Monday, May 2, 2011

No First Amendment claim for student's offensive blog post

The Court of Appeals has ruled against a Connecticut high school student who sued under the First Amendment after she was denied the opportunity to run for student government after she protested a "battle-of-the-bands" cancellation by calling school administrators "douchebags" in off-campus blog post.

The case is Doninger v. Neihoff, decided on April 25. Doninger was a high-achiever in school, but the JamFest cancellation was enough to send her over the edge. On her blog, she referred to school officials by a most derogatory term and encouraged community members to bombard the district with phone call protests. These calls pulled administrators away from their normal job duties.

Students have the right to speak out so long as the speech does not "materially and substantially disrupt the work and discipline of the school," under a 1969 Supreme Court ruling, Tinker v. Des Moines School District. All public officials, moreover, are immune from suit if they reasonably believe they are not violating the law (even if, in hindsight, they did in fact violate the Constitution). This gives public officials the benefit of the doubt in close cases.

Doninger loses the case on qualified immunity grounds. While she created the blog post off-campus, school officials had an objective basis to find that it actually disrupted the campus. As the Court of Appeals (Livingston, Kearse and Cabranes) puts it:

The undisputed facts — that Doninger’s blog post directly pertained to an event at [the high school], that it invited other students to read and respond to it by contacting school officials, that students did in fact post comments on the post, and that school administrators eventually became aware of it — demonstrate that it was reasonably foreseeable that Doninger’s post would reach school property and have disruptive consequences there. ... [T]wo additional facts [show] that Doninger’s blog post portended foreseeable disruption to the school’s work and discipline: namely, (1) that the language Doninger employed (asking others to call the “douchebags” in the central office to “piss [them] off more”) was “potentially disruptive of efforts to resolve the ongoing controversy,” and (2) that in the midst of this controversy, Doninger’s blog post conveyed the “‘at best misleading and at wors[t] false’ information that Jamfest had been cancelled in [Doninger’s] effort to solicit more calls and emails to Schwartz.”

Moral of the story: if you want to protest the decision of your high school administrators, don't call them "douchebags."

There was another claim here. The school prohibited Doninger from entering a school election assembly with a T-shirt promoting her candidacy, which the school halted as punishment for the offensive blog post. Even if Doninger had the right to wear the T-shirt, school officials reasonably believed that it would disrupt the assembly, which gets them off the hook. This is the qualified immunity defense that I talked about earlier. Showing considerable deference to the judgment of school officials, the Second Circuit reasons:

Doninger and her supporters were clearly upset about the decision to remove her from the ballot, and were eager to speak out publicly concerning their views. Doninger had appeared on a local news show with her mother to talk about her blog posting and her resulting punishment. She attempted to discuss the news interview in class on the day preceding the election assembly, provoking another student to shout out apparent support in sufficiently disruptive terms that the student was sent to Niehoff’s office. By at least the early morning hours of the day of the election, Niehoff was aware of a plan by students specifically to bring t-shirts supportive of Doninger into an election assembly at which other students, including the two candidates for Senior Class Secretary, were scheduled to speak. Niehoff may not have known with certainty that permitting the t-shirts into the assembly would cause students to disrupt those speeches. But she could not responsibly have ignored the fact that Doninger herself, in her blog post of the previous month, had already demonstrated some willingness to incite confrontation with school officials. And we note further that Niehoff’s concern about the potential disruption of the assembly was partially borne out even in the absence of the t-shirts, when students shouted “Vote for Avery” and had to be warned to be respectful.

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