Student speech under fire under Sotomayor?

AllAboutSotomayor(Pink)Let’s take a look at the implications of Sotomayor’s ruling in the 2008 Doninger v. Niehoff.   This ruling relies on the 2007 Supreme Court decision in Morse v. Frederick, better known as the “Bong Hits for Jesus” case.  Joseph Frederick sued his principal and school district when he was suspended in 2002 for displaying a banner with the phrase “BONG HITS FOR JESUS.” Frederick unfurled the banner on a sidewalk outside the grounds of his Alaska high school, in view of students   gathered outside to watch an Olympic torch rally.  Because the Court considered students being excused from classes to watch the torch rally a school-sanctioned event, it found that Frederick’s act was part of this school-sanctioned activity.  The majority opinion by Chief Justice John Roberts stated that Principal Deborah Morse had exercised her responsibility to control references supporting drug use in a school setting.


Doninger v Niehoff builds off of “Bong Hits for Jesus,” but it goes even further in restricting student speech.  Avery Doninger’s blog posts can in no way be construed to have taken place in a school-sponsored environment.  Yet when they upheld a lower court’s denial of  the preliminary injunction,  Sotomayor and the two other judges on the panel effectively ruled that this kind of speech may be regulated and punished by the school district.

Justice Souter joined the dissent in the 5-4 decision of Morse v. Frederick, which argued that the majority was “deaf to the constitutional imperative to permit unfettered debate, even among high-school students.”  But if Doninger is any indicator, Sotomayor would have joined the majority:   Frederick’s banner would easily have qualified as a “substantial disruption” under her ruling in this later case.

John Turley, professor of law at George Washington University, said last week in the New Britian Herald that the Doninger ruling “cut deeply into student rights.”  It’s troubling that Sotomayor endorsed a ruling that allowed  the measure of “substantial disruption” to serve as a key criterion for censoring student speech.   The vague phrase could be easily applied to may kinds of speech critical towards school administrators.  The decision in Morse, according to Justice John Paul Stevens, similarly construed a “special First Amendment rule permitting the censorship of any student speech that mentions drugs, so long as someone could perceive that speech to contain a latent pro-drug message.”

From what we’ve seen so far, Sotomayor has done more to weaken First Amendment rights than to protect them.  Yet there’s some evidence that she might not always come down so hard on similar issues.  In the Doninger case, for example, she was joined on the panel by two conservative-leaning judges appointed by George W. Bush.   Speaking on her own, she might not have come to such a harsh conclusion.  Tomorrow we’ll look at a Sotomayor case that tempers her unfortunate Doninger ruling.

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3 Responses to Student speech under fire under Sotomayor?

  1. I think it’s important to look at Niehoff in context. I’m not a fan of the decision, but it was a ruling on a motion appealing a denial of an injunction, not a direct ruling on the merits of the claim itself. The issue facing Sotomayor’s panel wasn’t whether Doninger deserved to prevail, but whether she’d have “a clear or substantial likelihood” of doing so, which is a higher bar to reach.

    Also, Niehoff didn’t introduce “substantial disruption.” That’s a well-established legal standard, dating back to the Tinker case in 1969. The Court’s precedents in this area are mostly abominable, and I don’t see this ruling as a departure from them … in either direction.

  2. Great points–I’ve updated the post to reflect them. The fact that this was not a direct ruling on the claim is important, as the panel expressed sympathy for the defendant and may well have ruled differently in that circumstance.

    You’re right to point out that this case didn’t introduce “substantial disruption” and that it comes from the Tinker case. But in Tinker, the Court ruled that there was no risk of substantial disruption, and
    Justice Abe Fortas noted
    that, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Doninger does seem to take a step away from Tinker, and from free speech protection, in that regard.

    Whether or not Sotomayor still believes that justice was served in this case and would rule similarly in the future, certainly remains to be seen.

  3. Pingback: Courts favor “Douchebags”; Doninger redux, and the problem of school censorship when it comes to off campus Internet expression « Blogging Censorship

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