Avery Doninger is the student that many wish their own kids would be, smart, involved and caring. Now, here name will by synonymous with something different, a crushing blow against free speech by a student on the internet, now that the 2d Circuit has rejected her arguments for a preliminary injunction on appeal. Here, here and here are past posts on this case, and the mother-lode can be found at Cool Justice.
According to the Hartford Courant,
Ruling in a case that addresses broad questions of the boundaries of free speech in the Internet age, a federal appeals court on Thursday effectively ended a Burlington student’s effort to serve as a class officer and speak at graduation.
[T]he court’s ruling weighed in on a hotly contested and evolving area of the law, freedom of expression on the Internet. The three-judge panel stopped short of declaring how far schools can go in regulating offensive Internet speech made off campus, but stated that the school did not violate the Constitution in disciplining Doninger because her blog post “created a foreseeable risk of substantial disruption” at the school.
The mantra of old was that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.” Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969). But that was before the internet existed. Apparently, everything has changed.
While the earlier rule held that students maintained a constitutional right to speech, even within the school yard, the Circuit’s vision is that they not only forfeit speech going into school, but do so again on the way out. Avery’s challenge to school officials’ hegemony was made in a blog post, well beyond the proverbial schoolhouse gates of the past. But there are no longer any gates, literally or figuratively, when it comes to student speech.
The test applied by the Circuit is extremely curious, holding that the district was appropriate in disciplining Avery because her blog post “created a foreseeable risk of substantial disruption.” Almost as a matter of historic definition, weeding out acceptable exercise of Freedom of Speech because it had the potential to create thought and ideas that might be disruptive fundamentally undermines the right. What point is there to speech that evokes no thought or ideas? It’s disruptive speech that the 1st Amendment protects.
The disruption the blog post caused, the court wrote, included students getting riled and administrators receiving phone calls and e-mails that made them miss or come late to school-related activities.
Even so, the ruling said, the relevant issue was not whether disruption occurred but whether school officials “might reasonably portend disruption.”
While this might be mistakenly viewed as a recognition that disruptive speech is protected, don’t be fooled. This aspect serves only to relieve school officials of the duty to prove harm first, allowing them to foreclose speech for their own mere anticipation. It further reduces the test to one of theoretical disruption, providing even greater deference to school officials to discipline students despite no adverse consequences.
If protected speech is limited to a chat about who’s taking whom to the prom, or what the popular girls were wearing to the dance, no protection would be needed. The irony of the Circuit’s decision is striking: What better speech to protect than that which challenges government officials?
But the irony doesn’t end there.
The court also emphasized that Doninger’s discipline barred her from an extracurricular activity, and that the blog post was inconsistent with the school’s policy that student government representatives have a record of good citizenship.
Citizenship has always been one of those phrases that has been subject to facile misconstruction. Is citizenship blind obedience to the will of the government? Were Jefferson, Washington and Madison bad citizens? No, Avery’s deed doesn’t place her in the pantheon of American heroes, but her right to express them is the natural child of their efforts and ideals. Avery Doninger challenge to heavy hand, the knee-jerk reaction of government officials is the epitome of good citizenship, except when the determination is being made by the very people criticized. Only then does good citizenship get redefined as “obedience to governmental authority.”
This decision not only has dire significance for student speech, one of the “tail wagging the dog” areas of law that invariably ends with courts digging deep to find a way to defer to school officials, whose love of students stops abruptly when their might and wisdom is question. But it also has significant implications for online speech, a realm where courts remains particularly out of touch.
The pervasiveness of online communication, its breadth and reach, scares the daylights out of courts. They can order a person to be silent; indeed, they can imprison a person to stop her from speaking her mind. But the courts have no control over the internet, where ideas flow instantaneously around the world, beyond the reach of even the mighty Circuit judge, and remain forever no matter how forceful an order he issues.
So, some petty school officials smacked a student who posted a negative and vulgar comment about them. The Circuit had a chance to enforce the Constitution, and instead chose to hide behind deference to these petty officials, lest they lose their ironclad control over a bunch of kids. The court elected to protect the petty officials from embarrassment, and instead embarrassed itself, the country and our self-proclaimed respect for freedom of speech.
The relief no longer matters for Avery Doninger, who is now past the discipline these petty officials can level. But it speaks to the farcical nature of our proclaimed love of freedom, as it’s denigrated by this far-reaching decision. What a sad lesson about freedom and the Constitution was taught at Lewis S. Mills High School in Connecticut and the Second Circuit Court of Appeals in Manhattan.
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I think this is one area where our views diverge greatly.
So you don’t believe that students should have any free speech when it comes to criticizing school officials? Or that courts should defer to whatever decisions school officials make? Or that we should be raising our children to be lemmings, obediently following the commands of school officials without question?
I think there’s a bit of everything, albeit sans the spin you put on it. Obviously you’re using extreme examples to make your point, but as we all know, life isn’t that black or white.
Students can be spiteful, and while freedom of speech is a vital freedom in any democracy, and a cornerstone of any just legal institution, young people have to be taught both restraint and wisdom. There are Internet sites that are designed to ruin the reputations of other students and teachers, regardless of the truth. While many of these students learn this from bombastic political fights in Washington, and possibly their own home towns, few 16-year-olds have done anything to warrant an all out public tar-and-feathering. However, if the courts feel comfortable removing the freedoms of the young, how will they feel about removing the rights of convicts, anarchists, communists, religious fanatics and so on? It’s a slippery slope, but young people have to be taught and protected.
A Civics Lesson From a Young Woman
Avery Doninger has had quite a ride through the
courts.
From Cool Justice:
While Avery Doninger was banned from school office, another student who called Schwartz a dirty whore was given an award and lauded for citizenship.
Life lesson #482:
Nobody wants to be called a d-bag, but even a school administrator likes to be called a “dirty whore” every now and then.
This is, without a doubt, the best comment I’ve ever seen.
Further, as the decision makes clear (IMO), there was more than just the use of the word “douchebags”.
She misrepresented the administrators’ position on “Jamfest” and whipped up a bit of a frenzy at the school, causing, at least, some disruption.
She was not expelled, suspended or sent to detention. She was merely prohibited from holding office as a student representative, which, in the administrators’ opinion, she proved herself unworthy of.
I think the reports of the demise of the First Amendment are greatly overblown.
I bet that if you were to look back at this characterization of the issue some day, you would cringe and recognize what’s wrong with what you just wrote.
First, it’s not whether you (or anyone else) thinks the punishment for speech is trivial, though denying someone the right to hold elective office as punishment for speech is itself quite extraordinary.
Second, the use of the word “misrepresented” is dubious, and you of all people should know how court’s characterize things to suit their result.
Third, she intended to cause disruption, and did cause a small amount, which is the very heart of free speech.
Fourth, the holding extends limitations on student speech outside the school for the first time, and extends the school’s reach to student speech on the internet. See any parallels here that could be of concern?
This is a huge decision for student speech, and I doubt that you will find much to be proud of by trivializing it.
Well, isn’t regulation of student activities always treated differently than activities of adults? It is.
The use of the word misrepresented comes from the trial court’s findings of fact. Not being personally involved in this case, that is the only thing I have to rely on and I see no reason to doubt that. She was told that Jamfest could and probably would be rescheduled, yet she wrote in her post that administration had canceled it. That is misrepresentation.
As to your third point, I go back to the difference between civil disobedience (which this most certainly is not – please don’t do a disservice to real civil disobedience in the name of this kid) in the adult world and disruptive activities by students in school that undermine the orderly administration of the school.
The holding does extend limitations on speech made outside the school, but the critical point is that the speech was intended to reach the school and affect the school. So just because she stood outside the school gates (or in her house), to me makes little difference, for it was clearly her intent to affect the decisions made by school authorities.
I sympathize with her, but I cannot fault the school here.
It always better to opine from a position of more rather than less information. Try reading the old posts and the District Court decision first. Perhaps that will help to clarify things for you.
And as for civil disobedience, again, be careful not to trivialize Avery’s efforts. If what you consider trivial civil disobedience is dismissed as inconsequential, then what you consider meaningful may be trivialized by someone else.
This case isn’t about the term douche bag – it’s about an incredibly broad application of the “potential to cause disruption” standard. How, under these facts could the blog post have the potential to cause disruption when no one even found out about it until 2 weeks later when the incident had blown over? Under this standard, Harriet the Spy would have been kicked out of school for writing nasty things about her classmates in her private journal since those communications also had potential to cause disruption. This case is insane andas I wrote at Blogwatch, the administrators acted like a bunch of bullies.
I can’t explain why, but Gid’s got a hate on this case. Hey, he’s on the right side most of the time. As long as he rest of us know better, he can get one wrong every once in while.
Nice to hear from you, Carolyn. Miss having you around.
Gideon,
You are incorrect on a number of facts. First, there is discrepancy in the testimony – the principal denies she said the event was cancelled. Avery always contended that those were the principal’s words, but Avery’s blog also stated that if there was a chance of having Jamfest at all it would be in May – so the notion of holding it at some point was included in the blog. Further, all of the students who testified and the teacher stated that they believed that if the event was not held on 4/28 there would not be another date on the calendar. They also all testified that moving it to the cafe was not a plausible solution – in effect Jamfest was cancelled for 4/28.
It is also noteworthy that the principal testified that she spoke to Avery about the responsibilities of a class officer. This is interesting and remarkably prescient given the fact that Avery was not involved in Jamfest as a class officer, she was involved as a member of Student Council – a somewhat different body. Yet, miraculously, in the midst of all of this supposed disruption the principal thought to talk with Avery about class officers. Additionally, the testimony that Avery was ‘not to get people riled up’ is not confirmed by anyone else. Where do you find that Avery acknowledged this?
Next, it was determined that the phone calls and emails that resulted in the inconvenience (a far more apt description than disruption) to the administrators was the result of the mass email that four students, including Avery, sent early in the morning of 4/24 (13 hours before Avery’s blog). In addition to the original email the student who accessed his father’s email account to send the original email went home at 3 and sent more emails – no punishment. Avery posted her blog at about 9:30 pm, there is evidence that only 3 people ever saw her blog. At the hearing all of the students testified that they had never seen her blog. It was not found that any of the calls/emails were the result of the blog. On 4/25 the entire incident was resolved – until the superintendent’s 36 year old son found the blog.
The punishment was about the word ‘douchebag’ – it was underlined by the principal in red pen twice. There was never discussion about anything except ‘douchebag’ until it ended up in court. There are many more layers to this case that will be revealed at trial.
Thanks – I actually considered taking the thoughtful approach for a change. Whew!
I don’t have “a hate on this case”. As I said in my post, I frankly didn’t care enough till yesterday. I just disagree with your assessment of the impending doom of the First Amendment.
Serious Blawgers
An interesting schism came about in the past few days over the Avery Doninger
decision in the 2d Circuit.
Serious Blawgers
An interesting schism came about in the past few days over the Avery Doninger
decision in the 2d Circuit.
What Do You Call Someone Who Forces A 13 Year Old Girl To Strip?
Answer:
What Do You Call Someone Who Forces A 13 Year Old Girl To Strip?
Answer: