Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, March 5, 2008

Breaking News 2d Circuit Hears Appeal Of Student Disciplined For Using Vulgar Slang On Internet Blog

2dcircseal Doninger v. Niehoff, No. 3:07CV1129, ___F.Supp. 2d___, appeal argued (2d Cir. March 4, 2008) Download DoningerUSDC.pdf is a critically important student free speech case to watch. A Connecticut High School Student used vulgar slang on an Internet blog which was sent from her personal computer while at home.  Specifically, she criticized the administration by saying "Jamfest is canceled due to douchebags in central office." The school, in turn, refused to allow plaintiff to run for re-election as class secretary. She then won with write in ballots, but was not allowed to serve.

The student sought a preliminary injunction asking the court to void the election and require a new election. In a 34 page opinion, U.S. District Judge Mark Kravitz on August 31, 2007, dismissed the student's First Amendment challenge. The court primarily relied on Bethel School v. Fraser, 478 U.S. 675 (1986), Morse v. Frederick, 127 S.Ct. 2618 (2007) and Wisniewski v. Board of Education, __F.3d__, 2007 WL 1932264 (2d Cir. 2007), to conclude that this speech was not protected. The court, rather  remarkably, held that this blog entry could be considered part of on campus speech because it was reasonably foreseeable that other students would view the blog and that administrators would become aware of it. Therefore, the school had the right to discipline the student. As the court stated:

Fraser and Morse teach that school officials could permissibly punish Avery in the way that they did for her offensive speech in the blog, which interfered with the school's "highly appropriate function. . .to prohibit the use of vulgar and offensive terms in public discourse."

What! This case is easily distinguishable from the others. Fraser was a case involving student sexual innuendo's during a speech a public school assembly. Morse involved a message advocating the use of drugs at a school sponsored event and Wisniewski involved a student instant message sent from the students home computer where a student suggested that a certain named teacher be shot and killed.

This case is a far cry from each one of them. You had a good High School Student being critical of the administration outside of school. No violence was involved, no drugs were involved and there is not a hint of danger. The student was simply expressing her opinion, in a vulgar way, that was not obscene. This is how students often speak.

As Tinker held in the 1960's, students do not shed their constitutional rights at the school house gate. While there First Amendment rights are not has extensive with that of the general public, they have the right to express themselves so long as no violence, disruption or illegal activity is involved. That is exactly this case.

This case was also not "on campus" and  the Judges reasoning is difficult to follow. Look for this case to be reversed by a vote of 3-0.

A Boston Globe article about this case is available here.

Mitchell H. Rubinstein

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