September 01, 2007

Shocking Decision In Douchbag Case

And if the decision in Avery Doninger's case is upheld down the road, it appears that this ruling will effectively mean that no student has First Amendment rights to speak on any matter related to school at any time or in any place free from the heavy hand of censorship and punishment by the school administration.

Avery Doninger may have been off campus when she wrote an Internet post calling officials in her Burlington school district a derogatory name.

But school officials were within their rights when they punished her for the comment as if she had made it on campus, a federal judge ruled Friday, because Doninger's writing related to school and was likely to be read by other students.

U.S. District Judge Mark Kravitz's ruling marked the court's first stance on a lawsuit that Doninger's mother, Lauren, filed against two officials in the Region 10 school district after Avery Doninger, then 16, was prohibited from seeking re-election as secretary for her class at Lewis S. Mills High School in May. Punishing Avery Doninger for the comment - she called school officials "douchbags" (sic) in her Internet blog - violated her right to free speech, the Doningers argued.

Friday's ruling didn't decide the case, but resolved a request by Doninger's attorney for an injunction to allow Avery Doninger to run for class secretary. Kravitz's ruling denying the request noted that Doninger had not shown "substantial likelihood" that she would succeed in challenging the constitutional validity of her punishment.

But Kravitz's ruling also foreshadowed a case involving far more than a misspelled insult posted on the Internet. It concerns what kind of expression schools can regulate, whether schools can sanction behavior outside school, and just what can be considered on- or off-campus in the Internet age.

"The whole issue of blogs and off-campus e-mails is coming to the fore. Courts themselves are kind of feeling their way along," Kravitz said in court Friday. "These are difficult issues."

Now as one commentator notes, the Courant article is not completely accurate in its characterization of this decision, because this decision dealt with the issue of a pretrial injunction rather than the actual merits of the case. However, it does show that the judge is initially predisposed to rule in favor of the district based upon an initial presentation and examination of the facts at hand.

But let's consider the judge's opinion itself (34 pages long, yet miraculously issued a mere 45 minutes after closing arguments!).

In the opinion, Judge Kravitz states that the internet presents new challenges for school administrators, and that the courts have yet to fully shape the boundaries of school authority when it relates to the Internet. But in his recitation of the facts of the case, Judge Kravitz makes one important factual concession that shows his decision to be wrong.

Avery, J.E., P.A., and T.F. decided to send an email to various taxpayers, informing them of the situation and requesting that they contact the school superintendent, Paula Schwartz, in the LMHS central office to demand that Jamfest be held in the auditorium on April 28.

This email, which urges the public to contact public officials on a matter related to the operation of a public school, clearly qualifies as political speech. And given that Avery's later posting on her LiveJournal site reproduced the email in its entirety, it is virtually impossible to argue that the LiveJournal post does not similarly constitute political speech -- and it is that post which was used as the basis to prevent Avery from seeking reelection to her class officer position AND which later led the school to refuse to count write-in votes for her and to attempt to hide the ballots and the vote tally when repeated FOIA requests were made for them.

Now the judge conflates the standards found in the Morse and Fraser cases to argue that the school's action is justified in this case because the speech was disrespectful, uncivil, and potentially disruptive (despite the fact it took place away from school, the judge ruled that Internet speech can be treated as on-campus speech if any member of the school community can read it). But in doing so, he ignores Justice Alito's concurring opinion in the Morse case, which essentially controls and limits the reach of school authority in cases of political speech.

I join the opinion of the Court on the understanding that. . . (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue. . . .

As such, the most recent Supreme Court decision regarding student speech, which Judge Kravitz uses to permit the school to take action against Avery Doninger, clearly prohibits the school from doing so. And given that the standard in Tinker requires the speech to cause a substantial disruption before it can be suppressed, A side-by-side reading of the two decisions must lead to the conclusion that the school's actions were wrong.

As for the application of the Fraser standard, it needs to be remembered that the lewd sexual language in that case occurred in a middle school auditorium, before a captive audience of students. No one can maintain that the facts here are even remotely similar. Calling an administrator a "douchbag" on a webpage might be uncivil, rude, and (arguably) inappropriate, but no one who does not voluntarily access the page is exposed to that message -- and it is possible to prevent any disruption caused by blocking the page from the school computers. The facts simply do not fit with the Fraser precedent.

In light of that analysis, I'd go further. Judge Kravitz cites a series of cases in which courts have held that students have no right to participate in extracurricular activities. While I am generally in agreement with him, I think the reasonable application of the Tinker and Morse standards is necessary here. If, in fact, students do not shed their First Amendment rights at the schoolhouse gate, and if schools may not restrict political speech, then it is absurd to argue that a student might be banned from extracurricular activities for their speech on political or social issues. No rational legal scholar would argue, for example, that the Tinker children could not be suspended or expelled for the black armbands but could be denied a place in the school band, on an athletic team, or in student government for that same anti-war speech. No judge would rule that an administrator could bar a student who maintained a blog that commented against abortion or in favor of gay rights from membership on the debate team or the chess club. And more to the point, it would be seen as frighteningly un-American if a school district were to impose an extracurricular ban upon students who maintained a website opposing a school bond issue.

And quite frankly, the judge probably needs to consider the Supreme Court ruling in Cohens v. California as well. If the word "fuck" is protected speech in a political context, it is impossible to argue that "douchbag" (or its correctly spelled version) does not maintain similar protected status -- especially given that no action was taken against a student who posted a comment on the blog referring to the district superintendent BY NAME as a "dirty whore".

Another issue to consider is the fact that Judge Kravitz has ruled that speech on the Internet can be considered on-campus speech if it relates to school and students can see it at any time, including while at home using their privately-owned computers. This treats the Internet in a manner different from any other media, and essentially exempts it from First Amendment protection. I seriously doubt, for example, that Judge Kravitz would have ruled that Julia's use of the word "douchbag" on a picket picket-sign on a public sidewalk in front of the administration building during a protest of the cancellation of Jamfest could be treated as on-campus speech, even if students passing by on vehicles saw the sign. Similarly, were the protest covered by the news media, photos or video of such a sign in the press coverage could not convert her speech into an on-campus disruption of the educational process. Neither would placing signs in her yard, posters in public places, or an ad in the local newspaper. And were she to write a column on the issue that appeared in the press -- perhaps in a local alternative newspaper -- I cannot imagine any judge declaring her use of the word "douchbag" to be on-campus speech merely because a fellow student could read it. On what legitimate basis does the judge treat the Internet differently and place it beyond First Amendment protection under Tinker, Fraser, and Morse?

At this point, the only individuals directly harmed by this decision are Avery Doninger and the students who wrote her name in during the class election (incidentally, she won the office according to a tally of the ballots when they were eventually obtained under the states FOIA). And yet the speech of every student in her school is chilled by the decision allowing even a temporary victory to the officious administrative douchebags who chose to make an example out of her for her exercise of her First Amendment rights in her home using her own computer outside of school hours. But the potential for damage to the First Amendment rights of every American student is even greater. Judge Kravitz's decision must be overturned.

UPDATE: I've been in touch with Avery's mom, and she assures me that they are appealing to the Second Circuit. However, the pursuit of this lawsuit is a financial drain. Would you consider helping out?

OPEN TRACKBACKING AT Stop the ACLU, The Virtuous Republic, Is It Just Me?, Rosemary's Thoughts, DeMediacratic Nation, 123beta, Right Truth, Inside the Northwest Territory, Nuke's News & Views, , Webloggin, Leaning Straight Up, The Amboy Times, , Conservative Cat, Right Celebrity, Woman Honor Thyself, The Uncooperative Radio Show!, The Crazy Rants of Samantha Burns, The World According to Carl, Blue Star Chronicles, The Pink Flamingo, and CORSARI D'ITALIA, thanks to Linkfest Haven Deluxe.

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"But Kravitz's ruling also foreshadowed a case involving far more than a misspelled insult posted on the Internet. It concerns what kind of expression schools can regulate, whether schools can sanction behavior outside school, and just what can be considered on- or off-campus in the Internet age."

Schools regulating what you can say and do off campus or on the Internet?
Well, looks to me as another really good reason to homeschool.

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