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Friday, May 30, 2008

Breaking News!!! 2d Issues Major Student First Amendment Decision Involving Blogs

2dcirseal Doninger v. Niehoff, ___F.3d___ (2d Cir. May 29, 2008), is a major student First Amendment free speech case. The facts are simple and straight forward. A disagreement arose concerning the "battle of the bands" concert. A high school student posted what was described as a "vulgar and misleading" message from her home on a publicly accessible web blog where among other things, she referred to the central administration as "douchebages." In turn, the school disqualified her from running for Senior Class Secretary and from speaking at graduation. Why? The administration concluded that the student's conduct "failed to display the civility and good citizenship expected of class officers."

Plaintiffs sought a preliminary injunction to allow the student to speak at graduation which presumably will occur in a few weeks. The District Court rejected plaintiffs First Amendment challenge and the Second Circuit affirmed. Significantly, the court noted that the this type of case was a bit different because the speech in question did NOT occur on school grounds or at a school event, but occurred on a blog, reasoning:

The Supreme Court has yet to speak on the scope of a school's authority to regulate expression that, like Avery's, does not occur on school grounds or at a school sponsored event. We have determined however, that a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct "would foreseeably create a risk of substantial disruption within the school environment," at least when it was similarly foreseeable that off campus expression might reach campus. . . But as Judge Newman accurately observed some years ago, "territoriality is not necessarily a useful concept in determining the limit of [school administrators'] authority." True enough in 1979, this observation is even more apt today, when students both on and off campus routinely participate in school affairs, as well as other expressive activity unrelated to the school community, via blog postings, instant messaging, and other forms of electronic communication.

The court held that it was reasonably foreseeable that the posting would reach campus and that the posting created a substantial risk of disruption because of the language utilized, that the student encouraged others to conduct the administration, and because her message was misleading which caused rumors to be circulated. Students were "all riled up" and threatened a "sit in".

Come on! While I believe the court applied the correct body of First Amendment jurisprudence, its reasoning is extreme and out of touch with reality. As the court also noted, this was a good student. She had a disagreement with the school and used the word "douchebages." She attempted to obtain support from her fellow classmates. The speech was off campus and the speaker was a senior high school student. This is exactly what the First Amendment protects. If this type of speech is not protected, then what type of speech will be protected? Is a student limited to merely saying "I disagree" or "please Mr. principal, change your mind."

Is the problem with the speech here that the word "douchebages" was used? If so, then the court is completely out of touch how students and others (lawyers too) talk to one another. Was there a real threat of disruption? I think not. The court appearantly "feared" disruption because the student sought support from others. However, that is exactly what the First Amendment protects. Does speech become disruptive because "rumors" circulate and others-repeat others-threaten a sit in?? It might be a bit differerent if the plaintiff was advocating a sit in or some type of violence. But that was not this case.

There is a second very unique part of this decision. The court noted that a relatively minor penalty was imposed (plaintiff could run for class office or speak at graduation) and hinted that a more severe penalty may have raised other constitutional concerns. What concerns would they be? Equal Protection? Due Process? The court here is deciding whether speech is protected under the First Amendment. I fail to see, how the level of penalty is a relevant consideration for First Amendment purposes.

As this case demonstrates, students have very limited First Amendment protections. Perhaps, this case will start a trend where students may look to the Equal Protection Clause and the Due Process Clause and challenge the level of discipline imposes. This issue is certainly ripe for law review commentary.

Mitchell H. Rubinstein

     

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