Avery Doninger’s case was just heard on appeal by the Second Circuit.

A teen who used vulgar slang in an Internet blog to complain about school administrators shouldn't have been punished by the school, her lawyer told a federal appeals court.

But a lawyer for the Burlington, Conn., school told the 2nd U.S. Circuit Court of Appeals on Tuesday that administrators should be allowed to act if such comments are made on the Web.

Avery Doninger, 17, claims officials at Lewis S. Mills High School violated her free speech rights when they barred her from serving on the student council because of what she wrote from her home computer.

In her Internet journal, Doninger said officials were canceling the school's annual Jamfest, which is similar to a battle of the bands contest. The event, which she helped coordinate, was rescheduled.

According to the lawsuit, she wrote: "'Jamfest' is canceled due to douchebags in central office," and also referred to an administrator who was "pissed off."

After discovering the blog entry, school officials refused to allow Doninger to run for re-election as class secretary. Doninger won anyway with write-in votes, but was not allowed to serve.

A lower federal court had supported the school. U.S. District Judge Mark Kravitz, denying Doninger's request for an injunction, said he believed she could be punished for writing in a blog because the blog addressed school issues and was likely to be read by other students.

Now I wrote extensively about this case some months ago, and really believe Kravitz dropped the ball here. After all, no one could plausibly argue that the school could impose this sort of ban on her had she appeared on a radio talk show or been interviewed for a television news show and made similar statements. The First Amendment would clearly apply in such a manner as to prohibit the district from taking action against Avery. Similarly, a blog post made from home on personal equipment outside of school hours cannot reasonably be seen as rising to the level of disruptiveness that could possibly justify allowing to school to reach out and punish Avery for a potential disruption of school – especially when the blog post was not discovered for several weeks after it was made and it could be clearly determined that there had been no disruption caused beyond district officials having to field a few extra phone calls and emails from members of the taxpaying public in regards to the operation of the district’s schools.

And most frightening, Judge Kravitz even acknowledged that what Avery had done was to engage in political speech seeking the redress of grievances – something protected explicitly by the Constitution.

My analysis from September still stands.

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 Avery'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.

Indeed, I’d argue that the need to overturn the decision is even more critical now. The school board is now arguing that it has the right to regulate student speech on the Internet precisely because it is a larger forum and can be used more effectively by students to communicate with each other and the public! Rather than preparing students to be citizens of a free society, this district is inculcating the values of a totalitarian countries like Iran, Cuba, North Korea, or Red China which punish their enslaved subjects for speaking out against their dictatorial regimes.

The case has been covered extensively, exhaustively and comprehensively at The Cool Justice Report.

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