. The appellate ruling quotes Flugaur as saying the video is one of the most obscene and hate-filled things he's ever seen.
Hirsch argued on appeal that the boy can't be prosecuted under any statute because the video is protected free speech under the First Amendment.
She also contended posting the video on YouTube didn't violate the computerized communications statutes. Those statutes prohibit someone from sending a message meant to frighten, intimidate or abuse another person with the expectation the target will receive the message.
Hirsch said posting the video didn't amount to sending a message to another person because everyone can see it and posting it wasn't actively sending a message because it was available only to those wanted to view it. She also argued the boy tried to ensure his teacher wouldn't see it, telling his friends to keep the rap "on the down low and stuff."
Fourth District Court of Appeals Judge Gary Sherman ruled the First Amendment did protect the video. He noted prosecutors raised only one argument -- that the video is defamatory -- but didn't make the same contention during the lower court proceedings, invalidating the argument at the appellate level.
But Sherman didn't buy the boy's argument that posting a YouTube video doesn't amount to sending the message to another person.
Portage County Assistant District Attorney Veronica Fay Isherwood, who handled the appeal for the state, didn't immediately return a message Wednesday.