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Contact: Ariella Sult, ACLU of Indiana Communications Director, asult@aclu-in.org, 317-759-6425

May 14, 2019

The American Civil Liberties Union of Indiana filed a lawsuit Monday on behalf of Sean Small, who was a Senior at Scottsburg High School when he was arrested after posting a video of himself playing a video game during his lunch period.

The lawsuit filed against Scott County School District 2 and the Sheriff of Scott County claims that Mr. Small was subjected to a search, handcuffed, arrested and held in jail without probable cause or reasonable suspicion. Actions were taken against Mr. Small based on his expressive activity of sharing his gameplay in a Facebook post, in violation of the First and Fourth Amendments.

The video game, “The Walking Dead: Our World,” featured a location-based “augmented reality” mode and is set in the midst of a fictitious zombie apocalypse. The game’s augmented reality mode allows a player to fight computer-generated zombies that are superimposed over images of the player’s real physical world, as captured by the camera on his smart phone. The player’s goal is to stop hostile zombies by shooting them.

Mr. Small captured and shared an image of the hallway outside the lunchroom while playing the game. At no point in the video is a weapon pointed at anything other than the cluster of zombies, and it is never pointed in the direction of the images of “real” individuals.

Ultimately, criminal proceedings were dismissed; however, Mr. Small was held in solitary confinement in jail for two days and was expelled from Scottsburg High School. Scottsburg High School did not have a policy prohibiting students from accessing or using their phones while not in class.

“At no time did school officials or law enforcement have either reasonable suspicion or probable cause to believe that a crime had been committed or that a school regulation had been violated,” said Stevie Pactor, staff attorney at ACLU of Indiana. “The actions taken against Mr. Small occurred solely because of his expressive activity.”

“Schools have an obligation to both teach the Constitution and follow it. That means respecting equality and freedom of speech,” said Jane Henegar, executive director of ACLU of Indiana. “Students have the right to express themselves on social media. A school cannot punish a student just because it doesn’t agree with the content the student chooses to post.”

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