CMLP on Doninger v Niehoff

Citizen Media Law Project is a wonderful resource.  I assign CMLP materials in the Internet law course and turn to it often for news and analysis of Internet speech, copyright, and privacy issues.  A post on January 29 addressed the Avery Doninger case, which I’ve followed for some time.  (I learned of the case through Andy Thibault, author of Law & Justice in Everyday Life, creator of the Cool Justice column and blog, and a friend from college.  I donated money to Doninger’s legal defense fund and received a heartfelt, appreciative thank you note from her.  Good manners go a long way.)  As a high-school junior in Connecticut Doninger expressed frustration in a blog post over a decision by her school’s principal, and called the principal a “douchbag.”  The school punished Doninger by preventing her candidacy for senior class secretary.  She sued in federal court to be permitted to run for class secretary, resulting in the first in a string of related decisions by the Connecticut U.S.D.C. and the Second Circuit.  Anyone interested in First Amendment speech issues generally, and speech issues in public schools in particular, should read the CMLP post and the linked decisions and documents.

One thought on “CMLP on Doninger v Niehoff”

  1. I find this case concerning. The district court’s claim that Doninger has no protection under the First Amendment simply because the school banned her from a “voluntary” extracurricular activity, that she supposively doesn’t have a “right” to participate in, doesn’t make sense to me. They are punishing her because they didn’t like what she said about them on her blog. Whether the punishment is expulsion, suspension, or banning her from extracurriculars, it is still punishment of some sort. There cannot be half a violation of one’s right to free speech. The court must distinguish and decide whether her right to free speech was violated or whether it wasn’t. If it wasn’t, then the school should be allowed to determine a fair punishment. If it was violated, the school has no recourse against her, and no punishment of any sort should be permitted. I also agree with Ginsburg’s notion that extracurricular’s are hardly considered “volutary” anymore.
    The district courts other holding that they could rely on the Fraser case, which “permits schools to punish students who use vulgar or lewd speech on campus” is also not quite right in my opinion. The court states that because it was “reasonably foreseeable” that the blog would come to the attention of school officials, they can use the Fraser case even though it was done off-campus. This is a very slippery slope. Where does it stop? Now students can be punished for language used off school grounds? I can understand the reasons for not allowing vulgar language on school grounds, but this is too much. Yes, Doninger probably shouldn’t have used the term “douchebags,” it was very rude, but it was her opinion and it wasn’t said on-campus. Students often say vulgar things about their teachers off-campus, it just doesn’t get documented. Furthermore, I find the claim that this online speech “substantially disrupts the work of the school” to be highly unlikely, and it wasn’t something that the school ever proved. Gossip, drama and controversy contantly fly around school campuses without disrupting the work of the school, and I seriously doubt that case is any different.

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