Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, September 9, 2009

Student Press Law Center Files Amicus Brief in Doninger Case

From Frank LoMonte, Executive Director of the Student Press Law Center

The Student Press Law Center ("SPLC&"), the nation's only nonprofit legal-assistance organization serving student journalists, filed a friend-of-the-court brief today in support of a Connecticut high-school student punished by her principal for using a personal, off-campus blog to criticize school policies and urge the public to contact the school with their opinions.

In a friend-of-the-court brief filed September 4 with the Second U.S. Circuit Court of Appeals in the case of Doninger v. Niehoff, the SPLC urged the appeals court to reverse the ruling of the U.S. district court, which found that Avery Doninger's First Amendment rights were not violated when she was punished for using a blog on to vent about a dispute with her principal over the use of school facilities for a concert. The school claimed that Avery's conduct was "disruptive,&" even though there was no evidence that anyone read the blog item at school, or that the blog had any disruptive impact on school.

"If allowed to stand, the lower court's decision will chill the exercise of First Amendment rights, for it suggests that off-campus speech may be punished if it is designed to ‘influence fellow students,' or if it encourages communication with school officials to challenge their decisions,&" the SPLC said in the brief.

Volunteer attorneys Joseph P. Esposito, William E. Potts and Edward A. Wyatt from Hunton & Williams LLP in Washington, D.C., one of the nation's top media-law and litigation firms, prepared and filed the brief for the SPLC.

Frank D. LoMonte, an attorney and executive director of the Student Press Law Center, explained that traditionally, schools have had no authority to punish off-campus conduct unless the conduct took place at a school-supervised event, such as a field trip. "Because schools often claim the right to control and punish what students say in school-funded newspapers, it is especially important that students retain the full First Amendment rights of citizenship when they are on their own property and on their own time,&" LoMonte said. "If schools are allowed to dictate what students say outside of school, then schools will have nearly unlimited ability to prevent negative news stories from coming to light.&"

LoMonte said the Doninger case exemplifies a dangerous trend in which schools have claimed that speech using electronic modes of communication is so much more pervasive and accessible than speech on paper that it is entitled to lesser First Amendment protection. "The Supreme Court has made it abundantly clear that online speech is of equal constitutional dignity with speech in print. The fact that only four known individuals read Avery Doninger's blog – none of whom did anything threatening or disruptive in response to it – goes to show that students' online speech is not so qualitatively different from speech in print that the courts should consign it to ‘second-class' constitutional status,&" LoMonte said.

The U.S. District Court for the District of Connecticut ruled in January 2009 that Avery's First Amendment rights were not violated when Principal Karissa Niehoff barred her from assuming office as secretary of her senior class at Lewis S. Mills High School in Burlington, Conn. Judge Mark R. Kravitz ruled that Avery's blog commenting on her dispute with the school administration was not protected by the First Amendment, because it used a coarse word ("douchebags&"), and because it could have been expected to cause a "disruptive&" level of public contact with the school – even though the judge acknowledged that the only actual "disruption&" was caused by the principal's own decision to miss a school meeting so she could use that time to discipline Avery. The judge did allow Avery to proceed on a secondary claim, that her First Amendment rights were violated when the school forbade her and her classmates from wearing "Team Avery&" T-shirts to a school assembly to express their opposition to Principal Niehoff's decision.

Public school students' First Amendment rights are governed by the Supreme Court's landmark 1969 ruling in Tinker v. Des Moines Independent Community School District, which held that – even on campus during school – students may freely express their opinions so long as their expression does not "materially and substantially disrupt&" school operations. "If calls and emails from parents and students are deemed sufficient to establish ‘substantial disruption or material interference,' then school officials will have free rein to suppress any off-campus student newspaper or speech that challenges their decisions, and public school students will no longer enjoy protection under the First Amendment,&" the SPLC said in its brief. "Indeed, the more substantive and hard-hitting the student's journalism, the more likely its censorship will be lawful.&"

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics.

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