Circuit allows punishment for student's obnoxious blog post

A classic teenage firestorm over a high school "battle of the bands" has produced a First Amendment decision from the Court of Appeals which clarifies the standards governing off-campus student speech in the public school context. In short, the Second Circuit holds that a student who protested the school's decisionmaking on "Jamfest" could be punished for posting a blog which, among other things, called them "douchebags" and contained falsehoods which might disrupt school business.

The case is Doninger v. Neihoff, decided on May 29. The battle of the bands in any high school may be the social event of the year for many students. Imagine getting on stage to play before all your classmates! There is nothing like live music, whether its Jimi Hendrix at Monterey or a local band that's been practicing for months on end to win the trophy. The students in this case, though, were disappointed when the school cancelled Jamfest, and one of them, Doninger, posted a blog that openly criticized the high school administration and urged others to call the school in protest. The blog reads (spelling errors included):

jamfest is cancelled due to douchebags in central office. here is an email that we sent to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and
we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. andd..here is the letter we sent out to parents.

The post then reproduced the email that the Student Council members sent that morning. The post continued:

And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down.—

Although the blog was published off-campus, the school quickly found out about it once the phone began ringing off the hook from angry music fans. Unhappy with Doninger's blog post which contained some factual inaccuracies and called administrators "douchebags," the school prevented her from taking office as Senior Class Secretary or giving a speech at a school assembly regarding elections.

Doninger's First Amendment lawsuit is met with the well-known principle that student speech rights are diminished in the school setting. The Supreme Court told us that in Tinker v. Des Moines School District (1969). Over the years, the Court has upheld restrictions on student speech in a variety of contexts, including the use of vulgarity in the building and the principal's right to censor student newspapers. The Second Circuit has more recently held in Wisniewski v. Board of Education, 494 F.3d 34 (2d Cir. 2007) that the school can even punish students for objectionable off-campus speech (such as instant messages) that reasonably can be expected to find its way to their attention on campus. The Second Circuit tells us this time around that off-campus speech may find its way to administrators in ways previously deemed unimaginable, through blogs, instant messages and other forms of electronic communication.

What this means for Doninger is that the school can punish her for the email which called administrators "douchebags" and encouraged students to "piss her off more." It was reasonably foreseeable that Doninger's blog would reach school property and she had intended for that result. In addition, the blog post "foreseeably created a risk of substantial disruption within the school environment" since, among other things, the blog contained factual inaccuracies about why Jamfest was cancelled (prompting more angry phone calls to the school) and, of course the inflammatory language in the blog was not conducive to cooperative conflict resolution. Borrowing language from the Sixth and Ninth Circuits, the Second Circuit notes that:

“[s]chool officials have an affirmative duty to not only ameliorate the harmful effects of disruptions, but to prevent them from happening in the first place.” Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir. 2007); see also LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001) (“Tinker does not require school officials to wait until disruption actually occurs before they may act.”). The question is not whether there has been actual disruption, but whether school officials “might reasonably portend disruption” from the student expression at issue.

Finally, the Court of Appeals holds that Doninger's punishment fit the crime. She was prevented from serving as Senior Class Secretary. This kind of extra-curricular activity can be rescinded when school officials fail to comply with the obligations inherent in this kind of leadership role. Allowing her to serve in this position would further disrupt operations of the student government and undermine the values that student government is designed to promote.