Courts favor “Douchebags”; Doninger redux, and the problem of school censorship when it comes to off campus Internet expression

AllAboutSotomayor(Pink)Sonia Sotormayor’s joining Judge Debra Ann Livingston’s decision in the matter of Doninger v. Niehoff doesn’t provide information about her views relating to free expression.

The Doninger decision was made in the context of nuanced civil procedure, and law governing student free speech rights previously mangled and misconstrued by other courts.

If anything, the Doninger decision says more about the state of student free expression, than any one jurist’s take on free expression and the First Amendment.


Sotomayor and her colleagues on the Second Circuit, and her soon to be colleagues on the Supreme Court, are just several of many adults who are uneasy as to how to address people under the age of 18 using the Internet as a vehicle of expression.

So what is this preliminary injunction business?  Or how at first glance, two federal courts did not think Avery Doninger had a strong case against her school.

Procedurally, the Second Circuit panel was asked to rule on plaintiff Avery Doninger’s appeal of the decision by the federal court district in Connecticut  to not issue a preliminary injunction.

In layman’s terms this means that Avery Doninger and her mother Lauren Doninger sued school administers Paula Schwartz and Karissa Niehoff on the grounds that, among other things, the school had violated Avery’s right to Free Expression under the First Amendment.  Avery and her mother, in their complaint, requested that the district court make the school do something:  permit Avery to run for class office for her senior year.  The Doningers made this request under the theory that the court, in making the school reverse its punishment, would  right its wrong of punishing the high school junior for her off-campus internet speech.

The idea of a preliminary injunction is for the court to make one party to a case either abstain from doing something or to do something, all before the court actually tries the case and determines whether it is just to issue a permanent injunction (like a preliminary injunction, but after the court has made its final decision on the case).  A court will issue a preliminary injunction if it finds, based on the facts and the law presented at that stage of the proceedings, that the party asking for the injunction (here, that would be Avery and Lauren) has a case that is likely to succeed.

The lower Doninger court found that Avery’s case did not have a likelihood of success, and thus would not make her school do anything to right its wrong of penalizing the student for her off campus Internet speech.

And, this is the decision that the Doningers appealed, and why they came before Sotomayor in the first place.  The Doninger plaintiffs’ task was to convince the three judge panel to find that Avery’s First Amendment claims would likely succeed if actually tried in the lower court.   Note, the court was not asked to speak on the merits of Avery Doninger’s claim in itself, just whether or not such a claim had the potential to receive a favorable ruling and not waste the court’s time.

Thus, Judges Livingston, Loretta Preska and Sotomayor were not trying to figure out if the lower court had gotten it wrong following an exhaustive review of the facts and the law.  This panel was simply trying to decide whether the court below had been correct in determining that Doninger did not have much of a case in terms of her First Amendment claims.

Applying language of court cases addressing the censorship of student speech on school grounds to an off campus internet posting by a student: Make it work

Where the idea of “substantial disruptioncame from, and why this term means something different in 2009 than it did in 1969

The panel reached the conclusion that Doninger probably did not have a strong First Amendment case against the defendant school administrators based on recent interpretations of established case law addressing the issue of student free expression: Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, (1986) and Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, (1988).

These cases addressed student expression on school grounds.   The panel determined that it could apply the conclusions reached in these guiding cases to off-campus Internet speech based on a holding another 3 judge panel on the Second Circuit had made in 2007.   The case,  Wisniewski v. Bd. of Educ., 494 F.3d 34, 40 (2d Cir. 2007), cert. denied, 128 S. Ct. — (2008), had facts similar to those in Doninger, in that a student used a home computer to express less than favorable views about teachers and administrators at his school.  The Wisniewski plaintiff had also asked the district court to issue a preliminary injunction, and that court had denied the request for reasons similar to the District of Connecticut in Doninger.  Like Doninger, the Wisniewski plaintiffs also appealed the lower court’s decision and brought the matter to a 3 judge panel on the Second Circuit Court of Appeals.  The Wisniewski panel held that as long as the student’s off campus internet expression “create[ed] a foreseeable risk of substantial disruption within a school,” in that the speech had a likelihood of reaching school grounds (via the Interwebs) the school had the authority to regulate the speech.    The Doninger panel applied this analysis to Avery’s livejournal entry, and determined that her school acted within its authority in deciding that her expression created a foreseeable risk of substantial disruption within the school.

Both the Wisniewski court and the Doninger court relied on language used in Tinker, which provided schools with the authority to regulate student speech that had the  potential to “substantially disrupt the work and discipline of the school.”  The Second Circuit’s use of the term “substantial disruption” is much broader than that of the Court in Tinker, where the majority opinion made it very clear that

conduct by the student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

The Tinker majority also found that:

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibition cannot be sustained.”  Tinker quoting a fifth circuit case Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966).

The test for schools used to be rigorous on this issue, requiring that the disruption to be substantial.  Ronald Collins of the First Amendment Center, in discussing the Doninger panel’s application of Tinker, noted that it is

troubling is how the Doninger opinion applied Tinker’s speech-protective standards to regulate all off-campus expression so long as it might be deemed “reasonably foreseeable” that such expression would find its way to campus and then might cause some kind of “substantial disruption,” which as applied in this case is synonymous with any disruption, however insubstantial or however caused. The opinion seemed to equate “substantial disruption” with student complaints to school officials, who could have readily made a general statement to the student body to clear up any misimpressions.

Not permitting Avery to run for office:  Did the school really punish her for her speech, or just respond to legitimate pedagogical concerns?

The school punished Avery by not permitting her to run for office in student government for the next year.  Both the court below and this panel found that this punishment was reasonable, and that it did not infringe on Avery’s rights because

participation in voluntary, extracurricular activities is a “privilege” that can be rescinded when students fail to comply with the obligations inherent in the activities themselves.

The panel relied on the findings in the Hazelwood decision and agreed with the school’s conclusion that

that educators may exercise control over school-sponsored expressive activities “so long as their actions are reasonably related to legitimate pedagogical concerns”.  Doninger quoting Hazelwood.

In this case, the school’s pedagogical concern in administering its student government program was that student participants, such as Avery Doninger, learn good citizenship.  As the lower court noted, it was within the school’s discretion to rule that

any student who does not maintain a record of such citizenship may not represent fellow students.

You see, the school’s mission is to censor offensive speech, because, you know, the school is of a special nature and must safeguard, or something

The holdings in Fraser and Morse v. Frederick contributed dicta used by both Doninger courts in their decisions.   These courts, while refusing to decide on whether the holding in Fraser could apply to off campus speech, did find that it was within a school’s authority to

regulate ‘plainly offensive’ speech — that is, speech that is ‘offensively lewd and indecent’ — in furtherance of its important mission to ‘inculcate the habits and manners of civility,’ both as values in themselves and because they are indispensable to democratic self-government.  Doninger quoting Fraser at 681, 683, 685.

The facts in Fraser involved a student using “offensively lewd and indecent” while speaking in front of classmates, teachers and school administrators at a school sponsored assembly on school grounds.  At the time it was issued, the Fraser decision granted  schools the authority to remind students not to say ‘fuck’ on school grounds.  Now, in light of Doninger, it seems, that Fraser should be applied anytime and anywhere a student expresses something “offensively lewd and indecent”.

The panel also tied the Doninger defendants’ actions to the

special nature of the school environment”, and the idea that schools need to do whatever they can to “take steps to safeguard those entrusted to their care.

These ideas were the basis of the Surpeme Court’s holding Morse v. Frederick, where the majority held that a school had been within its authority to suspend a student for displaying a banner with the phrase “BONG HITS FOR JESUS.”  In Morse, the student had not been standing on school grounds, but his banner could be viewed from the front of the school.  The Morse majority did not provide a robust discussion of schools sanctioning speech that occurred off campus (but at an event that the Court determined was school sponsored) which is disappointing because it might have helped the Doninger panel in their decision making.

Overall, the Doninger decision defers to a school’s authority.  The decision was made with the belief  that defendants Schwartz and Niehoff, in their roles as educators and disciplinarians, would be able to present a compelling case for not letting off campus Internet speech, such as Avery Doninger’s, go unpunished.

Everyone’s doing it:  or why most judges, if asked to uphold a school’s authority to censor student off campus internet speech, would do it

Judge Livingston and her co-panelists didn’t reach a conclusion dissimilar from the conclusion reached by other courts on the issue of off-campus student Internet expression.  The Citizen Media Law Project’s database of threats bears this out, turning up courts that made rulings on sets of facts similar to those in Doninger, including

Blue Mountain School District v. J.S.

Layshock v. Hermitage School District

And while parents consistently remind their children that “everyone else is doing it” is a piss-poor excuse for bad behavior, here this argument demonstrates how Sotomayor, in joining Livingston, did not creating unique jurisprudence concerning the authority of schools to regulate student speech off campus.

What we really should be saying about the decision in Doninger

Now having considered the exacting context in which the Doninger decision was reached, we need to step back, and ask “is this right?”

Feel free to give this question the staccato rhythm a professor of mine in law school used to give this question when any his students appeared to be a little too complacent with a court’s application of  laws to facts.  I suspect that Professor (now Dean) Smith did this to jar us into thinking critically.  He wanted our need to consider  how the law might have been applied differently to become a compulsion akin to that song you can’t get out of your head.

This compulsion’s a good tool to have when analyzing controversial cases.

So in the matter of Doninger, and the panel’s conclusion: ” is this right?”  Did the panel get it right in Doninger?  What does it mean when schools have such a problem with a student’s off-campus Internet expression that disciplinary action of any nature or gravity is necessary?

In Doninger, and similar cases—the matter of free speech rights, and the idea that a student—a school child, who in the good old days, only shed a select few constitutional rights at the school house gate (and it wasn’t so much of a shedding, but a slight diminution of rights, and only then in limited circumstances)—regained those rights in their full glory once she got home and expressed herself—this idea has been lost in favor of allowing schools to discipline students by any means possible.

Here, Avery disagreed with how administrators at her school were dealing with planning the Jamefest.  Avery was not a rebel, nor an outsider whose mission in life was to flout the authority of her teachers.  She served on student government, and had taken an active role in planning Jamfest.  When her school’s administration seemed unresponsive to her concerns (and really, the concerns of the students she had been elected to represent)—she moved to alternative means of being heard out, one of them being the Internet.  Her use of the term “douchebags” was unfortunate in that it hurt her case in the eyes of the district and circuit courts, but did it really do harm worthy of being denied the privilege of being a leader at her high school?  Her school thought so—I imagine that Niehoff did not like the possibility of losing her argument with Avery, or to have their tiff broadcast on the Internet.   So Niehoff and co. punished Avery as a way to win the argument.  Avery’s rights were more or less overlooked.

Any idea what kind of civics lesson this teaches students like Avery?  She can speak freely anywhere, so long as what she says is pleasant and complimentary towards school officials.

Sounds like censorship to me.  The courts, the Doninger panel included, exacerbate this by granting schools the authority to decide that this sort of censorship benefits the school more than it harms students.

Conclusion:  we should worry more about any institution that disregards the right to free expression in the young, and not where Sotomayor stands

Sotomayor didn’t start this fire, and her judicial temperament does not suggest she will do much to stop it, if precedent is such that facts such as the ones in Doninger are interpreted to favor the school’s authority.

In the future, if lower courts begin to place student free expression rights above schools’ authority to punish even off campus Internet speech, Sotomayor’s understanding of the First Amendment, as evidenced in cases such as Quattrone, could lead to a result favoring free expression.

Until then, teachers leave them kids alone.

Our past coverage of Doninger can be found here, and here.

About Blog of the National Coalition Against Censorship

Blogging Censorship is where National Coalition Against Censorship staff weigh in on the censorship issues on their minds.
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3 Responses to Courts favor “Douchebags”; Doninger redux, and the problem of school censorship when it comes to off campus Internet expression

  1. Doninger says:

    Thank you for this clear distillation of the case in language accessible to non-lawyers.

    Would you comment further on the issue of disruption? The lower court found that Avery’s blog did not create disruption (the evidence was that only three people ever saw the blog before the superintendent’s 36 year old son went hunting for blog posts on his mother). The calls and emails that came in to the school were from an email sent earlier in the day re: Jamfest (no one was punished for the email). In fact, the Jamfest issues were resolved the morning after the blog post and the defendants did not find Avery’s blog until weeks after the blog posting. The Second Circuit found that there was disruption or potential disruption – but the fact was that there was no disruption.

    Thank you.

  2. Dear Doninger,
    Thank you for the compliment. I will see what I can do to address your question regarding the issue of disruption.
    The appellate court panel focused on the blog posting, which containing text from the email.
    I think the court used the language from Tinker (as it was used by the Second Circuit in Wisniewski) to discuss the blog post’s potential to create a substantial disruption in order to explain why older standards governing student speech on school grounds should be applied to off campus student speech.
    The panel’s standard seems to be dealing with expression that has the foreseeable effect of disrupting the school environment, as opposed to expression that has actually caused a substantial disruption. The panel seems to have relied on the school’s claimed that the email caused disruption, in order to explain why the school believed that Avery’s blog post had the potential to have a disruptive effect in the future. The panel, in siding with the school, found that schools should have the freedom to preemptively punish speech with the potential to cause substantial disruptions. The idea, here, seems to be that the school should be free to prevent speech that it thinks will cause disruption, even if that disruptive effect had not come to fruition.
    In other words, Avery’s blog was not evaluated on the actual disruption it caused, but instead the court considered its content in light of the school’s argument that they reasonably believed at the time that the blog had the potential to cause substantial disruption.
    I hope this answers your question,
    Jennifer Liebman, NCAC

  3. Pingback: Sonia Sotomayor: Judicial Minimalism and the Court of Last Resort « Blogging Censorship

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